VIA EMAIL ONLY

July 12, 2017

OM 17-22

Mr. Kent C. Novak

Dear Mr. Novak:

The investigation into your Open Meetings Act (“OMA”) complaint and Access for Public Records Act (“APRA) complaint filed against the Western Coventry Fire District (“Fire District”) is complete. By correspondence dated January 25, 2017, you allege the Fire District violated the OMA when it posted its official and/or approved minutes for the September 15, 2016 Board of Director’s meeting on the Secretary of State’s website on October 21, 2016, thirty-six (36) days after the meeting. You allege the unofficial minutes for the October 27, 2016 Board of Director’s meeting were posted on November 12, 2016, five (5) days before the next regularly scheduled meeting. You further allege the unofficial minutes for the December 8, 2016 By-Laws and Charter Review Committee were posted on December 31, 2016, twenty-three (23) days after the meeting. You allege the agenda for the January 11, 2017 By-Laws and Charter Review Committee does not include the date the notice was posted. You also allege the Fire District violated the APRA when it failed to completely respond to your APRA request dated December 16, 2016.

In response to your complaint, we received a substantive response from the Fire District’s legal counsel, J. William W. Harsch, Esquire, who also provided an affidavit from the Fire District’s Chairman of the Board of Directors, Mr. John Humble. Attorney Harsch states, in pertinent part,

“1. September 15, 2016, Board of Director’s Meeting. The official minutes for this meeting were posted on October 21, one day beyond the 35-day limit. The unofficial minutes were filed on October 1^st, so Mr. Novak had more than sufficient time to read the minutes to determine what was covered in this particular meeting.

October 27, 2016, Board of Director’s Meeting. Again, as stated in #1 above, the minutes were filed 2 days late (5 days before the next regularly scheduled meeting). Mr. Novak never attends the meetings, but still had enough time to review the minutes prior to the next regularly scheduled meeting.

December 8, 2016, Bylaws and Charter Review Committee Meeting. Mr. Novak is correct in that the draft minutes were filed after the required date. This was an oversight by the District and steps have been taken so that it is not repeated.

January 11, 2017, Bylaws and Charter Review Committee Meeting. The posting date on this particular agenda was inadvertently left off the agenda. The clerk has been made aware of the need to be sure the posting date appears on all agendas.

December 16, 2016, APRA Request. Item #3 of Mr. Novak’s December 16, 2016 APRA request was supplied to him by email from the clerk on December 27, 2016. * * * Mr. Humble put together the SAP’s that were requested by Mr. Novak and emailed them to the Clerk on December 29. These were forwarded to the Clerk by Mr. Humble who then sent them on to Mr. Novak. Not hearing anything from Mr. Novak as to not receiving some of the information from his December 16, 2016 APRA request, the District was unaware that this information has not been received by Mr. Novak. We have instructed the clerk to resend the documents to Mr. Novak for both #3 and #6 of his December 16, 2016 APRA request.

* * *

[T]he errors that were made in regards to the OMA requirements were minor errors that were technical in nature only and cause no harm to Mr. Novak or any of the residents of the District. As to Mr. Novak’s complaint that he did not receive some of the documents requested in his December 16 APRA request, these were provided to Mr. Novak in a timely manner and, if he had taken the time to call the clerk to say that some of the information was missing, it would have been a simple matter for the clerk to resend the emails. He had received the majority of what he requested and should have at least considered the fact that the missing information had in fact been sent, but not received for whatever reason.”

We do not set forth the entire contents of Mr. Humble’s affidavit as the facts contained therein are substantially similar to the submissions set forth by Attorney Harsch. Mr. Humble does add the following:

“The [Fire District] is a Volunteer Fire District. We have utilized a part-time clerk to handle the preparation and postings on the Secretary of State’s website as well as to respond to APRA requests. * * * [O]ur part-time clerk has resigned her position effective the end of 2016 * * * The [Fire] District finds itself in the position of having to hire a full-time clerk.”

We acknowledge your rebuttal.

At the outset, we note that in examining whether a violation of the OMA has occurred, we are mindful that our mandate is not to substitute this Department’s independent judgment concerning whether an infraction has occurred, but instead, to interpret and enforce the OMA as the General Assembly has written the law and as the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutory mandate is limited to determining whether the Fire District violated the OMA. See R.I. Gen. Laws § 42-46-8. In other words, we do not write on a blank slate.

The OMA requires “[a]ll public bodies shall keep written minutes of all their meetings.” R.I. Gen. Laws § 42-46-7(a). Rhode Island General Laws § 42-46-7(b)(2) states that “all volunteer fire companies, associations, fire district companies, or any other organization currently engaged in the mission of extinguishing fires and preventing fire hazards, whether it is incorporated or not, and whether it is a paid department or not, shall post unofficial minutes of their meetings within twenty-one (21) days of the meeting, but not later than seven (7) days prior to the next regularly scheduled meeting, whichever is earlier, on the secretary of state’s website.” R.I. Gen. Laws § 42-46-7(b)(2). (Emphases added). Additionally, the OMA requires all the same fire-related entities to “keep official and/or approved minutes of all meetings of the body and shall file a copy of the minutes of all open meetings with the secretary of state for inspection by the public within thirty-five (35) days of the meeting.” R.I. Gen. Laws § 42-46-7(d)(emphasis added).

As a threshold matter, we must determine whether you are an aggrieved party and have legal standing to bring this OMA complaint. See Grieb v. Aquidneck Island Planning Commission, OM 15-16. The OMA provides that “[a]ny citizen or entity of the state who is aggrieved as a result of violations of the provisions of this chapter may file a complaint with the attorney general.” R.I. Gen. Laws § 42-46-8(a). In Graziano v. Rhode Island State Lottery Commission, 810 A.2d 215 (R.I. 2002), the Rhode Island Supreme Court examined the “aggrieved” provision of the OMA. There, an OMA lawsuit was filed concerning notice for the Lottery Commission’s March 25, 1996 meeting wherein its Director, John Hawkins, was terminated. At the Lottery Commission’s March 25, 1996 meeting, Mr. Hawkins, as well as his attorney, Ms. Graziano, were both present. Finding that the Lottery Commission’s notice was deficient, the trial justice determined that the Lottery Commission violated the OMA and an appeal ensued.

On appeal, the Rhode Island Supreme Court found that it was unnecessary to address the merits of the OMA lawsuit because “the plaintiffs Graziano and Hawkins have no standing to raise this issue” since “both plaintiffs were present at the meeting and therefore were not aggrieved by any defect in the notice.” Id. at 221. The Court continued that it:

“has held on numerous occasions that actual appearance before a tribunal constitutes a waiver of the right of such person to object to a real or perceived defect in the notice of the meeting. * * * It is not unreasonable to require that the person who raises the issue of the defect in notices be in some way disadvantaged or aggrieved by such defect. While attendance at the meeting would not prevent a showing of grievance or disadvantage, such as lack of preparation or ability to respond to the issue, no such contention has been set forth in the case at bar. The burden of demonstrating such a grievance is upon the party who seeks to establish standing to object to the notice.” Id. at 221–22.

Here, pursuant to R.I. Gen. Laws § 42-46-8(a), and the standard established in Graziano, you must demonstrate that you are “in some way disadvantaged or aggrieved” by the allegation raised in your complaint. Id. at 221. Importantly, the test is not whether the public is aggrieved, but whether you, as an individual are aggrieved. See Riggs v. East Bay Energy Consortium, PR 13-25, OM 13-30.

In reviewing your allegations, it is unclear how the alleged violations, namely the untimely filing of the official minutes for the September 15, 2016 Board of Director’s meeting (by one (1) day); the untimely filing of the unofficial minutes for the October 27, 2016 Board of Director’s meeting (by two (2) days); the untimely filing of the of the unofficial minutes of the By-Laws and Charter Review Committee meeting (by two (2) days); and the agenda for the January 11, 2017 By-Laws and Charter Review Committee meeting failing to list the date the agenda was posted in any way disadvantaged you. Respectfully, you provide no explanation concerning how you are aggrieved. The failure to establish this threshold requirement, is fatal to your complaint. See Blais v. Burrillville Library Building Committee, OM 07-04 (“[You] did not attend the [] meeting . . . [and] [t]herefore we conclude that [you] do[] not have standing to allege that the Committee committed OMA violations[.]”). Because we find no evidence indicating otherwise, and because you allege no evidence indicating otherwise, this Department finds that you are not an “aggrieved” party and therefore have no standing to allege the OMA violations contained in your complaint. See Curt-Hoard v. Woonsocket School Board, OM 14-20; Ayotte v. Rhode Island Commission on the Deaf and Hard of Hearing, OM 17-12. Accordingly, we find no violation.

We now address your allegation that the Fire District violated the APRA. It appears you made an APRA request dated December 16, 2016, wherein you sought:

“1) Electronic copies of all reports/documents. Minutes/resignation letters/correspondence/SAPs that were provided to BOD members for tonight’s meeting and the BOD meeting held on December 1, 2016.

2) Copy of the audio recordings for the December 1, 2016 and December 15, 2016 BOD meetings.

3) Electronic copies of the run card, payroll sheet and the after action review for the recent fire at 2172 Plainfield Pike.

4) Electronic copy of the current index of SAPs.

5) Electronic copy of all the District records that the District Clerk records and retains and the location of said records.

6) Electronic copies of SAPs: 5211.10; 5330.00; 5355.00; 7900.00; 11014.00; 1110.01; 1211.01; 1211.02; 1211.03; 11211.24; 1212.01; 1212.02; 1610.00; and 5102.00.

7) Electronic copy of any paperwork, reports, and/or expenditures if any caused by the mice infestation in the EMS supply room.”

The APRA states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or to copy such records. See R.I. Gen. Laws § 38-2-3(a). Moreover, the APRA provides procedural requirements governing the time and means by which a request for records is to be processed. Upon receipt of a records request, a public body is obligated to respond in some capacity within ten (10) business days, either by producing responsive documents, denying the request with a reason(s), or extending the time period necessary to comply. See R.I. Gen. Laws § 38-2-7. If a public body needs additional time to respond to an APRA request, the APRA provides that a public body, “for good cause,” may extend the response time an additional twenty (20) business days to a total of thirty (30) business days. R.I. Gen. Laws § 38-2-7(b). Also, the “[f]ailure to comply with a request to inspect or copy the public record within the ten (10) business day period shall be deemed to be a denial.” Id.

Based upon the evidence presented, you allege the Fire District did not respond to your requests numbered 3, 4 and 6 above. The Fire District, in its response, provided a copy of an email addressed to you dated December 27, 2016, the body of which stated “Please see attached response to 12/16/16 Question #3,” containing a four (4) page attachment. This response was provided within ten (10) business days. We pause to note the email address listed on the Fire District’s December 27, 2016 response to you is the same address you provided this Department. This Department will not hypothesize why you did not receive the Fire District’s APRA response dated December 27, 2016. We also want to convey that we have no reason to doubt your assertion that you did not receive this response. We limit our analysis to the evidence before us. Again, based upon the evidence presented, we cannot conclude the Fire District failed to respond to request 3 of your December 16, 2016 APRA request.

With respect to requests #4 and #6, the Fire District produced an email dated December 29, 2016 from Chairman Humble addressed to the Fire District’s clerk, which stated, in pertinent part:

“[a]ttached is one pdf file that covers requests #4 and #6.”

On February 22, 2017, after the filing of your complaint, the Chairman emailed the legal assistant to the Fire District’s legal counsel, which stated, in pertinent part:

“I first emailed [the Fire District’s clerk] for further help in supporting her previous claim that #4 & #6 were taken care of I stopped by the town hall today to ask her directly. She believed that she forwarded my 12/29/16 email [ ] to [Mr.] Novak but cannot prove it because, in this case, she thinks that she neglected to click the ‘save sent’ feature that her e-mail provider is equipped with. (She evidently did save her response to #3). Unlike my AOL and many other provider programs, hers requires that a save feature be selected for every e-mail that the sender wishes to save which is then placed in a ‘sent’ folder.”

Although we determine this to be a close call, we are inclined to find a violation. You allege you did not receive a response to requests #4 and #6 and the Fire District did not provide substantial evidence to the contrary. The Fire District violated the APRA with respect to this allegation.

Upon a finding of an APRA violation, the Attorney General may file a complaint in Superior Court, requesting “injunctive or declaratory relief.” See R.I. Gen. Laws § 38-2-8(b). Also a court “shall impose a civil fine not exceeding two thousand dollars ($2,000) against a public body. . .found to have committed a knowing and willful violation of this chapter, and a civil fine not to exceed one thousand dollars ($1,000) against a public body found to have recklessly violated this chapter * * *.” See R.I. Gen. Laws § 38-2-9(d). With respect to injunctive relief, we conclude that relief is not appropriate as it appears the Fire District, after you filed your APRA complaint, provided you with a response to your APRA request. We pause to note that in your rebuttal, with respect to your request #3, [electronic copies of the run card, payroll sheet and after action review for the recent fire at 2172 Plainfield Pike], you indicated that the Fire District provided the run card and after action review for the recent fire at 2172 Plainfield Pike. You allege the payroll sheet, however, was for the entire month of November, 2016, not just for the fire at 2172 Plainfield Pike. Based upon the evidence presented, we cannot conclude that the Fire District withheld a responsive document. There was no evidence presented that there existed another payroll card other than the one you received.

Based on the totality of the circumstances, we are not prepared to conclude, however, that the Fire District’s failure to timely comply with the APRA was not a knowing and willful, or, alternatively, reckless violation.[1] See Finnegan v. Town of Scituate, PR 15-41. We would respectfully suggest that Attorney Harsch consider ways to ensure that APRA replies are properly and timely prepared and are timely forwarded or otherwise made available to the requester.

Although the Attorney General will not file suit in this matter, nothing in the APRA precludes an individual from pursuing a complaint in the Superior Court. Please be advised that we are closing our file as of the date of this letter.

We thank you for your interest in keeping government open and accountable to the public.

Very truly yours,

Lisa Pinsonneault

Special Assistant Attorney General

LP/kr

Cc:          William J. Harsch, Esq.