Blue state won't disclose employees who manage its social media and allegedly censor user comments

Rhode Island's Access to Public Records Act, its version of the federal Freedom of Information Act, can be defeated with a simple tactic: claim that no single person made a decision.

That's the core argument made by the General Assembly's Joint Committee on Legislative Services to defeat a serial APRA filer's latest request, for the resumes of staff with posting and access privileges on the Ocean State Senate's X account.

Lawyer Nicole Solas, a yearslong bee in the bonnet of the state political and educational establishments, seeks to force public officials to stop blocking, hiding and muting critics and comments on social media they use for official purposes, which she alleges is unconstitutional.

She has gone after state Attorney General Peter Neronha, who dared her to "sue me" as the Supreme Court was evaluating the limits of public officials' control over social media interactions with the public, and Biden administration Secretary of Education Miguel Cardona.

"I'm looking forward to learning which interns, staffers, and senators at the @RISenate & @RIGenAssembly have been unconstitutionally censoring Rhode Islanders on X by hiding comments," Solas posted on X on Feb. 14, which she called the statutory deadline for JCLS to provide the resumes. "What are the job qualifications for censorship?"

JCLS cited that very post when Special Assistant AG Adam Roach asked for its response to the public records complaint Solas filed for allegedly missing the deadline, then denying her request the following week.

Based on Solas's posts, "it was reasonable for JCLS to determine that Solas intended to publish the names of staff and harass those responsible for the posting of Senate materials that she disagreed with" despite the fact they are only communicating the Senate's statements, general counsel Joseph Rodgers said in an affidavit.

"The concept of personal privacy was much different in a time before the existence of social media," the affidavit states. "What was understood to be an individual's right to dignity and privacy in 1979," when APRA was enacted, "is quite different than the privacy that exists in a digital world."

True to form, Solas attempted to shame Rodgers on X and mock his legal argument, as she portrayed it, that "records magically become 'private'" because of her own "protected speech," not because he claims the records are "non-public with no non-segregable portion."

It's unlikely Solas would consider that legal theory the most outlandish she's heard in her transparency battles within the state. Providence Public Schools asserted that gender identity was protected "medical information" to hide the identities of adult advisers to student LGBTQ clubs, and AG Neronha slow-walked her request to confirm public school volunteers are covered by APRA.

She's also suing the South Kingston school district and former board members for "working hand in glove" with teachers unions to sue Solas under the theory that records she sought would reveal teachers' private discussions and personally identifiable information.

Solas shared communications among her, JCLS and Special Assistant AG Roach with Just the News.

She separately emailed the public records office and Senate Communications Director Greg Paré on Friday, Feb. 14 after close of business to tell them it was their deadline to respond to her request. 

Rodgers' affidavit says Solas tried to engage Paré "in public debate" by tagging him in an X post asking "why can't you just communicate who controls the Senate X account?" She posted her email asking Paré to be a "good, transparent employee … so we don't have to go through this rigamarole of expensive and time consuming public records requests."

JCLS responded shortly before close of business Monday, Feb. 17, that individual employees are "not responsible for the content" of the Senate X account, which is "authorized by Senate leadership," and their resumes are not public records because they offer "little or no insight on how government operates," citing a 1989 Supreme Court precedent.

Three hours later Solas filed a complaint with the AG's Open Government Unit, bypassing internal appeal at JCLS, alleging the legislative entity violated the 10-business-day deadline and hence could not claim APRA exemptions without showing "good cause."

Even if it could, the argument that resumes of individuals "hired to carry out the official business of government" are not in the public interest is "ludicrous," she wrote. 

Their resumes show "the qualifications – or lack thereof" for their work of "communicating official business to the public," and "other legal issues may arise" such as the censorship she alleges from the Senate hiding public comments on its X account, "possibly in violation of the the First Amendment," Solas said.

"The State's failure to acknowledge its own failure to respond [to] my request after I generously emailed two accounts a reminder to respond is dishonest and should weigh heavily in the attorney general's decision to sanction the legislature for willful violation of the APRA."

JCLS responded to Roach on March 5, saying Solas filed her request after close of business on a Friday so the 10-business-days clock started the following Monday. 

General counsel Rodgers said Roach didn't have authority to intervene because Solas didn't internally appeal and she raised constitutional issues about the Legislature. JCLS noted it already had a bone to pick with the AG's office for considering direct appeals.

JCLS is not bound by the AG's precedents that "favor the release of resumes" as public records, at least in this context, because social media employees are simply "performing a ministerial function on behalf of the Senate, without attribution," he told Roach.

Even if Roach ignored the constitutional issues Solas raised, JCLS must "address those issues now" to prove its case, Rodgers said in the letter, which appears to have been drafted hastily to meet Roach's March 5 deadline under the same 10-business-days window. 

Rodgers used irregular punctuation and sentence structure in several places, and his affidavit also misspelled Paré's X account, misquoting Solas's X post tagging him accurately.

The state constitution prohibits that any lawmaker "be questioned in any other place," Rodgers said, and any statements made on the Senate's behalf "cannot be questioned in a forum other than the General Assembly in addition [sic], the hiring of staff and the managing of their activities in support of Senate operations is a legitimate legislative function." 

The provision "confers a privilege on legislators from inquiry into their legislative acts or into the motivation for actual performance of legislative acts that are clearly part of the legislative process," regardless of whether they are done "in the confines" of either chamber, he said.

While JCLS likely would have released most staff resumes "with the appropriate redactions" if sought, their qualifications are irrelevant to their work of "posting Senate authorized information" without "independent decisionmaking," and release of that information would be a "clearly unwarranted invasion of personal privacy," Rodgers wrote.

It's no different than if Solas had sought "the resume of a painter working in buildings and grounds" for the government "because she wants to see whether a house painter attended" the Rhode Island School of Design, he said.

It's not clear why Rodgers implied that Roach had excluded the constitutional issues Solas raised, since his Feb. 19 letter doesn't mention anything specific about Solas's complaint. "I think the JCLS is being a little dramatic," Solas told Just the News.