Background and Arguments

The Complainant alleges that the WHA violated the OMA at its September 22, 2022 meeting when an agenda item failed to fairly inform the public of the business to be discussed. The agenda item in question read, in pertinent part, formatting slightly altered:

“6. Communications and Interest of the Authority

Discussion and/or Vote

***

B. Request for email information from Commissioners”

The Complainant alleges that, under this agenda item, the WHA discussed a subpoena it had received from the Department of Housing and Urban Development (“HUD”). Complainant states that she “do[es] not believe the information on the agenda would allow the public to know the information to be discussed would be a communication from HIUD [sic]. Previous HUD communications are listed on the agenda as communications from HUD and RE: the business to be discussed. I believe this was a willful omission to the agenda to hide the business at hand.”

The Complainant also alleges that the WHA violated the APRA when it stated that it did not have any documents responsive to her request for the following:

“9/22/22 Communication & Interest of the Authority -B. Request of emails from the Commissioners

Please include all supporting documents included with each report if applicable.”

The Complainant states that this request pertains to the WHA’s September 22, 2022 open meeting discussion of a subpoena received by HUD and alleges that the WHA violated the APRA by not providing her with a copy of the subpoena or invoking any APRA exemption to withhold the subpoena.

Relevant Law and Findings

When we examine an APRA complaint, our authority is to determine whether a violation of the APRA and/or OMA has occurred.  See R.I. Gen. Laws §§ 38-2-8, 42-46-8.  In doing so, we must begin with the plain language of the APRA and/or OMA and relevant caselaw interpreting these statutes.

The APRA Complaint

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 copy such records. See R.I. Gen. Laws § 38-2-3(a). Nothing within the APRA requires a public body to “reorganize, consolidate or compile data not maintained by the public body[.]” R.I. Gen. Laws § 38-2-3(h); see also R.I. Gen. Laws § 38-2-7(c) (“A public body that receives a request to inspect or copy records that do not exist or are not within its custody or control shall, in responding to the request in accordance with this chapter, state that it does not have or maintain the requested records”).  (Emphasis added).

While the APRA unequivocally states that public records must be provided to requesting parties unless the records are exempt, it is well settled that a public body does not violate the APRA by not providing records it does not maintain or that do not exist. See Lopez v. Providence Police Department, PR 20-03 (“Because the APRA does not require a public body to disclose records that do not exist or that are not within its custody or control, we find no violation[.]”); Azar v. Town of Lincoln, PR 13-21 (“The Town is Not Obligated to Give Ms. Azar Records it Does Not Have”); see also R.I. Gen. Laws §§ 38-2-3(h), 38-2-7(c).

Here, the WHA has provided undisputed evidence in affidavit form that, although the agenda discussion stemmed from a subpoena that was served on its “outside investigatory counsel” by HUD, no subpoena or other “supporting documents” were provided in connection with the agenda item discussions or circulated to the WHA Board of Commissioners. The Complainant’s request specifically sought, “supporting documents included with each report, if applicable,” and the WHA responded that “[t]here are no documents to provide.” Complainant has not provided any evidence or argument to dispute the WHA’s contention that a document(s) was not circulated or “approved” by the WHA that would be responsive to her request. See Harris v. Providence, PR 17-03 (“it is the requestor's responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested” (quoting Assassination Archives and Research v. Central Intelligence Agency, 720 F. Supp. 217, 219 (D.D.C. 1989))).

Additionally, based upon this Office’s independent review of the September 22, 2022 meeting minutes, it is clear that Attorney Marcus advised the WHA that a subpoena had been received by Attorney Timothy Cavazza from HUD seeking certain emails between WHA Commission members and the Complainant and that Attorney Marcus requested all responsive emails be sent directly to her. Per the minutes, no vote was taken on this agenda item to “accept” the Communication. See cf. WHA Agenda Item 7 (September 22, 2022 Minutes) (“On a motion by Vice Chairman Gassey, seconded by Commissioner Cote, the Board voted unanimously to accept the Report of the Secretary”).

Accordingly, on this record, we find that the WHA did not violate the APRA.

The OMA Complaint

The OMA requires that all public bodies provide supplemental public notice of all meetings at least forty-eight (48) hours in advance of the meeting. See R.I. Gen. Laws § 42-46-6(b). “This notice shall include the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed.” Id. (emphasis added).

In Anolik v. Zoning Board of Review of the City of Newport, the Rhode Island Supreme Court held that R.I. Gen. Laws § 42-46-6(b) requires the “public body to provide fair notice to the public under the circumstance, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon.” 64 A.3d 1171, 1173 (R.I. 2013); see also Tanner v. Town of East Greenwich, 880 A.2d 784, 797 (R.I. 2005) (appropriate inquiry is “whether the [public] notice provided by the [public body] fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted”).

Here, the pertinent agenda item is titled:

“6. Communications and Interest of the Authority

Discussion and/or Vote

***

B. Request for email information from Commissioners”

Based upon this Office’s independent review of the September 22, 2022 meeting minutes, under this agenda item the WHA discussed a subpoena it had received from HUD seeking email communications between the WHA Board of Commissioners and the Complainant for a certain period of time. While, in broad strokes, the WHA did discuss “request for email information from Commissioners,” there is no reference in the agenda item that the request came via subpoena from HUD – the gravamen of the discussion.

Importantly, the WHA does not contest Complainant’s assertions that the agenda item failed to meet the OMA’s notice standard. Accordingly, we find the WHA violated the OMA. See R.I. Gen. Laws § 42-46-6(b).

Conclusion

The OMA provides that the Office of the Attorney General may institute an action in Superior Court for violations of the OMA. See R.I. Gen. Laws § 42-46-8(a), (e). The Superior Court may issue injunctive relief and declare null and void any actions of the public body found to be in violation of the OMA. See R.I. Gen. Laws § 42-46-8(d). Additionally, the Superior Court may impose fines of up to $5,000 against a public body found to have committed a willful or knowing violation of the OMA. Id.

Injunctive relief is not appropriate here because it is undisputed that the WHA took no action in connection with the pertinent agenda item and AttorneyMarcus’ request that she be provided with responsive emails was a product of the HUD subpoena, not a vote or direction of the WHA.

Based on the totality of the circumstances, we do not find this violation to be willful or knowing. We acknowledge Complainant’s conclusory accusation that “this was a willful omission to the agenda to hide the business at hand,” we note that the discussion took place in open session and the minutes specifically disclose that the request for emails came as a result of the subpoena from HUD. Although the agenda item could have been more specific, we are not persuaded by Complainant’s argument that the agenda item was willfully or intentionally vague. Nor are we aware of any prior, similar violations by the WHA. Nonetheless, this finding serves as notice that the conduct discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation.

Although the Office of the Attorney General will not file suit in this matter, please be advised that nothing within the OMA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 42-46-8(c).  The OMA allows the Complainant to file a complaint within ninety (90) days from the date of the Attorney General’s closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later. See id. Please be advised that we are closing this Complaint 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, Esquire

/s/ Adam D. Roach

Adam D. Roach, Special Assistant Attorney General