VIA EMAIL ONLY

September 21, 2018

OM 18-25

Ms. E. Anne Musella

Dear Ms. Musella:

The investigation into your Access to Public Records Act (“APRA”) and Open Meetings Act (“OMA”) complaint filed against the Central Coventry Fire District (“Fire District”) is complete. By email correspondence dated January 2, 2018, you allege the Fire District violated the APRA because its website did not contain the Fire District’s APRA procedures. You further allege the Fire District violated the APRA because it has no mechanism for a requestor to make an APRA request anonymously and that the Fire District violated the OMA for its failure to maintain meeting minutes at its office. Finally, you allege the Fire District violated the OMA by failing to post minutes for the following meetings on the Secretary of State’s website: September 24, 2015; February 23, 2016; March 24, 2016; September 19, 2016; May 5, 2017; and May 30, 2017.

In response to your complaint, we received a substantive response from the Fire District’s legal counsel, David M. D’Agostino, Esquire. Attorney D’Agostino states, in pertinent part:

“First, the Complainant’s allegation that there is no mechanism for a requestor to make an APRA request anonymously is a misstatement of the APRA. * * * There is no allegation that the Complainant asked for information but was unable to obtain that information when visiting the CCFD’s administrative offices. If the Complainant went to the CCFD’s website (www.ccfdri.com) she would find under the tab, ‘Public Records’ the CCFD’s APRA Policy & Procedures as well as a request form. Documents that are readily available at the CCFD administrative office may be requested anonymously by anyone who comes into the facility.

Second, the Complainant’s allegation that the CCFD does not maintain meeting minutes at its offices is just false. The meeting minutes are available at the offices; as a practical matter, the minutes are available on-line and are kept in hard copy as well as electronically. * * *

Third, the Complainant’s allegations of missing meeting minutes on the RI Secretary of State’s website is specious. For example, the September 24, 2015 meeting (which would have been the CCFD’s Annual Meeting—addressed substantively below) was not even convened under the authority of the Board of Directors since the CCFD was still subject of the State Receivership under RIGL § 45-9-1 et seq. Consequently, any reporting obligations would have been the responsibility of the State of Rhode Island Department of Administration and Receiver Pfeiffer. That said, even if your Department were to determine there should have been a meeting minutes, that meeting, such as it is, was the annual meeting of the CCFD, which is not a ‘public meeting’ under the OMA.

As for the February 26, 2016 meeting, right on the Secretary’s website * * * is listed * * * ‘rescheduled meeting filed on February 25, 2016 at 04:27 PM’

This meeting was rescheduled as noted and there are minutes for the rescheduled meeting on the Secretary’s website. The March 24, 2016 meeting was a financial (annual) meeting as denoted by the agenda posting * * * and was not a ‘public meeting’ under the OMA. The same situation exists for the September 19, 2016 meeting * * *.

As your Department is aware, financial [town] meetings are not subject to the OMA. [See: Pine v. McGreavy, 687 A.2d 1244 (R.I. 1997)]. The Supreme Court said in that case, ‘We are in agreement with the trial justice that a financial town meeting of the electors qualified to vote on the imposition of a tax and the expenditure of money does not fit within this definitional section [of a “public meeting” under RIGL § 46-42-2(c).]’ Id. at 1245.

Lastly, the May 5, 2017 meeting was rescheduled to May 6, 2017 and meeting minutes exist for that meeting. The copy of the note on the Secretary’s website is attached. The May 30, 2017 meeting was rescheduled to June 2, 2017 per the note on the Secretary’s website * * * and the minutes from the June 2^nd are posted.”

We acknowledge your rebuttal.

At the outset, we note that in examining whether a violation of the APRA or 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 APRA and the OMA as the General Assembly has written the laws and as the Rhode Island Supreme Court has interpreted their provisions. Furthermore, our statutory mandate is limited to determining whether the Fire District violated the APRA and/or the OMA. See R.I. Gen. Laws §§ 38-2-8, 42-46-8.

We will first address your allegation that the Fire District violated the APRA because its website failed to set forth the Fire District’s APRA procedures. Section 38-2-3(d) provides, in pertinent part, that “[e]ach public body shall establish written procedures regarding access to public records” and “a copy of these procedures shall be posted on the public body’s website if such a website is maintained and be made otherwise readily available to the public.” As set forth above, the Fire District responded that its website did contain the Fire District’s APRA procedures. The Fire District further stated in a footnote that “these were put in place as of July 2013 * * *.” Indeed, this Department’s review of the Fire District’s website confirms that it presently contains the Fire District’s APRA procedures.

In your rebuttal, however, you allege that when you viewed the website on December 13, 2017, it did not contain the Fire District’s procedures. In support of this allegation, you provided this Department with evidence that suggests that on December 13, 2017, the Fire District’s website did not contain a copy of its APRA procedures. Assuming arguendo that this Department were to find that the Fire District violated the APRA on or about December 13, 2017 because its website did not contain its APRA procedures, because there is no dispute that the Fire District presently maintains its APRA procedures on its website, we would be left to consider the appropriate remedy. Namely, upon a finding of an APRA violation, the Attorney General may file a complaint in Superior Court on behalf of the Complainant, requesting “injunctive or declaratory relief.” See R.I. Gen. Laws § 38-2-8(b). Alternatively, or in addition, 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). Because there is no dispute that the Fire District presently maintains its APRA procedures on its website, injunctive relief is not appropriate. See Farinelli v. City of Pawtucket, PR 16-27 (noting that where injunctive relief is not an appropriate remedy, our focus is limited to determining whether the assumed violation was willful and knowing, or reckless). Additionally, on this record, the imposition of a civil fine is not appropriate because there is no evidence to suggest that the Fire District committed a knowing and willful or reckless violation of the APRA – if it even violated the APRA – by failing to have its APRA procedures on its website on December 13, 2017. Accordingly, this Office will not file a civil lawsuit against the Fire District with respect to this allegation.

We next address your allegation that the Fire District violated the APRA by not providing a mechanism through which an APRA request could be made anonymously. In particular, you allege that the Fire District’s public records request form “requires a requestor to provide their name and full contact information” in violation of R.I. Gen. Laws § 38-2-3(j). Section 38-2-3(j) of the APRA provides, in part, that a public body shall not require, “as a condition of fulfilling a public records request, that a person or entity * * * provide personally identifiable information about him/herself.” While this Department would prefer that the Fire District’s APRA form indicate that these identifiable fields are optional,[1] no evidence has been submitted that the Fire District requires “as a condition of fulfilling a public records request, that a person or entity * * * provide personally identifiable information about him/herself.” Nowhere on the form does it indicate that this information is required or is a condition to have a public records request fulfilled. Furthermore, you have not provided any evidence that the Fire District required you to provide any identifiable information as a condition to having any public records request fulfilled. Accordingly, we find no violation of the APRA.

Lastly, you allege that the Fire District violated the OMA, first, for allegedly failing to maintain meeting minutes at its office in violation of § 42-46-7(b), and second, because the minutes of certain meetings were not on the Secretary of State’s website in violation of § 42-46-7(e). This Department need not address these allegations because you have presented no evidence that you are aggrieved by the alleged violations of the OMA and, therefore, lack standing to bring this OMA complaint.

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 reviewed this “aggrieved” provision within the OMA. There, the plaintiffs brought a complaint that alleged that the Rhode Island State Lottery Commission had violated the OMA by providing insufficient notice of a meeting. The trial justice determined that the notice of the meeting was deficient and amounted to a willful violation of the OMA. Id. at 221. On appeal, the Rhode Island Supreme Court held that it need not reach the merits of the alleged OMA violation because the plaintiffs who initiated the complaint were both present at the meeting and were, therefore, not aggrieved by the purported insufficient notice. The court further held that:

“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 222.

Recently, in Langseth v. Rhode Island Commerce Corporation, OM 18-09, this Department had occasion to apply the “aggrieved” provision of the OMA to facts similar to those posed here. Therein, this Department reviewed a complaint involving an allegation that the public body violated the OMA for its failure to timely post minutes of certain meetings on the Secretary of State’s website. Because no evidence was submitted that the alleged violation disadvantaged the complainant, however, this Department found that the complainant lacked standing to bring the OMA complaint. Id.

Similarly, our review of the record in the instant matter reveals that you have not demonstrated that you have been disadvantaged or aggrieved by the alleged violations of the OMA. As noted above, you shouldered “[t]he burden of demonstrating such a grievance,” Graziano, 810 A.2d at 222, and respectfully, you have not met this burden. Our review of the record finds that you did not provide any evidence that you were aggrieved by the Fire District’s alleged failure to keep the meeting minutes at its office or failure to post certain meeting minutes on the Secretary of State’s website. More specifically, although you generally allege that you visited the Fire District’s office to review certain minutes and were “told that they are not available at the office,” we have been provided no information concerning the specific date(s) of the minutes you sought to review or how you were aggrieved by the failure to make such minutes available to you.[2] Additionally, you provided no evidence to contradict the Fire District’s assertion that its February 23, 2016, May 5, 2017, and May 30, 2017 meetings were cancelled, thus accounting for its lack of posted minutes. As for the Fire District’s September 24, 2015, February 23, 2016, and September 19, 2016 meetings, assuming that these allegations were made within the statute of limitations, all of these meetings concerned annual and/or financial meetings and are not governed by the OMA. See Pine v. McGreavy, 687 A.2d 1244 (R.I. 1997). Accordingly, your lack of standing to raise the OMA violations, cancellation of meetings, and/or inapplicability of the OMA to annual/financial meeting is, individually and collectively, fatal to your complaint.

Although the Attorney General will not file suit in this matter, nothing within the APRA or the OMA prohibits an individual or entity from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws §§ 38-2-8(b), 42-46-8(a). For OMA allegations, you may do so within (90) days of the Attorney General’s closing of this complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later. R.I. Gen. Laws § 42-46-8. Please be advised that we are closing your file as of the date of this correspondence.

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

Very truly yours,

Andrea Shea

Special Assistant Attorney General

AS/kr

Cc:          David D’Agostino, Esq.