Background and Arguments

The Complainant submitted an APRA request to DOR “requesting Form T-71SP - Self Procurement Insurance Premiums Returns that have been filed from January 1, 2018 to present.” DOR denied the request pursuant to R.I. Gen. Laws § 38-2-2(4)(O), which provides that “all tax returns” are non-public under the APRA, and R.I. Gen Laws § 38-2-2(4)(S) because taxpayer information is confidential by law and disclosure is prohibited unless authorized by statute. The Complaint to this Office followed.

The Complainant asserts that Rhode Island law separately requires a) the filing of a transaction report by an insured that procures insurance directly from an unauthorized insurer, and b) a tax upon premiums for insurance directly procured from an unauthorized insurer. See R.I. Gen. Laws §§ 27-3-38.1(a); 27-3-38.1(d). The Complainant argues that DOR made the decision to include both the transaction report and tax return information in the same reporting form and that even if the portion of the form pertaining to tax returns is non-public, the other “transaction report” portion of the form is segregable and should be produced. The Complainant states that DOR “cannot extend the protections afforded a return to a non-return simply by choosing to promulgate a single form combining two separate statutory duties.” Accordingly, the Complainant asserts that DOR must produce:

• Name and address of the insured

• Name and address of the insurer

• The subject of the insurance

• A general description of the coverage

• The amount of premium currently charged

In response to this Complaint, DOR argues that the Tax Division has discretion regarding how to create the reporting forms and exercised that discretion by creating a combined form that includes the tax return information in addition to the transaction report information. Specifically, DOR states, “even if the § 27-3-38.1(a) report and § 27-3-38.1(d) return could be construed as separate reporting requirements, the Tax Administrator has sole discretion over the type of forms promulgated pursuant to this statute.” DOR asserts that “[u]ltimately, the Tax Division included all required information on a single return and tax returns are not public, so the information requested cannot be provided.”

The Complainant submitted a rebuttal that does not dispute that the portion of the form containing tax return information is non-public, but argues that the APRA requires that any reasonably segregable portion of a requested record must be produced. The Complaint asserts that the “transaction report” portion of the form is easily identifiable and segregable and provides a graphic indicating the portion of the form that the Complainant considers to be a segregable “transaction report.” He argues that DOR is accordingly required to produce that portion of the form that does not pertain to tax return information. 

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.

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). The APRA also specifies that “[a]ny reasonably segregable portion of a public record excluded by § 38-2-2(4) shall be available for public inspection after the deletion of the information which is the basis of the exclusion. If an entire document or record is deemed non-public, the public body shall state in writing that no portion of the document or record contains reasonable segregable information that is releasable.” R.I. Gen. Laws § 38-2-3(b) (emphasis added).

Here, DOR asserts, and the Complainant does not dispute, that the portion of the requested forms that contain tax return information is exempt from disclosure under Exemptions (O) and (S) of the APRA. Accordingly, we find that DOR did not violate the APRA by withholding that portion of the requested forms. The parties dispute, however, whether the portion of the form that contains the “transaction report” information required by R.I. Gen. Laws § 27-3-38.1(a) is public.

The Complaint correctly notes that under the APRA, even if part of a record is non-public, any reasonably segregable portion of the record that is not exempt must be produced. The APRA expressly requires that when a public body deems an entire record to be non-public, it “shall state in writing that no portion of the document or record contains reasonable segregable information that is releasable.” R.I. Gen. Laws § 38-2-3(b). Our review of DOR’s response to the APRA request reveals that DOR withheld the requested records in their entirety but failed to include this required language. As such, we determine that DOR violated the APRA by withholding the requested records in their entirety without stating that no reasonably segregable portion could be produced.

We now consider whether the APRA requires DOR to produce the portion of the form that the Complainant identifies as containing the “transaction report” information. When DOR denied the request and responded to this Complaint, it primarily relied on the presence of tax return information in the document. It does not appear that DOR considered whether the “transaction report” portion of the form is reasonably segregable and public. DOR may take the position that the entire form constitutes tax return information and that there is no segregable portion, but that argument was not clearly developed or supported in the record before us.

Even if the entire form does not constitute a tax return, there are reasons to believe that some or all of the “transaction report” portion of the form may be exempt from disclosure. For instance, the APRA recognizes that it is “the intent of this chapter to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-1. Under the APRA, “personal individually identifiable records . . . the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” are exempted from the definition of public records. R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). This exemption encompasses a balancing test whereby the privacy interests in a record are weighed against any public interest.

Here, it appears that there is a privacy interest in the type of information the Complainant is seeking, particularly the name and address of the insured. Additionally, under the APRA the public has an interest in a document that “sheds light” on how government operates. See U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 775 (1989). Based on the record before us, it is not apparent how the requested information would shed light on governmental operations. However, the issue of whether the “transaction report” portion of form is exempt pursuant to Exemption (A)(I)(b) or any other exemptions was not expressly addressed by the parties.

The APRA provides that “[e]xcept for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.” R.I. Gen. Laws § 38-2-7(a). DOR did not cite R.I. Gen. Laws § 38-2-2(4)(A)(I)(b) as a basis for withholding the requested records. Nonetheless, we have previously found good cause for determining that an exemption has not been waived when disclosure of the requested information implicates third-party privacy interests. See Scripps News v. Rhode Island Dept. of Bus. Regs., PR 14-07 (“We have great difficulty accepting the argument that documents maintained by DBR relating to third parties should be disclosed because of an untimely response.”); August v. RIPTA, PR 20-42 (“Because the ridership reports at issue contain information about third party individuals, and which could be used to track third party private citizens, we do not think RIPTA’s failure to identify and exempt these responsive records when first responding to the request should result in these individuals’ privacy interests not being considered.”).

Because DOR has not directly addressed the issue remaining before this Office, namely whether the “transaction report” portion of the form is reasonably segregable and/or non-public under the APRA, and because the disclosure of the requested information potentially implicates third-party privacy interests, this Office believes it appropriate to direct the parties to provide supplemental submissions.

Within ten business days of the date of this finding, DOR should do one of the following:

1)      Produce the requested records after redacting just the bottom portion of the form that the parties do not dispute constitutes exempt tax return information;

2)      Produce the requested records after redacting the bottom portion of the form that the parties do not dispute constitutes exempt tax return information and also redacting any other information that DOR believes is non-public; cite the relevant exemption(s) that provide a basis for redacting anything other than the bottom tax return portion of the form and explain why those exemptions apply; and, if applicable, state why such exemptions should not be considered waived if they were not previously raised; or

3)      If DOR believes that the forms are non-public in their entirety and that no reasonably segregable portion can be produced, cite the relevant exemption(s) for withholding the “transaction report” information and explain why those exemptions apply and, if applicable, state why such exemptions should not be considered waived if they were not previously raised.

DOR should provide its submission to both the Complainant and this Office. To be clear, this finding is not stating that DOR should produce any information that DOR believes is required to be kept confidential by law.

Within ten business days of receiving DOR’s supplemental submission, the Complainant may provide a response to this Office (copying DOR). If DOR asserts that any information is redacted or withheld pursuant to the privacy balancing test and if the Complainant disagrees with that assertion, the Complainant should identity what he contends is the public interest in that information.

Conclusion

This Office has determined that DOR violated the APRA by failing to state that no reasonably segregable portion of the withheld records is available, but is requesting supplemental submissions before determining whether any portion of the requested records is public and whether injunctive relief is appropriate. Although this Office will not bring suit at this time, 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 this file will remain open pending the provision of the supplemental submissions described above and this Office’s review of the same.

We thank you for your interest in keeping government open and accountable to the public.

Sincerely,

PETER F. NERONHA

ATTORNEY GENERAL

By: /s/ Katherine Sadeck

Katherine Sadeck

Assistant Attorney General