I.            Background

A reporter for the Complainant, Ms. Katherine Gregg, submitted an APRA request to the Authority seeking:

“in a digital format the names, job titles, salaries, OT and/or daily/hourly rates and total calendar year 2019 earnings of Convention Center Authority employees, including those working for the RICCA under the auspices of SMG/ASM Global.”

II.            Arguments

A.    Initial Submissions

The Complainant alleges the Authority violated the APRA when it denied its request for certain payroll-related information regarding employees who perform work for the Authority “under the auspices of SMG/ASM Global.” The Complainant argues that the Authority “cannot avoid APRA’s mandatory disclosure obligations merely because certain of its services are provided by private contractors.” The Complainant also maintains that the invocation of Exemptions (A)(I)(b) and (B) was improper. Additionally, the Complainant asserts that “[w]hile it is true that private entities are not generally subject to APRA’s disclosure obligations, [GOFAR] provides that ‘access to public information guaranteed by the access to public records act [may not] in any way [be] hindered by the fact that public services are provided by private contractors.’”

Attorney Bruce D. Leach provided a substantive response on behalf of the Authority, which included an affidavit from Mr. James P. McCarvill, who was the Executive Director of the Authority at that time. The Authority maintains that “the Authority has no employees working for the Authority under the auspices of SMG/ASM Global” because “SMG’s employees are SMG’s employees and subject to their control, and not for any purposes to be considered employees or agents of the Authority.” Mr. McCarvill attested that “SMG’s employees who work at the Convention Center or Dunk are members of various trade unions and SMG, not the Authority, is the signatory to each union contract.” Likewise, “under its management Contract with PFM the personnel working at The Vets are employees of PFM and are controlled by PFM and not the Authority.”

The Authority additionally states that the “personnel data is not in the possession of the Authority” but the Authority inquired with SMG and PFM “as to providing the Authority the requested payroll information as to their employees” in order for it to be provided in response to the Complainant’s request. According to the Authority, “both objected on the fact that the requested information was subject to exceptions from disclosure under the APRA” as disclosure would constitute a clearly unwarranted invasion of personal privacy and affect the company’s competitive posture.

B.     Supplemental Submissions

This Office sought supplemental submissions from the parties, as well as from SMG and PFM, addressing several issues.

SMG’s submission noted that Complainant’s initial request for records, which was sent to both the Authority and SMG, was worded differently and more narrowly than the administrative appeal to the Authority. SMG notes that Complainant never directly presented it with the version of the APRA request that was presented in the administrative appeal to the Authority and argues that Complainant’s original request, as worded, did not seek records related to SMG employees, but rather to employees of the Authority.

SMG explains that pursuant to its contract with the Authority, “SMG manages, operates and maintains the Rhode Island Convention Center, the Dunkin’ Donuts Center (‘DDC’), and the RICCA’s parking garages (collectively the ‘Convention Center’).” The nature of the work performed by SMG employees ranges widely and includes functions such as management and budgeting, as well as working concessions, providing security, and maintaining booking records and schedules.

This Office asked SMG to address whether it was a public body under the APRA. In response SMG affirmatively acknowledged that it is a public body under the APRA:

“In regard to the ‘public body’ question, SMG does not dispute that it manages and operates the Convention Center ‘on behalf of and/or in place of’ the RICCA. APRA defines a ‘public body’ to include any ‘public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.’ G.L. 1956, § 38-2-2(1). The RICCA itself is subject to APRA by virtue of G.L. 1956, § 42-99-17. Therefore, SMG is within the APRA definition of a ‘public body.’”

PFM provided a submission asserting that it is “not an agency of the State of Rhode Island nor of any local government.” PFM explains that it employs six executive level employees who work at the Vets, as well as part-time event staff, who work for and are paid by PFM. PFM states that the Authority has never been provided with its employee payroll records.

The Authority and the Complainant also provided supplemental submissions. The Authority took the position that SMG and PFM are both public bodies under the APRA. The Authority stated that SMG and PFM employees are employees of those respective entities and the Authority has no control over those employees or their hiring or firing, with the limited exception of having some input regarding the highest level executive employees who interface with the Authority. Unlike with the SMG contract, which gives the Authority some ability to access SMG payroll records subject to confidentiality, the Authority’s contract with PFM does not give the Authority any access to PFM’s payroll records.

III.            Relevant Law and Findings

When we examine an APRA complaint our authority is to determine whether a violation of the APRA has occurred. See R.I. Gen. Laws § 38-2-8. In doing so, we must begin with the plain language of the APRA and relevant caselaw interpreting this statute.

A.    The Authority

The APRA applies to entities that are an “agency” or “public body.” Importantly, the APRA defines those terms to include: “any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.” R.I. Gen. Laws § 38-2-2(1) (emphasis added).

The APRA provides that, unless exempt, “all records maintained or kept on file by any public body . . . shall be public records[.]” R.I. Gen. Laws § 38-2-3(a) (emphasis added). The APRA further provides that:

“Nothing in this section shall be construed as requiring a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made except to the extent that such records are in an electronic format and the public body would not be unduly burdened in providing such data.”

R.I. Gen. Laws § 38-2-3(h) (emphasis added); see also R.I. Gen. Laws § 38-2-7(c).

It is undisputed that the Authority provided the Complainant with the requested payroll information that it maintained for the three individuals directly employed by the Authority. In response to this Complaint, Mr. McCarvill attested that personnel data requested by Complainant (to wit, “the names, job titles/positions, salaries and 2019 earnings of the employees who staff the RI Convention Center, Dunk,. [sic] Vets and associated parking garages”) “is not in the possession of the Authority” outside of the three employees the Authority directly employs. The Complainant has not presented any evidence to dispute the Authority’s contention that it does not maintain the requested information as to the workers who are employed through SMG and/or PFM. Upon reviewing the evidence presented, we fail to find any evidence that would lead us to conclude that the Authority is in possession of the records requested, except as to the three Authority employees for whom the records were provided.

B.     SMG

This, however, does not mean that the Complainant does not have an ability to seek the requested records under the APRA. SMG has openly acknowledged that it performs work “on behalf of and/or in place of” the Authority and is itself a public body subject to the APRA. See R.I. Gen. Laws § 38-2-2(1). We agree, and on these facts, we would have concluded as such. The record in this case, including SMG’s submission, evinces that SMG “manages, operates and maintains” the Convention Center and other facilities on behalf of the Authority, which itself only employs three people. The Authority’s enabling legislation provides that the Authority is “a public instrumentality exercising public and essential governmental functions,” and was “created, established, and incorporated . . . to construct, manage, and operate a convention center[.]” R.I. Gen. Laws § 42-99-4(a), (b). The evidence before us demonstrates that the Authority delegated SMG to carry out the Authority’s statutory governmental functions on its behalf. Because SMG is “acting on behalf of and/or in place of [a] public agency,” it is itself a public body for purposes of the APRA. See R.I. Gen. Laws § 38-2-2(1).

The APRA provides that “[p]ersonnel and other personal individually identifiable records” are not public records if disclosure “would constitute a clearly unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(a)(I)(b). This provision contemplates a balancing test whereby the public interest and privacy interests in the records are balanced to determine whether the records are public. However, in relevant part, this exemption expressly provides that certain information pertaining to public employees shall be public:

“with respect to employees, and employees of contractors and subcontractors working on public works projects that are required to be listed as certified payrolls, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and any other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state, municipality, or public works contractor or subcontractor on public works projects, employment contract, work location, and/or project, business telephone number, the city or town of residence, and date of termination shall be public.”

C.     PFM

We next turn to PFM. Unlike SMG, PFM disputes that it is a public body. Also, unlike SMG, there is no evidence that PFM directly received a request from the Complainant. Indeed, Complainant’s original request did not seem to pertain to PFM at all and it is not entirely clear whether Complainant intended to seek records related to PFM employees. It was only once Complainant mentioned the “Vets” in the administrative appeal that the Authority first mentioned PFM. Additionally, the Complaint filed in this matter did not name PFM as a party. Given these circumstances, we do not believe that PFM is properly a party to this matter and we do not think it is appropriate to issue findings related to PFM. If Complainant contends that PFM is a public body and wishes to seek records maintained by PFM, Complainant is free to make an APRA request to PFM. If PFM denies the request, Complainant is free to bring a Complaint against PFM to this Office.

D.    Application of GOFAR

We next address the Complainant’s invocation of GOFAR. To be sure, the general statement of legislative intent contained within GOFAR expresses the desire “to ensure that access to public information guaranteed by the access to public records act is not in any way hindered by the fact that public services are provided by private contractors.” R.I. Gen. Laws § 37-2.3-2. However, neither this general language of intent nor the specific requirements imposed by GOFAR related to fiscal monitoring of privatization contracts, see R.I. Gen. Laws § 37-2.3-4, purport to alter the requirements of the APRA. Regardless of whether or not the Authority is subject to GOFAR — an issue that the parties dispute and the resolution of which is outside the scope of this Office’s authority in resolving this APRA Complaint — GOFAR does not alter the substantive provisions of the APRA, including the provision that the APRA applies to records that are actually “maintained or kept on file by any public body.” R.I. Gen. Laws § 38-2-3(a). In cases where a public body delegates functions to a contractor such that the contractor becomes a public body under the APRA, as is the case with SMG here, the public may access the contractors’ public records by making an APRA request directly to the contractor.

Conclusion

Although the Attorney General has found no violation and will not file suit in this matter, nothing within the APRA prohibits an individual or entity from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 38-2-8(b). Please be advised that we are closing this file as of the date of this letter.

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

Sincerely,

PETER F. NERONHA

ATTORNEY GENERAL

By: /s/ Kayla E. O’Rourke     

Kayla E. O’Rourke

Special Assistant Attorney General

cc:

J. Richard Ratcliffe, Esq., Counsel for SMG

E. Colby Cameron, Esq., Counsel for PFM