Unions May Have Major Legal Problem In Lawsuit Against RI Mom Nicole Solas Over Public Records Of Critical Race Teaching

Unions May Have Major Legal Problem In Lawsuit Against RI Mom Nicole Solas Over Public Records Of Critical Race Teaching

Nicole Solas, a Rhode Island stay-at-home mother, first told her story at Legal Insurrection about her problems getting information about Critical Race and Gender teaching in the kindergarten to which her daughter was enrolled and other schools in South Kingstown.

We have tracked developments from the start, which are now a national story with no end in sight:

• I’m A Mom Seeking Records Of Critical Race and Gender Curriculum, Now The School Committee May Sue To Stop Me
• South Kingstown (RI) School Committee Votes NOT To Sue Mom Nicole Solas Who Sought CRT Records
• South Kingstown Mom Nicole Solas: “They smear people who ask them questions, who disagree with them”
• Update: Smear of Mom Nicole Solas Was Prepared By Public Relations Firm Hired By South Kingstown (RI) School Committee
• RI School Superintendents Group: “We all know many of our citizens live in a separate news reality with Fox, Newsmax and their ilk”
• CRT Battlefront: Rhode Island School Superintendents’ Plan To Limit Public Records Requests Runs Into Possible ACLU Roadblock
• “Parents Will Prevail” – Rhode Island Mom Nicole Solas Reacts To Resignation of Pro-Critical Race School Board Member Who Smeared Her
• Rhode Island Mom Involved In Critical Race Public Records Fight And Targeted By NEA Gets High-Powered Legal Help

Things took an unexpected turn last week when two Rhode Island branches of the largest teachers union in the country, the National Education Association Rhode Island and NEA-South Kingstown, filed a lawsuit and motion for an emergency injunction against Solas and the school district and school committee from which she sought records. The lawsuit sought to prevent the district and school committee from turning over to Solas records the unions claim are private.

We covered the lawsuit and linked to the pleadings and motion papers in the following posts:

• Teachers Union Sues Mom Nicole Solas To Prevent School District From Releasing Critical Race Teaching Records
• RI Teachers Union Seeks Emergency Injunction Preventing Release of CRT Records To Mom Nicole Solas (Update)

In that latter post, I expressed great skepticism upon my initial review of the lawsuit on several grounds, including the highly unusual attempt of the unions to intervene in a public records process to which they were not a party:

Third, I can’t say it’s unprecedented, but it’s very unusual for an entity (NEA-RI) that is not involved in the public records process to seek to intervene in that process. Normally, the way these disputes reach court is that the entity refuses to turn over records claiming an exemption, and the requester seeks a court ruling for disclosure. That is what happened in the main case relied upon by the unions, Lyssikatos. That’s not the case here. Solas has not filed a complaint seeking records withheld by the District. This is just so bizarre that without evidentiary support the unions would run into court seeking an emergency injunction over a public records process to which they are not a party. If this process is permitted, it opens the court to issuing advisory opinions on records that no party to the public records process actually seeks to disclose, based on the fears by non-parties to that process.

I may have been too kind to the unions’ case. They may not have standing to sue as a non-party to the public records process, even if they are right that some of the records are non-public; that’s another doubtful proposition since extraneous but non-exempt documents are still subject to the public records law if in the possession of a public entity. Ultimately the public/non-public distinction may not matter in this lawsuit.

There is a Rhode Island Supreme Court case that is going to have to be addressed, and which seems to sink the unions’ lawsuit. Ilana Cutler, Esq., Legal Insurrection Foundation Investigations Counsel, found the case, and it appears to be good law. And let’s just say I was shocked to find a case seemingly so on point and not addressed in the unions’ papers that it could present a major problem for the lawsuit.

The case is a 2004 Rhode Island Supreme Court case, In re New England Gas Co., 842 A.2d 545, 551–52 (R.I. 2004), in which the court found no right of a non-party to the public records process (in the position of the unions here) to seek to prevent disclosure of allegedly non-public information. That case even relied upon prior precident involving a different union’s attempt to intervene. Here are the key sections (emphasis added):

This case requires us to revisit the Access to Public Records Act (APRA), G.L. 1956 chapter 2 of title 38. On its face, the avowed purpose of the APRA is “to facilitate public access to governmental records which pertain to the policy making functions of public bodies and/or are relevant to the public health, safety, and welfare.” Section 38-2-1. We also have held that the APRA provides a remedy only to those people who are denied access to public records; it does not provide a remedy to prevent public agencies from disclosing records. See Pontbriand v. Sundlun, 699 A.2d 856, 867 (R.I. 1997); Rhode Island  Federation of Teachers, AFT, AFL-CIO v. Sundlun, 595 A.2d 799, 803 (R.I. 1991). Discerning no reason to deviate from these principles, and as the General Assembly has not seen fit to provide such a remedy, we reemphasize the strong public policy expressed in the APRA in favor of public disclosure.

***

We begin our analysis by noting that this Court has “long recognized that the underlying policy of the APRA favors the free flow and disclosure of information to the public.” Providence Journal Co. v. Sundlun, 616 A.2d 1131, 1134 (R.I. 1992) (citingProvidence Journal Co. v. Kane, 577 A.2d 661, 663 (R.I. 1990);Pawtucket Teachers Alliance Local No. 920, AFT, AFL-CIO v. Brady, 556 A.2d 556, 558 (R.I. 1989); Hydron Laboratories, Inc. v. Department of Attorney General, 492 A.2d 135, 137 (R.I. 1985); The Rake v. Gorodetsky, 452 A.2d 1144, 1147 (R.I. 1982)).

We also have made clear that the APRA provides neither a right to prevent the release of private information, Pontbriand, 699 A.2d at 867, nor a remedy to compel nondisclosure, Rhode Island Federation of Teachers, 595 A.2d at 802. We reached this conclusion after a careful analysis of legislative intent and an examination of federal case law decided under the analogous Freedom of Information Act (FOIA). Pontbriand, 699 A.2d at 867. The Supreme Court of the United States has held that the FOIA was designed to enlarge disclosure by public agencies and that “Congress did not design the FOIA exemptions to be mandatory bars to disclosure.” Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979).

Thus, the APRA exemptions, similar to those under the FOIA, allow public agencies to withhold documents, but do not require withholding. See Tripp v. Department of Defense, 193 F. Supp.2d 229, 238 (D.D.C. 2002). Similarly, in Rhode Island Federation of Teachers, 595 A.2d at 802-03, we held that the APRA provides no remedy to compel withholding non-exempt information from the public:

“The similarity between FOIA, as interpreted, and APRA is striking. In both instances the Legislature has cast the public official as the guardian of exempted material. His or her discretion in respect to disclosure cannot be challenged by a private party. As in the  case at bar, if a remedy is to be provided, it must be provided by the Legislature and not by the court.

“Our statute, like the Federal FOIA statute, is directed solely toward requiring disclosure by public agencies and does not provide a reverse remedy to prevent disclosure.”

The parties are represented by able counsel. The unions’ counsel is a well-known RI litigator for union rights. Solas will be represented by the Goldwater Institute, which has deep experience with public records litigation. The school district and committee will be represented by a Rhode Island law firm that handles APRA responses, among other things, for numerous school districts. So I expect a lot of pixels to be spent over the implications of the New England Gas case ruling.

But unless there is something we’re not seeing, which is always possible, it’s hard to see how the unions overcome that 2004 RI Supreme Court ruling that holds persons or entities in the position the unions are in here have no right to sue to prevent disclosure of records, even if those records are “non-public.”

Stay tuned.

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