Officials reviewing WPRI’s 38 Studios records request

PROVIDENCE R.I. (WPRI) – State officials have begun a formal review of whether to release any of the materials generated during the 38 Studios criminal investigation under the state’s open-records law.

Citing high public interest in the failed video-game deal, the Rhode Island State Police is waiving a $960 search and retrieval fee to go through the materials from the investigation to see if they can release any of them. Raimondo administration officials had urged the move following a formal Access to Public Records Act request filed by WPRI 12.

State police lawyers are now in the process of examining the documents.

R.I. Attorney General Peter Kilmartin’s office, however, denied an appeal to waive the cost and is still demanding $510 to look through the documents. In an email, Assistant Attorney General Michael Field emphasized that paying the fee does not mean the records will be released.

“As this Department has publicly stated, the investigation into the subject-matter of your APRA request remains open, and as such, it is likely that most (and perhaps all) documents responsive to your request will be deemed exempt from public disclosure at this time,” Field wrote in an email.

He went on to say that “payment does not guarantee that the records you have requested constitute public records (in whole or in part, i.e., redacted), but only authorizes this Department to conduct its search and retrieval to determine whether the responsive documents are public records.”

Kilmartin and R.I. State Police Col. Steven O’Donnell announced last month that no criminal charges would be filed after their four-year 38 Studios investigation. Kilmartin also said he wants all the information generated during the investigation – including more than 100 witness interviews and thousands of pages of documents – to remain sealed from the public.

Kilmartin, a second-term Democrat, has come under heavy public pressure to reverse his stance in the weeks since.

Roger Williams University School of Law Professor Niki Kuckes noted grand jury materials are rarely made public to ensure the integrity of the process.

“The attorney general is taking is a very legitimate prosecutorial position that I think is implementing his feeling about how he should do his job and fulfill his duties, which is to appropriately enforce the law,” Kuckes said during a taping of WPRI 12’s Newsmakers. “The process in which grand jury documents are released — there are very, very narrow exceptions.”

Kuckes said it isn’t Kilmartin that could authorize the release, but the courts, though the attorney general would be asked if he thinks the material can be unsealed. She said one of the reasons the law keeps grand jury matters secret is to ensure witnesses will be willing to come forward.

“Grand jury secrecy is broader than is generally understood,” Kuckes said. “It is taken very seriously by the courts and people bound by grand jury secrecy can actually be prosecuted.”

Another option, Kuckes said, would be for state lawmakers to pass a bill authorizing release of the grand-jury materials.

Mike Stanton, a University of Connecticut journalism professor and former Providence Journal investigative reporter, said there have been examples where the public interest has outweighed the need for secrecy after an investigation is done.

“Remember, this is a case that’s of high public interest, probably the biggest crisis of confidence in our government since the state banking scandal,” said Stanton, referring to the 1990s credit-union crisis.

He said – at the very least – the state could release materials used in the investigation but not presented before the grand jury.

“There is a lot of material that was generated in the investigation,” Stanton said. “The state has the discretion to release that; even if there is an exemption in the open records law for investigative materials, it’s not a requirement that it cannot be released.”

Stanton said that material would help paint a picture as to what investigators did and didn’t look at.

“Even if they release that, as a starting point, that would tell us things,” Stanton said. “It would tell us who didn’t get called to the grand jury and what kinds of information was being developed.”

(The author of this article is a board member of the New England First Amendment Coalition, a nonprofit group which has publicly called for the release of 38 Studios materials used in the criminal investigation.)

Tim White ( twhite@wpri.com ) is the Target 12 investigative reporter and host of Newsmakers for WPRI 12 and Fox Providence. Follow him on Twitter and on Facebook

Ted Nesi contributed to this report.

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