Background and Arguments

First Complaint

On September 2, 2020, the Complainant submitted an APRA request to the DOC Office of Legal Counsel. His request consisted of the following questions (formatting slightly altered):

“(1) How many grievances been [sic] filed within the Adult Correctional Institutions since 2015, til [sic] present day; A) out of that number of grievances that have been filed within the Adult Correctional Institution, how many were (i) denied?, (ii) approved?, and (iii) unprocessed?; B) Out of [the above grievances], how many of them have the correlating investigators [sic] report?”

On September 18, 2020, the DOC sought an additional 20 business days to fulfill this request, pursuant to R.I. Gen. Laws § 38-2-3(e). On October 7, 2020, before the expiration of this 20-business-day period, the DOC responded to the request providing Complainant with a one-page document consisting of five lines, reading: “Approved,” “Denied,” “Unprocessed,” “Unprocessed / Referred to OOI,” and “Withdrawn.” Following each line was a numeric value, presumably reflective of the grievances falling into each category.

Dissatisfied with the DOC’s response, the Complaint to this Office followed alleging that the DOC’s response to his request was “far from adequate.” The Complainant stated that the provided document seemed “susceptible to manipulation,” lacked a “department or office heading,” and lacked further detail, such as a timeline to confirm that the document reflected the parameters of his request. Further, the Complainant alleged that the provided document failed to address “Part B” of his request seeking information as to how many of the grievances had “correlating investigators reports.”

Second Complaint

On January 21, 2021, the Complainant submitted an APRA request to the DOC seeking:

“1) Amount of grievances that have been filed against D.O.C. staff member Vance Tyree, in total. 2) Amount of grievances that have been filed against D.O.C. staff member Vance Tyree, that have been approved. 3) Amount of disciplinary sanctions that have been applied to D.O.C. staff member Vance Tyree, by D.O.C. administrative staff and superiors. 4) Amount of civil actions that have been filed against D.O.C. staff member Vance Tyree, naming him the Defendant in his personal capacity.”

The Complainant contends that the DOC violated the APRA by denying his request stating that the requested records were “deemed not public.” The Complainant argues that the requested documents are public because they are documents he himself filed and would be available to him in civil litigation.

A substantive response was submitted by DOC Chief Legal Counsel Nicole B. DiLibero, Esquire, which included an affidavit by former Executive Legal Counsel, Kathleen Kelly. The DOC contends its “denial of [the Complainant’s] request was based upon R.I. Gen. Laws 38-2-2(4)(A)(I)(B)” because the requested documents “contain personal individually identifiable information … which would constitute a clearly unwarranted invasion of personal privacy” and “that no amount of redaction could cure the identifiable nature of the information sought.” The DOC also reiterated its prior argument that the Complaint should be dismissed due to Complainant’s “civilly dead” status. See R.I. Gen. Laws § 13-6-1; see also Footnote 1.

We acknowledge Complainant’s rebuttal.

This Office requested a brief supplemental submission from the DOC seeking the following:

·         Please address whether DOC maintains the specific records sought by the Complainant, which appear to be numerical and/or statistical data, and if so, why this information was not provided to the Complainant in the first instance.

·         Please also address whether the DOC maintains this information in electronic format and whether a document could be created to respond to the request without triggering RIGL 38-2-2(4)(A)(i)(b).

The DOC responded through Attorney DiLibero and affirms its arguments that the information sought is exempt from disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(i)(b) as “the request seeks information related to a specific state employee.”  DOC states that, should the information sought be deemed public, “a document can be created containing the electronic data which is responsive to the requests.”

The Complainant did not submit a supplemental rebuttal.

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.

Unless exempt, all records maintained by a public body are presumed to be public records. A public body has ten (10) business days to respond in some capacity to a records request, whether by producing responsive documents, denying the request with reason(s), or providing an explanation as to why an extension of the period to comply is necessary. See R.I. Gen. Laws § 38-2-3(e).

As an initial matter, although the so-called “civil death statute,” R.I. Gen. Laws § 13-6-1, was in place at the time these Complaints were filed with this Office, it has since been declared unconstitutional. See Zab v. Rhode Island Department of Corrections, 268 A.3d 741 (R.I. 2022). As such, we must reject the applicability of this statute.  For these reasons, and under the circumstances presented, we determine that the Complainant does have standing to bring these Complaints and will proceed to the merits of the allegations.

The First Complaint

It is apparent that the Complainant’s initial request was presented in the form of a series of questions looking for numerical or statistical information related to grievances. DOC concedes that it created a document based upon its electronically stored data to respond to the Complainant’s request because “[t]here were not documents which could have been provided to show the total numbers.”  See R.I. Gen. laws § 38-2-3(h). The Complainant argues that this created document could be “susceptible to manipulation,” yet Complainant provides no evidence of misconduct or wrongdoing on the part of DOC related to the creation of this document, nor can this Office discern any such conduct from the record before us. Accordingly, we find no violation in connection with DOC’s creation of the document responsive to the Complainant’s request. We do note, however, that DOC could have provided a more detailed explanation in its response to the Complainant about the creation of the document and the limitations of its database/electronically stored information. We encourage public bodies to be as forthcoming as possible to aid requesters understanding and to promote transparency when responding to APRA requests.

Next, although DOC failed to respond to Part (B) of Complainant’s request concerning how many of the grievances referenced in Part (A) have “correlating investigators reports,” it now states that it does not have a specific document or database that contains the specific information requested[.]” As such, no documents can be provided. See R.I. Gen. Laws § 38-2-3(h).  While DOC does not maintain a specific document responsive to Complainant’s inquiry – and since Complainant asks only how many grievances have correlating investigators reports and Complainant does not ask for the actual reports – the DOC’s supplemental response fairly answers the Complainant’s inquiry and indicates that “[i]t is likely that each grievance filed has a corresponding investigative report.”  Nonetheless, because the DOC failed to specifically state whether it had records responsive to Part (B) of the request, we find the DOC violated the APRA. See R.I. Gen. Laws § 38-2-3(e).

The Second Complaint

Here, the Complainant sought numerical and/or statistical data related to a specific DOC staff member, which the DOC contends is exempt from disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(i)(b) on the grounds that such disclosure would constitute a “clearly unwarranted invasion of personal privacy.” However, DOC has failed to provide sufficient argument or evidence to this Office showing that numerical and/or statistical data – rather than the specific grievances, sanctions, disciplinary actions, or civil actions (if any) – amounts to a “clearly unwarranted invasion of personal privacy.” Based upon the record before us, we cannot conclude that numerical data in and of itself meets this standard within Exemption (A)(i)(b). The DOC has also acknowledged that, should the information be deemed public, it has the ability to provide the numerical data to the Complainant.

Accordingly, within ten (10) business days of the date of this finding, the DOC should submit a brief supplemental submission providing additional argument and/or evidence to support its position that the numerical data is exempt, either in whole or in part, pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(i)(b) or, providing the Complainant with the numerical data he seeks, free of charge. See R.I. Gen. Laws § 38-2-7(b) (“[a]ll copying and search and retrieval fees shall be waived if a public body fails to produce requested records in a timely manner”).

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). Additionally, 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).

Although injunctive relief may be appropriate in this case, we will allow the DOC time to comply with the directives of this Office outlined above. Again, the DOC may not assess any charge for the production of additional documents. See R.I. Gen. Laws § 38-2-7(b) (“All copying and search and retrieval fees shall be waived if a public body fails to produce records in a timely manner”).   Based upon the evidence presented, we find insufficient evidence for a willful and knowing, or reckless violation.  Of note, the DOC interpreted Complainant’s request for answers to questions as a request for documents and provided the Complainant with responsive information. 

Although the Attorney General will not file suit in this matter at this time, nothing within the APRA prohibits an individual 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). Please be advised that we will keep this file open pending the steps described above.

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