Background

The Complainant has filed two (2) separate Complaints against the Coventry Police Department and the Rhode Island State Police. As the matters involve nearly identical facts and were proffered by the same Complainant, we will combine the complaints and issue one (1) finding. We will address each of the Complainant’s allegations in turn.

Coventry Police Department

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 case law interpreting this statute.

The APRA mandates that “all records maintained or kept on file by any public body shall be public records and every person or entity shall have the right to inspect and/or copy those records.” R.I. Gen. Laws § 38-2-2(a). The APRA further provide that all records maintained by public bodies are subject to public disclosure unless the document falls within one of the twenty-seven (27) enumerated exemptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(AA). Among other exemptions, the APRA permits nondisclosure of records maintained by law enforcement agencies if disclosure of the records “could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings” or, “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” See R.I. Gen. Laws § 38-2-2(4)(D)(a)-(c).

As to the Coventry Police Department

It is undisputed that Complainant is currently incarcerated in a New Hampshire County Jail but has been previously arrested in the State of Rhode Island. As has been mentioned several times, Complainant sought records “related to [himself].” Because of Complainant’s incarcerated status, the Department asserts that it interpreted the Complainant’s request as seeking records relating to matters pending in Rhode Island. The Department asserts that at the time of the Department’s April 21, 2021 response, there were “active and pending criminal investigations relating to the Complainant and therefore, the records sought related to matters that were “still under investigation.” As a result, the Department responded that the “[reports could not] be released at [the] time” of the request and the records sought were not public under APRA. Our past findings and caselaw make clear that the onus is on the requestor to indicate what documents are being sought under APRA. See Howard v. Department of Environmental Management, PR 11-35. The Complainant does not seem to dispute the Department’s interpretation. Accordingly, the focus of our analysis shifts to whether the Department’s basis for the denial violated  the APRA.

As an initial matter, this Office has previously found that general denials of access and statements that the requested records are “not public information” are insufficient to comply with the APRA’s mandate. See Constantino v. Smithfield School Committee, PR 13-24. However, nothing in the APRA requires a denial to specifically cite the APRA exemption it is referencing. See Clark v. West Glocester Fire District, PR 16-01; see also Piskunov v. City of Cranston, PR 16-41. Here, the Department could have more clearly articulated its reasons for denial in its April 22, 2021 response, including more clearly asserting the particular exemption(s) within (4)(D) the Department was relying upon. However, considering the request and the facts of this case, we find it sufficiently clear that the Department was at least asserting Exemption (4)(D)(a) when it denied Complainant’s request because the reports requested were “still under investigation.” Exemption (4)(D)(a) states that law enforcement records need not be disclosed if the disclosure “could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings.” R.I. Gen. Laws § 38-2-2(4)(D).  While Complainant may take some issue that the scope of his APRA request encompassed open and closed files, the evidence demonstrates that the Department interpreted the request to seek open files only.  It takes little to conclude that the disclosure of law enforcement investigation records pertaining to matters “still under investigation” could “reasonable be expected to interfere with investigations of criminal activity or with enforcement proceedings.”  Id.

Complainant did not proffer evidence in his rebuttal to dispute that at the time of his requests, there was one or more ongoing law enforcement investigations involving him.  In fact, in the introduction of his August 2021 Complaint addendum, Complainant refers to “pending charges” against him and “ongoing legal proceedings.” Absent any evidence to the contrary, we find that the Department’s proffered response to Complainant was sufficient and did not violate the APRA. See Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7^th Cir. 1998) (request for investigation documents during the pendency of a Department of Justice investigation properly denied as “[p]ublic disclosure of information could result in destruction of evidence, chilling and intimidation of witnesses, and revelation of the scope and nature of the Government’s investigation”).

We turn now to whether the Department violated the APRA by failing to include appeal language in its response to Complainant on April 8, 2021.  Notably, the APRA requires that “[a]ny denial of the right to inspect or copy records, in whole or in part *** shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial within ten (10) business days of the request and indicating the procedures for appealing the denial.” R.I. Gen. Laws § 38-2-7(a) (emphases added).

Appended to the Department’s response was the April 8, 2021 denial to Complainant’s request for records. Based upon our review of the Department’s response to Complainant’s April 8, 2021 request, it does not appear that the letter contained any language that would inform the Complainant of his right to appeal the denial. The Department takes the position that inclusion of appeal language is not mandatory under APRA. In support of this position, the Department cites R.I. Gen. Laws § 38-2-8 and states that because the public has a “permissive” avenue to appeal a denial by petitioning the chief administrative officer of a law enforcement agency, inclusion of appeal language in a denial is therefore unnecessary. The Department’s interpretation is   misguided.

As indicated above, the plain language of the APRA requires that all denials of the right to inspect or copy records be in writing and include the procedures for appealing the denial. See R.I. Gen. Laws § 38-2-7(a).  Additionally, this Office has issued numerous findings determining that a failure to provide an individual with a procedure for appealing a denial violates the APRA. See Finnegan v. Town of Scituate, PR 20-40 (violation found where the Town did not include appeal language in its response to Complainant and stated that it did not have a Chief Administrative Officer under APRA and therefore, no appeal process was available to Complainant); Law v. Town of Smithfield, PR 19-26 (violation found where Town’s denial of Complainant’s request was void of any language concerning appeals procedures); Costantino v. Smithfield School Committee, PR 13-24 (same).

Here, the Department’s response is devoid of any reference to Complainant’s right to file an appeal in accordance with R.I. Gen. Laws § 38-2-8. Thus, we find that the Department violated the APRA. See R.I. Gen. Laws § 38-2-7(a).

As to the Rhode Island State Police

Complainant alleges that the RISP’s “complete disregard” [to respond] to his May 7, 2021 request for records amounts to a violation of APRA. We disagree based upon the evidence presented to us.

Complainant alleges that he mailed his written request to the RISP on May 7, 2021. When Complainant did not receive a response, he sent another written request to the RISP dated June 26, 2021. In response to Complainant’s APRA Complaint, the RISP indicated that it “never received an APRA request from Mr. Cooper in April or May of 2021.” The RISP did, however, receive an APRA request dated June 26, 2021, which was physically received by the RISP on July 6, 2021, to which they responded with a timely denial citing R.I. Gen. Laws § 38-2-2(4)(A)(I)(b) and (4)(D)(c).

There has been a deluge of correspondence from the Complainant in this matter. It appears that one appendix that Complainant included in these materials demonstrates that the RISP did not receive Complainant’s initial May 2021 letter. Specifically, appended to Complainant’s rebuttal of the Coventry Police Department’s response is what appears to be a ledger of Complainant’s incoming and outgoing mail while incarcerated at Rockingham County Jail from a period of January 29, 2021 to September 15, 2021. One notable item is logged on May 8, 2021: an outgoing item addressed to the Rhode Island State Trooper Barracks at the address “1575 Louisquisset PK, Lincoln, RI.” This is not the address of the RISP Lincoln barracks, rather, the address is 1575 Old Louisquisset Pike in Lincoln, RI. Based on the foregoing, we are presented with no evidence to contradict the RISP’s assertion that it did not receive Complainant’s May 2021 request for records.  This conclusion is supported by the fact that when the RISP received Complainant’s July 2021 request – properly addressed to the North Scituate Barracks – the RISP provided a timely response. For the reasons stated herein, we conclude that the RISP did not violate the APRA.

Conclusion

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). 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).

We conclude that insufficient evidence exists to find a willful and knowing, or alternatively reckless, violation on the part of the Coventry Police Department. Although the Department failed to include the requisite appeal language in their denial, injunctive relief is not appropriate here, as the Complainant appealed the denial almost immediately to this Office and there appears to be very little if any prejudice or injury to the Complainant.  See Law v. Town of Smithfield, PR 19-26 (finding the Town violated the APRA by failing to include appeal language, but Complainant filed a Complaint with this Office shortly after receiving the denial so injunctive relief was not appropriate).  Our conclusion is also supported by the fact that the Department does not have any recent, similar violations. Nonetheless, this finding serves as notice that the conduct discussed herein violates the APRA and may serve as evidence of a willful and knowing, or reckless, violation in any similar future situation.

Although the Attorney General will not file suit in this matter, nothing within the APRA prohibits an individual 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