| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
January 9, 2023
PR 23-02
Mr. Rahim Caldwell
Margaret A. Lynch-Gadaleta, Esquire
Interim General Counsel, Rhode Island College
Re: Caldwell v. Rhode Island College
Dear Mr. Caldwell and Attorney Lynch-Gadaleta:
We have completed our investigation into the Access to Public Records Act (“APRA”) complaint filed by Mr. Rahim Caldwell (“Complainant”) against Rhode Island College (“RIC”). For the reasons set forth herein, we find that RIC did not violate the APRA.
The Complainant alleges that RIC violated the APRA when it stated that no records responsive to his October 7, 2019 APRA request existed.[1] Although Complainant did not provide a copy of his initial APRA request to RIC, it is undisputed that he sought the following:
“1. names of all attendees at a meeting taking place inside the board room or conference room on Tues [sic] May 1, 2018 in Roberts hall [sic], Office of the presidents [sic] conference room, or Office of the presidents [sic] boardroom. Some of the attendees were not limited to Frederick Ghio, Jason Meriwether, Michael Fox, Jeffrey Michaelson.
2. Provide the May 1, 2018 attendee list of meetings which were attended by, but not limited to: Frederick Ghio, Jason Meriwether, Michael Fox, Jeffrey Michaelson, in Roberts Hall office of the presidents [sic] boardroom or office of the presidents [sic] conference room.
3. Identify the May 1, 2018 meeting called to order in Roberts Hall in the office of the presidents, [sic] boardroom or office of the presidents [sic] conference room, whether regularly scheduled, or emergent.”
RIC responded to the October 2019 request stating that it “has not been able to identify a document or documents” responsive to Parts (1) and (2) of Complainant’s request and that Part (3) “is not a request for a document and, as such, will not be considered an APRA request.” RIC provided a further argument that if such a meeting took place, any records it may have that are responsive to the request, would be exempt from production under the attorney-client privilege exemption as former RIC General Counsel, Jeffrey Michaelson, was present. RIC maintains, however, that no such responsive records were discovered.
Complainant filed his first administrative appeal with RIC in December of 2019 contesting RIC’s response as “null and void as rigl [sic] Apra [sic] law 38-2 is not limited to documents,” that “[t]he public interest outweighs any state interest,” and “[t]he records cannot be properly withheld.” RIC ultimately upheld its initial response to Complainant and denied the appeal.
Complainant submitted his second administrative appeal to RIC in July of 2022 asserting nearly identical arguments to those made in his December 2019 appeal. RIC responded by providing a copy of its January 2020 response to the first administrative appeal as “a final administrative denial of [his] APRA request” and advised him of his additional appeal rights under the APRA. Dissatisfied with RIC’s response, the Complaint to this Office followed, almost three (3) years after the initial request was submitted.
The Complainant argues that RIC violated the APRA by failing to provide documents responsive to his request.[2]
RIC Interim General Counsel, Margaret A. Lynch-Gadaleta, submitted a substantive response on behalf of RIC, which included copies of all relevant records related to the procedural history of this matter as well as an affidavit from one of RIC’s APRA Coordinators, and RIC Vice President for Administration and Finance/CFO, Stephen Nedder, Jr. RIC maintains that “[a]ll responses [to the Request] have consistently and clearly stated that the documents requested do not exist and therefore there are no documents to be produced.” “The College conducted an exhaustive search and there are no records responsive to this request.” Mr. Nedder attests that upon receiving the Complainant’s APRA request in October 2019, “after appropriate inquiry, [he] was not able to locate any documents responsive to this request.”
We acknowledge Complainant’s rebuttal.
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.
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). The APRA does not require “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 Lopez v. City of Providence, 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[.]”). “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 *** state that it does not have or maintain the requested records.” R.I. Gen. Laws § 38-2-7(c).
Additionally, the APRA governs “the public’s right to access public records,” R.I. Gen. Laws § 38-2-1, and defines “public record” or “public records” as:
“all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, computer stored data (including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities), or other material regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” R.I. Gen. Laws § 38-2-2(4).
The Complainant argues throughout his filings that “the APRA is not limited to documents,” however, the APRA’s stated purpose is to facilitate “the public’s right to access public records” as defined above. R.I. Gen. Laws § 38-2-1 (emphasis added). The Complainant does not provide any argument or clarification as to what types of records he is seeking beyond those defined in R.I. Gen. Laws § 38-2-2(4). This Office has previously stated that the APRA governs the public’s right to access public documents but does not mandate or require that public bodies answer questions. See Lyssikatos v. City of Pawtucket, PR 20-29 (finding that the APRA did not require the City to respond to Complainant’s request to “define the term ‘unknown.’”); see also Ryan v. Town of Burrillville, PR 16-22 (“the APRA does not require a public body to respond to interrogatories or questions, but instead requires a public body to produce responsive public documents.”). We also note that “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.” See Harris v. Providence, PR 17-03 (quoting Assassination Archives and Research v. Central Intelligence Agency, 720 F. Supp. 217, 219 (D.D.C. 1989)). Moreover, as noted above, the APRA requires public bodies to provide access to documents and does not mandate that a public body respond to questions or interrogatories or provide access to records that do not exist.
Here, the Complainant does not dispute that RIC does not maintain records or documents responsive to the APRA request and the evidence is undisputed that RIC does not maintain records responsive to this request. For these reasons, we find no violation.
Although this Office has determined that RIC did not violate the APRA in this matter, nothing within the APRA prohibits the Complainant from filing an action in Superior Court seeking injunctive or declaratory relief. 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, Esquire
/s/ Adam D. Roach
Adam D. Roach, Special Assistant Attorney General
[1] Based upon the record before us, it is undisputed that the Complainant submitted the subject APRA request on October 7, 2019 and RIC responded on October 22, 2019. Although Complainant “did not recall filing an appeal to Frank D. Sanchez,” former RIC President, RIC provided evidence that the Complainant appealed RIC’s October 22 response on December 29, 2019, to which RIC responded on January 7, 2020, upholding RIC’s initial decision that no responsive records exist. Because, as Complainant admits, he “did not recall” filing his first appeal, he filed a second appeal to RIC based upon its October 22, 2019 response on July 7, 2022, to which RIC responded on July 22, 2022, reaffirming its position that no responsive records exist as previously articulated to Complainant in October 2019 and January 2020. Following RIC’s July 22, 2022 appeal response, the Complainant filed the instant Complaint with this Office.
[2] The Complaint and Rebuttal also raise additional allegations related to potential criminal actions that are outside of this Office’s authority under the APRA and thus will not be investigated. See R.I. Gen. Laws § 38-2-8(b). To the extent that the Complainant alleges criminal violations, the Complainant should contact the appropriate local or state law enforcement agencies.