PROVIDENCE –– The Rhode Island Affiliate of the American Civil Liberties Union is suing Governor Carcieri for a “knowing and willful” violation of the Access to Public Records Act for refusing to turn over any documents that spell out how the governor will establish the chain of command in his absence during an emergency.

The matter stems from the Dec. 13 snowstorm, when 6 inches of snow created massive gridlock throughout Greater Providence and left 100 Providence schoolchildren sitting on buses well into the night. Carcieri was in the Middle East and Adj. Gen. Robert T. Bray, who leads the National Guard and the state Emergency Management Agency, had stayed home sick.

After facing heated criticism for his administration’s handling of the storm, Carcieri said that Bray would be in charge during emergencies in the governor’s absence –– “responsible not only for overseeing the state on the ground preparations and response for potential weather emergencies, but also for acting as the public face and voice for the state’s effort.”

That raised concerns about whether it was constitutional for a military officer to be granted the governor’s powers in his absence. Only a governor can declare a state of emergency, activate the National Guard and serve as the commander in chief of the “organized and unorganized militia.” In an emergency, only the governor can suspend the rules conducting state business, transfer state personnel to assist in emergency services and order an evacuation.

Carcieri then said that he wouldn’t cede his constitutional authority, but he’s refused to answer questions from The Journal about how an emergency would be handled if he were out of state and out of contact. That was the case during the snowstorm, when Carcieri was on a plane and, as he said, “probably sleeping.” His staff rebuffed the lieutenant governor’s attempts to take charge during the snowstorm. Constitutional scholars say the state Constitution is unclear on a governor’s “inability to serve” and whether that would apply if he were out of reach and unavailable to lead in an emergency.

The ACLU filed an open records request in March that asked the governor for copies of documents that set out the chain of command for state governance in his absence, described the powers given to the adjutant general in his absence, and imposed any limits on those powers. Carcieri’s executive counsel, Kernan King, turned over one document: a news release sent to the media saying the governor wouldn’t cede his authority. According to the ACLU, King said the only other records were e-mails that were exempt from public disclosure because they were “internal documents that were created for internal purposes … not intended to be publically [sic] disclosed, nor have they been publically [sic] disclosed.”

The ACLU lawsuit filed yesterday in Superior Court by volunteer attorney Kathleen Managhan seeks a court order requiring release of all other responsive documents, plus a civil fine and attorney’s fees. Rhode Island’s ACLU executive director Steven Brown said in a statement that the denial of records was “the governor’s latest lackadaisical approach to open government in his administration.”

The governor’s office said in a statement yesterday that the ACLU’s lawsuit was without merit. “The issue at hand –– the release of documents outlining the transfer of authority to General Bray –– is moot. The governor does not transfer or cede authority when he simply leaves the state and any authority exercised by General Bray is in accordance with Rhode Island General Law, as head of the state’s Emergency Management Agency and the Rhode Island National Guard. Hence, there are no responsive documents to the ACLU’s request regarding a transfer of authority during the governor’s absence as no such transfer will occur.”

It’s not clear what would happen if Carcieri and Bray were both out of state at the same time. The adjutant general is also a frequent traveler. An investigation by The Journal found that Bray was out of state on federal duty for at least 130 days during his first 22 months in Rhode Island.

amilkovi@projo.com