| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
| | |
| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
February 22, 2023
PR 23-16
Roberta J. Mulholland, Esq.
Peter F. Skwirz, Esq.
Re: Mulholland v. Town of South Kingstown
Dear Attorney Mulholland and Attorney Skwirz:
The investigation into the Access to Public Records Act (“APRA”) complaint filed by Attorney Robert J. Mulholland (“Complainant”) against the Town of South Kingstown (“Town”) is complete. For the reasons set forth herein, we find that the Town violated the APRA.
The Complainant submitted a Complaint to this Office alleging that the Town failed to respond to an APRA request. On July 22, 2022, the Complainant requested: “1. Communications including electronic communications and notes of communication, between Jon Schock and any other person in connection with or related to work by the Town of South Kingstown on Dam Street in 2020 that abutted the property at 1464 Kingstown Road; and 2. review by an engineer of the Town’s build up of the ‘shoulder’ of Dam Street abutting the property at 1464 Kingstown Road.” Appended to the Complaint was the initial request to the Town, a follow-up email sent after ten business days had elapsed, a copy of the Town’s initial response to the request (extending the time to respond by an additional twenty days), and evidence of a past request made by the Complainant in March of 2022.
Attorney Peter F. Skwirz, Esq., Assistant Town Solicitor for the Town of South Kingstown, submitted a Response on behalf of the Town. The Town concedes that it “violated the APRA by not providing a response to the Complainant’s APRA request within the timeframe mandated by the APRA.” Nevertheless, the Town “maintains that it is not appropriate for [this] office to file suit over this matter, as the violation was not willful, knowing or reckless.” In support, the Town included in its response an affidavit from the Executive Assistant to the Town Manager and the Assistant Solicitor for the Town, Attorney Amy Goins. The affidavits indicate that internal confusion as to APRA responsibilities within the Town and miscommunication between the Town and the Town Solicitor’s Office resulted in a series of events that led to the APRA violation. The Town avers that the Complainant has since been provided with the requested records.
The Complainant submitted a Rebuttal challenging that the Town had “good cause” to extend the time to respond to the request. The rebuttal further contends that at the time of her request “the town manager, after over two months in the position, did not have a procedure in place to respond to APRA requests.”[1] The Complainant seeks that this Office impose a fine upon the Town “to ensure the failure of the Town to comply with the law is taken seriously by both the administrative officer and the town council.”
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.
Pursuant to the APRA, 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 extending the period necessary to comply. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7. A public body may extend the time to respond to an APRA request by an additional twenty (20) business days “if it can demonstrate that the voluminous nature of the request, the number of requests for records pending, or the difficulty in searching for and retrieving or copying the requested records, is such that additional time is necessary to avoid imposing an undue burden on the public body.” Id.
Here, the record demonstrates that the Town received the Complainant’s APRA request on July 22, 2022. The Executive Assistant to the Town Manager states that the Complainant “produced a July 22, 2022 email [to her] making a request for records pursuant to the APRA” even though she had “no recollection of receiving” the same and “could not find [the email]” in a subsequent email search.[2] Additionally, it undisputed that the Town failed to provide a written response to the Complainant until August 11, 2022, which the Town admits was tardy, nor does the Town dispute that the Complainant was in compliance with its procedures for submitting APRA requests. See R.I. Gen. Laws § 38-2-3(d) (requiring public bodies to establish written procedures regarding access to public records). Accordingly, we conclude that the Town violated the APRA when it failed to respond to Complainant’s request within the statutory time period. See R.I. Gen. Laws § 38-2-7.
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. While we are concerned by the miscommunication, lack of procedure, and technological deficiencies that all contributed to this APRA violation, we have not found any recent, similar violations by the Town. The Town presented evidence of the same, noting that “there has been no finding of an APRA violation by the Town going at least as far back as 2017 (which is as far back as [this Office’s ClerkBase] database provides).” The Town further submits that it is “engaging its vendor that is responsible for e-permitting to explore the creation of an online APRA request system, with a designated Town employee responsible for quarterbacking all APRA responses.” Within thirty (30) days, the Town should provide this Office, copying Complainant, with evidence that the Town has in place a procedure for processing APRA requests.
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
/s/ Adam D. Roach
Adam D. Roach
Special Assistant Attorney General
[1] To the extent Complainant’s rebuttal raises new or additional allegations related to the Town’s noncompliance with the APRA, these allegations are beyond the scope of the initial Complaint. As we explained in our acknowledgment letters, any rebuttal should not raise new issues that were not presented in the complaint since the public body has no opportunity to respond to the new allegations and this Office cannot fully investigate them. See Mudge v. North Kingstown School Committee, OM 12-35. Consistent with this Office's precedent and acknowledgement letters to the parties, this Office declines to review issues raised for the first time in a rebuttal.
[2] The Town does not challenge the authenticity of the exhibit evidencing this July 22, 2022 APRA request, made via email to the Executive Assistant.