Background and Arguments

The Complainant alleges that the City violated the APRA when it failed to respond to her January 11, 2023 APRA request.  

Assistant City Solicitor, Lisette Gomes, submitted a substantive response in affidavit form on behalf of the City. The City concedes that it failed to timely respond to the Complainant’s request, attributing this failure to the absence of the Law Department employee typically responsible for responding to APRA requests. The City maintains that, upon receiving an email from the Complainant inquiring as to the status of her request on January 30, 2023, the City promptly responded advising her that no responsive records exist.

We acknowledge Complainant’s rebuttal.

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.

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. The APRA permits a public body to invoke an additional twenty (20) business day extension for certain reasons set forth in the statute. See R.I. Gen. Laws § 38-2-3(e).

Here, it is undisputed that the City failed to timely respond to the Complainant’s request. Accordingly, we find the City violated the APRA.  

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).

Injunctive relief is not appropriate as the City has now provided a substantive response to Complainant's January 11, 2023 APRA request by affirmatively stating that it does not maintain records responsive to said request. Nor do we find sufficient evidence that the City’s violation was willful and knowing, or reckless. In particular, the City attests that its untimely response was due to a staff member being out of the office and, when the City became aware of its overdue response, it promptly provided the same to the Complainant. We are concerned, however, that the City has committed similar violations in the past. See Lyssikatos v. City of Pawtucket, PR 19-24 (finding the City failed to timely respond to Complainant’s APRA request); KP v. City of Pawtucket, PR 20-63 (finding the City failed to timely respond to the Complainant’s APRA request). Despite this prior history, we are mindful of the City’s prompt (albeit untimely) response after inquiry as well as the fact that the City had no responsive documents. Nevertheless, the City is advised that this finding constitutes notice that its actions violated the APRA and that this finding may serve as evidence of a willful and knowing, or reckless, violation in a future similar situation. The City must ensure that coverage over APRA requests is maintained even when an assigned employee is temporarily out of the office.  Should the City be found to have committed a similar APRA violation in the future, this Office will be mindful of this history and the multiple admonishments the City has now received regarding its noncompliance with R.I. Gen. Laws § 38-2-3(e).  

Although the Attorney General will not file suit in this matter, nothing within the APRA prohibits an individual or entity from obtaining legal counsel for the purpose of instituting 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

By: /s/ Adam D. Roach

Adam D. Roach, Special Assistant Attorney General