VIA EMAIL ONLY

February 22, 2023

Mr. Asa Davis

Mr. James P. Marusak

Solicitor, Town of Exeter

Dear Mr. Davis and Attorney Marusak:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Asa Davis (“Complainant”) against the Town of Exeter (“Town”).  For the reasons set forth herein, the Office of the Attorney General (“Office”) finds that the Town violated the APRA.

The Town responded by providing records detailing the Town’s legal expenditures and withheld an email exchange pertaining to the Complainant’s lot, citing the deliberative process privilege. See R.I. Gen. Laws § 38-2-2(4)(E).[1]

Dissatisfied with the Town’s response, the Complaint to this Office followed alleging that the Town violated the APRA when it withheld the email exchange and failed to produce an email to the Town 911 coordinator, which forwarded a “curb cut” permit issued to the Complainant.

The Town submitted a substantive response through its Solicitor, James P. Marusak, Esquire, which included several exhibits, including the withheld emails for in camera review, and affidavits from Town 911 Coordinator, Patricia Whitford, and Zoning Inspector, Hal Morgan. The Town argues that “the email exchange [between Town officials] clearly reflects protected internal deliberations,” exempt from disclosure under R.I. Gen. Laws § 38-2-2(4)(E), which exempts from public inspection “documents that would not be available by law or rule of court to an opposing party in litigation,” and generally includes the “deliberative process” litigation privilege. The Town maintains that the “email exchange between the Zoning Inspector and the 911 Director clearly reflects protected internal deliberations of a public official.” Specifically, the Town argues that:

“The Zoning Inspector was in the process of determining what he believed would be the appropriate address information required for him to process Mr. Davis’ zoning certificate application. It was clearly pre-decision as it was rendered before he approved and issued a certificate with the designation ‘00 Ten Rod Road.’ It was deliberative because the information involved a yet unresolved interpretation and opinion as to whether any ‘alternate’ designation then under consideration would be required at that stage. This entailed an interpretation of the status of a potential 911 address.” (Emphasis in original).

In regard to the Complainant’s second allegation – that the Town improperly withheld an email communication to the 911 Coordinator forwarding a “curb cut” permit – the Town provided affidavits from Town Clerk, Lynn M. Hawkins, and Ms. Whitford, in her capacity as Deputy Town Clerk (Acting Town Clerk while Ms. Hawkins was out-of-office), stating that no such electronic message exists as “the subject permit and incorporated documents were hand-delivered to Ms. Whitford for processing in her capacity as the Acting Town Clerk.” (Emphasis in original).  

We acknowledge Complainant’s rebuttal.[2]

Before proceeding, we believe it appropriate to discuss the nature of Exemption (E) and the deliberative process privilege, which is a topic on which the parties express disagreement. This Office has confirmed that Exemption (E) resembles Exemption 5 of the Freedom of Information Act (“FOIA”)[3] and encompasses the judicially-recognized deliberative process privilege. See Providence Journal v. Executive Office of Health and Human Services, PR 20-01. In PR 20-01, we engaged in a thorough and comprehensive analysis of that privilege. We do not repeat that analysis here, but it can be briefly summarized as follows:

The deliberative process privilege has been applied both in the context of FOIA cases and as a judicially recognized litigation privilege. The United States Supreme Court has explained (in the context of a FOIA case) the policy reasons for recognizing a deliberative process privilege: “[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal quotations and citations omitted). Similarly, the United States Supreme Court has described the deliberative process privilege as furthering the policy of “protect[ing] the decision-making process of government agencies and [particularly] documents reflecting advisory opinions, recommendations and deliberations.” N.L.R.B. v. Sears Roebuck and Company, 421 U.S. 132, 150 (1975) (internal quotations and citations omitted). The Rhode Island Supreme Court likewise recognized that the deliberative process privilege “protects the internal deliberations of an agency in order to safeguard the quality of agency decisions.” In re Comm'n on Judicial Tenure & Discipline, 670 A.2d 1232, 1235 (R.I. 1996).

A document qualifies for nondisclosure under the deliberative process privilege if it is both “predecisional” and “deliberative.” Id. (citing Providence Journal Co. v. U.S. Dept. of Army, 981 F.2d 552, 557 (1st Cir. 1992)).  Specifically, “[a] predecisional document will qualify as ‘deliberative’ provided it (i) formed an essential link in a specified consultative process, (ii) reflect[s] the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.” Providence Journal Co., 981 F.2d at 559 (citing National Wildlife Fed'n v. Forest Serv., 861 F.2d 1114, 1118-19 (9th Cir. 1988)).

Although the in camera nature of our review makes extensive discussion of the withheld emails inappropriate, we conclude that the e-mail exchange between the Town 911 Coordinator and the Town Zoning Inspector was not “deliberative” in nature.  As the United States Supreme Court has described, the “deliberative process covers ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.’”   Klamath Water Users Protective Ass'n, 532 U.S. at 9. Although we do not exclude the possibility that some communication(s) related to this subject-matter may fall within the deliberative process privilege, based upon our in camera review and the affidavits of the 911 Coordinator and Zoning Inspector providing additional context, the e-mail exchange at issue does not reflect the personal opinions of one governmental employee, nor does the exchange reflect a back-and-forth discussion regarding “a process by which government decisions and policies are formulated.”  Accordingly, this Office finds that the Town violated the APRA when it withheld the responsive emails.  

Finally, the Town has provided undisputed evidence that the electronic message Complainant claims exists transmitting the “curb cut” permit to the Deputy Town Clerk does not actually exist as the permit was hand-delivered to the Deputy Town Clerk by the Town Director of Public Works.  Accordingly, we find no violation. See 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[.]”); see also R.I. Gen. Laws § 38-2-7(c).