September 15, 2024 Letter

Thank you for your vote last Tuesday nominating me as the Democratic Party candidate to serve our neighborhood in the Senate next term. As my current term continues, I will now provide an update of my efforts to bring transparency and accountability to the Washington Bridge lawsuit. I apologize in advance for this letter’s length, which I believe is necessary to provide you with the relevant context.

A. A Proposal To The Attorney General:

In my September 2 letter, I explained how a February oversight hearing concerning the Washington Bridge closure was less informative than hoped because RIDOT deferred questions of responsibility until its completion of a forensic audit report, which it later refused to produce because of the lawsuit. I described my August 19 letter to the Attorney General, urging him to use his dual role as (1) co-counsel in the lawsuit and (2) the State’s open government lawyer to bring transparency and accountability to the lawsuit by taking these four steps:

A 4-Step Transparency Initiative

1.     Create a web page to inform the public about the lawsuit;

2.     Publish the court docket (filed pleadings, motions and court rulings) on the web page;

3.     Object to any motion to impose a protective order of confidentiality on discovery materials, including document production, interrogatories (answers to written questions) and depositions (pretrial testimony under oath);

4.     Publish the discovery materials on the web page. Any privileged materials would not be published, and any partially privileged materials would be redacted as necessary.

To be sure, this Initiative is just one proposal for the Attorney General’s consideration.

B. The Attorney General’s Response

1. A Promising, If Modest, First Step

This past Thursday (Sept. 12), the Attorney General announced his decision to carry out the first two steps of this Transparency Initiative, as reported by the Providence Journal. This a promising first step.

With that said, it is a very modest first step, as any Rhode Island attorney can access the court docket to view (and disseminate) the filed documents. Also, the court docket does not include discovery, which likely will include thousands of pages of documents, such as the forensic audit report, RIDOT documents, statements by RIDOT officials and the consultants) which may be critical for the public to know what happened with the Washington Bridge, how it happened and why. We should not have to wait (as we did for 38 Studios) until the lawsuit ends years from now to gain answers to these crucial questions.

2. A Disappointing Final Step?

I am concerned that the Attorney General plans to have this promising first step of accountability also serve as a disappointing final step. Although the Attorney General did not respond to my letter or a later telephone message, he did post this tweet on Thursday, the same day he announced his office’s implementation of Steps 1 and 2:

In the tweets, the Attorney General appears to propose legislative oversight hearings as a sufficient way for the public to learn answers to its questions without access to non-privileged documents that the Attorney General can publish if he chooses. The Attorney General’s proposal has an obvious flaw, as well as a deeper one.

1 The Obvious Flaw

The obvious flaw is that oversight hearings and the lawsuit investigation can and should work together, rather than as opposing alternatives. A decision by the Attorney General to disclose information gained in discovery will improve and enhance the productivity of legislative oversight hearings.

2 The Deeper Flaw

The deeper flaw with the Attorney General’s proposal begins with the complex and uncertain process of enforcing a subpoena, particularly if the court issues a protective order cloaking discovery materials in the lawsuit. Any investigation would have to begin by the collection of relevant documents. A document subpoena to State officials and/or attorneys could be rejected on various grounds, resulting in court hearings that may or may not succeed. Witnesses may refuse to appear or cite the protection of the Fifth Amendment.

More basically, the Attorney General is proposing in his tweets that the Senate undertake a time-consuming, laborious and uncertain process to create, or more accurately re-create, a file of documents that will exist the offices of the Attorney General (whose office is funded with tax dollars) and outside counsel hired by the State. What would be so wrong with sharing with the public, who bear the burden of the Washington Bridge closure and who are paying for the investigation now being conducted, the information that exists in those files before the conclusion of the lawsuit? Surely there is more that our Attorney General, who states on his website, “we value transparency in state and local government” can do.

D. Conclusion

It is my hope that the Attorney General will not let his promising first step towards transparency become a merely symbolic final one.  I acknowledge that the Attorney General has the ultimate authority about how to proceed. I suggest that the nature of this litigation and the policies and mission of his office compel him to do more to share with tthe public, in a timely manner, the information developed through a lawsuit that we are paying his office and outside counsel to litigate. The people of Rhode Island want timely answers to the questions we have had since December, rather than waiting for years until the lawsuit concludes.