VIA EMAIL ONLY

June 1, 2023

Attorney Giovanni D. Cicione, Esquire

Attorney Anthony DeSisto, Esquire

Warren Town Solicitor

Dear Attorney Cicione and Attorney DeSisto:

The investigation into the Access to Public Records Act (“APRA”) complaint filed by Attorney Giovanni D. Cicione, Esquire, against the Town of Warren (“Town”) is complete. For the reasons set forth herein, we find that the Town violated the APRA.

5. Any communication or meeting record, whether electronic, paper, or in any form whatsoever, to or from any Town employee or members of the Town Council to the owners, representatives, employees, tenants, or agents of the Tourister Mills development, including but not limited to those relating to an access easement for the Gateway Project.”

After extending the time to respond, on June 15, 2022, the Town denied the Complainant’s request in full. In order to fully appreciate the Town’s woeful response – and our finding of a violation – we reproduce the Town’s denial in large part:

“While the Town of Warren falls under the purview of the Access to Public Records Act, R.I.G.L. § 38-2-1, et seq., the nature of your request extends beyond the requirements of APRA.

First, under APRA § 38-2-2(4), the following records that you request are not deemed to be public documents subject to disclosure under APRA:

1.      Records relating to an attorney-client relationship.

2.      Trade secrets and commercial or financial information obtained from a person, firm, or corporation that is of a privileged or confidential nature.

3.      Reports and statements of strategy or negotiation with respect to the investment or borrowing of public funds.

4.      Preliminary drafts, notes, impressions memoranda working papers and work products.

5.      Correspondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacity.

6.      Advisory opinions prior to the public body issuing its opinions.

Second, APRA § 38-2-3(a) provides that public records are only those records ‘maintained or kept on file by any public body.’

Third, agencies are not required by APRA to create documents that do not exist. APRA § 38-2-3(h) states the following:

Nothing in this section shall be construed as requiring a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made except to the extent that such records are in an electronic format and the public body would not be unduly burdened in providing such data.

Fourth, APRA is not intended for the mass collection of data. The Rhode Island Supreme Court has observed that ‘the Legislature did not intend to empower the press and the public with carte blanche to demand all records held by public agencies.’  Providence Journal Co. v. Convention Ctr. Auth., 774 A.2d 40, 46 (R.I. 2001) (quoting Providence Journal Co. v. Sundlun, 616 A.2d 1131, 1134 (R.I. 1992)). While the Town of Warren recognizes that your request is targeted to the Warren Gateway project and the communications of the Town Planner, and not all records, your request ultimately is very burdensome.

Therefore, based on the above, your APRA request is denied. Notwithstanding the denial, it should be noted that your request is not only overly broad, but also vague. You may modify your request for specific documents; the Town will respond to that request in an appropriate fashion.”

The Town’s denial did not comply with R.I. Gen. Laws § 38-2-3(b): “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.”

The Complainant subsequently submitted a Complaint to this Office, along with evidence of a request for an administrative appeal submitted to the Town on July 18, 2022. The Complainant alleges that the Town’s initial response to his request was improper and that the Town failed to respond to his request for an administrative appeal.

Attorney Anthony DeSisto submitted a substantive response on behalf of the Town. The Town reiterated that the Complainant’s initial request “was not framed in a manner as to avoid an unreasonable burden on the Town.” The Town addressed each enumerated part of the request briefly, setting forth the extent to which Part 1 and Part 2 would likely produce a voluminous amount of records, that Part 3 sought records that were “not subject to disclosure under 38-2-2(4)(M),” that Part 4 was “vague,” and that Part 5 was vague and potentially unduly burdensome, depending upon interpretation. The Town did not address its alleged failure to respond to the Complainant’s request for an administrative appeal. Importantly, the Town makes clear in its response to this Office that “[a]t no point did the Town indicate that there were no documents responsive to Mr. Cicione’s request. Rather, the Town denied the initial request based on its burdensome, vague, and overly broad nature.”

The APRA requires that “any denial of the right to inspect or copy records ... shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial.” R.I. Gen. Laws § 38-2-7(a). Additionally, the APRA provides that “[a] reasonable charge may be made for the search and retrieval of documents. Hourly costs for a search and retrieval shall not exceed fifteen dollars ($15.00) per hour and no costs shall be charged for the first hour of a search or retrieval.” See R.I. Gen. Laws § 38-2-4(b).

Here, with one exception discussed below, the Town did not specify how any of the APRA exemptions it referenced in its denial applied to exempt from disclosure any requested or responsive documents. Indeed, the Town’s response to this Office makes clear that at “no point did the Town indicate that there were no documents responsive to Mr. Cicione’s request,” but rather “the Town denied the initial request based on its burdensome, vague, and overly broad request.”  (Emphasis added).  As this Office has explained, “nothing within the APRA permits a public body to deny a request based on the public body’s perception that said request is ‘overbroad’ or that it would be difficult to calculate a prepayment estimate for search, retrieval, and review.” See ARIASE v. RIDE, PR 21-20. 

Rather than denying a request because it may be “overbroad” or “burdensome,” as noted above, the APRA permits a public body to assess a reasonable search and retrieval cost. This was an option available to the Town, which it declined to exercise. And while this Office has encouraged a requester and a public body to communicate in order to resolve any issues in processing an APRA request, the Town failed to avail itself of this opportunity; instead, denying the request because it was purportedly burdensome, vague, and overbroad. Importantly, the Town’s Response to this Office provides an interpretation for request Nos. 1-3, without any indication that any of the first three requests were vaguely worded.

As a further example, it is uncontested that the subject of the request, identified as the “Warren Gateway project,” referred to the “the proposed redevelopment of the Warren Gateway site at 1-15 Main Street in Warren during the period of time since the Town’s acquisition of that property.” With respect to one request for documents, the Complainant provided a number of examples for “prospective tenant or user,” including “RIDOT,” “Seven Stars Bakery,” and “the Newport Restaurant Group.” In this instance, while we agree with the Town that term “user” should have been further clarified, the Town did not indicate in its denial that the term “user” was vague and made no attempt to communicate with the Complainant to clarify this term. See Save the Bay v. Rhode Island Department of Environmental Management, PR 20-62 (“[t]his issue could have been avoided if DEM had preemptively notified Complainant what types of documents were considered [responsive to the request]”).  More importantly, as discussed above, the Town makes no argument that other portions of the APRA request were vague or open to multiple interpretations.

Accordingly, we find that the Town violated the APRA by failing to provide responsive documents without citing to the provisions of the APRA as reasons for the denial. See R.I. Gen. Laws § 38-2-7(a).

·         Correspondence of Members of the Town Council

Rhode Island General Laws § 38-2-2(4)(M) exempts from public disclosure “[c]orrespondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.”

Here, the Complainant requested “[a]ll internal or external correspondence, whether electronic, paper, or in any form whatsoever, to or from any Town employee or members of the Town Council relative to the Gateway Project,” as well as Council communications relative to Parts 4 and 5 of the request. In denying the Complainant’s request, the Town stated that “[c]orrespondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacity” are “not deemed to be public documents subject to disclosure.”

The Complainant does not provide any evidence or argument that the subject documents he seeks relative to “members of the Town Council” fall outside of the category of communications exempted by the Town. Accordingly, we find no violation as to the portion of the request that seeks “Town Council” communications.  

·         Failure to Respond to Administrative Appeal

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). Notably, the APRA also requires that “[a]ny denial of the right to inspect or copy records, in whole or in part *** shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial within ten (10) business days of the request and indicating the procedures for appealing the denial.” R.I. Gen. Laws § 38-2-7(a) (emphasis added).

It is uncontested that the Town failed to respond to the Complainant’s request for an administrative appeal. Accordingly, we find that the Town violated the APRA. See R.I. Gen. Laws § 38-2-8(a).

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).

Although injunctive relief may be appropriate in this case, we will allow the Town thirty (30) business days to provide the Complainant with documents responsive to the Complainant’s request. Further, the Town may not assess any charge for the production of these documents. See R.I. Gen. Laws § 38-2-7(b) (“All copying and search and retrieval fees shall be waived if a public body fails to produce requested records in a timely manner; provided, however, that the production of records shall not be deemed untimely if the public body is awaiting receipt of payment for costs properly charged under section 38-2-4.”). 

If the Town contends that any documents responsive to the Complainant’s request fall within any of the APRA exemptions cited in its denial letter (except those under Exemption (M), which we have already determined are properly exempt from disclosure), the Town must state in writing what exemptions apply to any withheld documents. That document must be supplied to the Complainant.  To the extent that portions of the APRA request remain “vague” or are otherwise in need of clarification or guidance, we expect the parties to communicate in good faith to resolve issues. Additionally, should issues arise during the production period, this Office is available to provide guidance provided any discussions involve both parties.

We are concerned by the Town’s failure to comply with the plain requirements of the APRA as discussed herein. Accordingly, also within thirty (30) business days of the issuance of this finding, the Town should submit a supplemental submission addressing whether the violations discussed herein were willful and knowing, or reckless. See R.I. Gen. Laws § 38-2-8. This Office is particularly concerned with the Town’s acknowledgment that “[a]t no point did the Town indicate that there were no documents responsive to Mr. Cicione’s request. Rather, the Town denied the initial request based on its burdensome, vague, and overly broad request.” Given the admission that the Town maintains responsive documents, it is difficult to understand why the Town provided neither any responsive documents, nor an estimate for the production of documents. The Complainant may submit a response on this issue, or other related matters concerning the Town’s production, within five (5) business days of receiving the Town’s submission.

This Office should be copied on all supplemental submissions and exchanges.

Nothing within the APRA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 38-2-8(b). Please be advised that we will keep this file open pending the steps described above, after which, this Office will issue a supplemental finding addressing any open issues.

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

PETER F. NERONHA

ATTORNEY GENERAL

By: /s/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General