Background and Arguments

On August 16, 2021, the Complainant submitted an APRA request to DOA, asking “to inspect” “1. [the] full and complete record for transaction relating to [p]urchase order No. 3488233” and seeking “2. [t]he method of payment for each transaction relating to purchase order No. 3488233[.]”  Per the APRA, DOA was required to respond to Complainant’s request within ten business days from the receipt of that request; because Complainant’s request was submitted after business hours on August 16, 2021, DOA considered the request received on the following business day, August 17, 2021.

On September 26, 2021, Complainant filed the instant Complaint, in which he alleges that DOA willfully and knowingly withheld public records by failing to respond in the allotted time.

Senior Legal Counsel to DOA, Albert J. Vitali III, Esquire, provided a substantive response on behalf of DOA.  DOA’s response does not dispute that DOA failed to respond to the request within ten business days.  The response states that DOA was uncertain what Complainant’s APRA request meant by a “full and complete record for transaction” and forwarded the request to both the Division of Purchases and the Division of Accounts and Control; however, those agencies were also unclear as to what was being requested. 

On September 30, 2021, DOA sent an email to Complainant seeking to clarify his request; in that same email, DOA also timely responded to a different request submitted by Complainant.  Complainant responded to DOA’s September 30, 2021 email by clarifying that he was not seeking invoices related to the purchase order number in his original request, whereupon DOA created a spreadsheet listing the transactions related to that purchase order and provided it to the Complainant.

After receiving the spreadsheet from DOA, Complainant stated that this response fulfilled “number 2 of [his] request” but reiterated that he was looking to “inspect the transaction.”  When DOA informed him that the only additional responsive records it possessed were the invoices that the Complainant indicated he was not seeking, Complainant requested those invoices on October 4, 2021.  As of the date of its response to this Complaint, DOA indicated that it had obtained the invoices, was in the process of reviewing and redacting banking information from them in accordance with the APRA, and would timely respond to Complainant’s October 4, 2021 email by producing the invoices.

DOA admits that its failure to timely respond to Complainant’s original request by seeking further clarification was an oversight, but offers as “mitigating circumstances” the facts that “1. [DOA] was handling another request from [Complainant] at the same time[,] 2. [DOA’s] dedicated APRA person [was then] out of the office on maternity leave[,]” and “3. The Division of Purchases APRA person [was then] working remotely.”  DOA also suggests that it has materially complied with the APRA because Complainant ultimately received what he requested.

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 case law 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 in accordance with the APRA. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7.

It is undisputed that Complainant submitted an APRA request to DOA on August 16, 2021, which DOA considered to have been officially received on August 17, 2021.  As such, DOA’s response was due on or before August 31, 2021.  It is also undisputed that DOA did not respond to the August 17, 2021 request until September 30, 2021.  Although DOA indicated that it required clarification regarding the records being sought, DOA did not dispute that the request was recognizable as an APRA request.  To be sure, the requester has an obligation to clearly identify the records sought, see Go Local Prov v. City of Providence, PR 16-20, and it may be appropriate for a public body that receives an unclear request to seek clarification and toll the response time pending clarification.  Here, however, DOA acknowledges that it received the request and did not seek clarification or send any other response to the request by the statutory deadline.  As a result, we conclude that DOA 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.

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).  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 reckless APRA violation.  DOA’s response, which Complainant has not challenged, indicates that DOA was unclear as to the records being sought, eventually requested clarification from Complainant, and then responded based on that clarification.  DOA acknowledged its oversight in failing to ask Complainant for clarification in a timely manner and identified several mitigating factors that affected its capacity to respond.  Our conclusion is also supported by the fact that DOA does not have any recent, similar violations.  Nonetheless, 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.

We also do not find injunctive relief appropriate because Complainant has not disputed the fact that DOA ultimately responded to the August 17, 2021 APRA request. We note that the scope of this finding is expressly limited to Complainant’s September 26, 2021 Complaint to this office, which is based solely on DOA’s failure to respond to the August 17, 2021 APRA request in the allotted time.  If the Complainant has any concerns regarding the sufficiency of DOA’s substantive APRA response, which was sent after this Complaint was initiated, he is free to submit a complaint regarding that topic.  

Although the Attorney General will not file suit in this matter, nothing within the APRA prohibits an individual or entity from instituting an action for injunctive or declaratory relief in Superior Court as provided in the APRA. 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/ Jeff Kidd

Jeff Kidd

Special Assistant Attorney General