VIA EMAIL ONLY

March 31, 2023

Dr. Albert Alba

Mary E. Kay, Esquire

Assistant Director and Chief Legal Counsel

Rhode Island Department of Environmental Management

Dear Dr. Alba and Attorney Kay:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaints filed by Dr. Albert Alba (“Complainant”) against the Rhode Island Department of Environmental Management (“DEM”).  The Complainant submitted two (2) APRA complaints against DEM, and because the Complaints involve the same parties and a similar subject matter, we will combine the Complaints and issue one finding. For the reasons set forth herein, we find that DEM did not violate the APRA.

First Complaint

On April 8, 2022, the Complainant submitted an APRA request for: “all the public records that will note all those who approved the awarding of the recently announced RIDEM – Procaccianti 19 Year Lease. I would like to have the records that note why Procaccianti was selected after they previously violated the terms of its prior lease by failing to maintain the Lighthouse Inn.”[1] After extending the time to respond to the request by twenty (20) business days, DEM substantively responded to the request on May 23, 2022. DEM denied the request, stating that the “[r]equested records do not exist” and that “[t]he remainder of this APRA does not request records but appears to ask questions and state opinions which are not matters that are subject to an APRA request.”

The Complainant filed a Complaint with this Office, challenging DEM’s contention that “there are no records available.” He adds that he “emailed the newly appointed Director of [DEM] … for an appeal to obtain such records. He has not written back to me.”

Attorney Mary E. Kay, Assistant Director and Chief Legal Counsel at DEM, submitted a substantive response on behalf of the public body. DEM reaffirmed that the records sought by the Complainant “do not exist” because “DEM has never signed a lease for a term of 19 years with any party.” Further, DEM provided information as to the nature of its search for responsive records, stating that it “performed an extensive review of DEM’s files and relevant electronic mailboxes and found no records that revealed a recent Procaccianti (or related entities) 19 Year Lease.”

We acknowledge the Complainant’s rebuttal, wherein, among other arguments, he reiterates that he requested an administrative appeal and DEM “failed to respond back to me.”

• Failure to Provide Responsive Records

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”).

Here, as to the Complainant’s first Complaint relating to his request for the “19 Year Lease,” the record demonstrates that DEM “performed an extensive review of [its] files and relevant electronic mailboxes and found no records that revealed a recent Procaccianti (or related entities) 19 Year Lease” and concluded that “the requested documents never existed.” In a subsequent filing with this Office, the Complainant acknowledged the same, noting that through a separate communication with this Office[2] he learned that “no 19 – year lease was generated” and that “this was confirmed by [DEM] when I requested who generated the 19-year parking lot lease agreement.”

Similarly, as to the second Complaint, DEM notes that “no ‘month-to-month lease’ document requested exists. DEM has no documents in our possession to show the names on who approved any ‘month-to-month lease.’” Additionally, in response to the Complainant’s request for an administrative appeal, DEM explains that it completed “a second review of the Department’s files [and] concluded that the documents … requested in [the Complainant’s] July 25, 2022 APRA request email indeed do not exist.” In rebuttal, the Complainant again acknowledged that no “month-to-month” lease exists, stating that DEM is “allowing Proaccianti (sic) Developers to continue to operate parking lots without a legitimate lease.” (Emphasis added).

The Complainant asserts various allegations with respect to DEM and the Lighthouse Inn land, but does not provide any evidence that DEM is in possession of either a “19 Year Lease” or a “month-to-month” lease. The Complainant also does not contest the reasonableness of the search performed by DEM for potentially responsive records on both requests. “The APRA requires a public body to conduct a reasonable search aimed at locating documents that are responsive to the particular request.” J.H. Lynch & Sons v. Rhode Island Department of Transportation, PR 19-06; see also Gagnon v. East Prov. School District, PR 15-52 (“When determining the adequacy of an agency’s search, one must measure the reasonableness of the search in light of the scope of the request.”). The evidence in the record, including DEM’s uncontested assertions in its Response to the Complainant’s first Complaint and its administrative appeal response to the Complainant’s second request, support DEM’s assertion that it conducted a reasonable search.

There is insufficient evidence in the record that DEM maintains either a 19-year lease or a month-to-month lease. Accordingly, based on the totality of the undisputed evidence, including the Complainant’s own statements, 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[.]”); R.I. Gen. Laws §§ 38-2-3(h), 38-2-7(c).

• Failure to Respond to Administrative Appeal Request

The APRA provides that:

“Any person or entity denied the right to inspect a record of a public body may petition the chief administrative officer of that public body for a review of the determinations made by his or her subordinate. The chief administrative officer shall make a final determination whether or not to allow public inspection within ten (10) business days after the submission of the review petition.”

R.I. Gen. Laws § 38-2-8(a).

In his initial Complaint, the Complainant alleges that he “emailed the newly appointed Director of [DEM] … for an appeal to obtain such records. He has not written back to me.” Based on the record, this Complaint was filed on May 31, 2022, less than ten (10) business days after DEM denied the Complainant’s request on May 23, 2022.

Our precedent is clear that a complaint presented to this Office before this ten (10) business day window closes and before the public body has submitted a response to the underlying APRA administrative appeal request typically has not “developed sufficiently to permit an intelligent and useful decision to be made.” See Black’s Law Dictionary (9th ed. 2009). See also R.I. Gen. Laws § 38-2-8(a).

In Go Local Providence v. City of Providence, this Office declined to find an APRA violation, holding that “(the complaint) was filed before (the) allegation was ripe … pursuant to the APRA, the City had ten (10) business days to reply to your request, not ten (10) days.” See Go Local Providence v. City of Providence, PR 13-18. Although we do not exclude the possibility that some set of facts may exist that makes a complaint filed within ten (10) business days of a request for an administrative appeal and before a public body has the opportunity to respond timely, we have no evidence that the filing of this complaint six (6) business days after the request for an administrative appeal was made would fall within that category. Consequently, for this reason, we find that DEM did not violate the APRA.

In his second Complaint, the Complainant again alleges that he “appealed [his] request to the [DEM] Director … [h]e failed to respond back after 10 working days.” In response, DEM argues that the Complainant “has not properly calculated the due date for DEM’s response.” DEM contends that the appeal “was received by DEM on Monday, July 25, 2022” (the first business day after the appeal was sent via email, on “Sunday, July 24, 2022”). As such, “[b]ecause weekends and holidays are not included when counting ‘business days,’ the actual due date was August 9, 2022.” In support, DEM appended to its Response the Complainant’s request for an administrative appeal, dated July 24, 2022, as well as DEM’s response to the same, dated August 5, 2022 (identified in DEM’s Response as “Exhibit C” and “Exhibit F,” respectively).

Because DEM had ten (10) business days[3] upon receipt of the Complainant’s request for an administrative appeal to submit a response to the Complainant, and because DEM submitted its response before the expiration of these ten (10) business days, we find that DEM’s response to the Complainant’s request was timely. See R.I. Gen. Laws § 38-2-8(a). As such, we find no violation.