VIA EMAIL ONLY

March 27, 2024

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 (“Complainant”), against the Town of Warren (“Town”) is complete. This serves as a supplemental finding to Cicione v. Town of Warren, PR 23-48. The sole issue to be addressed in this supplemental finding is whether the APRA violations committed by the Town of Warren were willful and knowing, or reckless. For the reasons set forth herein, we decline to pursue civil fines for a willful, knowing, or reckless violation.

In this Office’s prior finding, we found that the Town violated the APRA by failing to provide responsive documents without citing to the provisions of the APRA as reasons for its denial of Complainant’s public records request.[1] See R.I. Gen. Laws § 38-2-7(a). We further found that the Town violated the APRA by failing to respond to the Complainant’s request for an administrative appeal of its denial. See R.I. Gen. Laws § 38-2-8(a).

Although we noted that injunctive relief may have been appropriate, we allowed the Town thirty (30) business days to provide the Complainant with documents responsive to his public records request at no charge. We permitted the Town to withhold documents that fell under any APRA exemptions cited in its initial denial letter as long as it submitted a document to the Complainant that explained what exemptions applied to any withheld documents.

We also noted our concern with the Town’s failure to comply with the plain requirements of the APRA. Accordingly, we instructed the Town to submit, within thirty (30) business days, a supplemental submission addressing whether the violations discussed in our finding were willful and knowing, or reckless. See R.I. Gen. Laws § 38-2-8.

On July 17, 2023, the                 Town provided the Complainant with over 3,000 pages of responsive documents. Three days later, the Town provided the Complainant with several additional documents that were omitted from its prior correspondence due to technical issues.

The Town also provided this Office with a supplemental submission in which the Town Solicitor asserted that the Town’s violations of the APRA were “not willful, knowing, or reckless because its actions are not unreasonable given prior Attorney General APRA opinions and federal case law related to unduly burdensome APRA requests.”

The Town cited to federal FOIA caselaw that it claimed stands for the proposition that public agencies are not required to respond to unreasonable public records requests and it is the requester’s responsibility to ensure their request is reasonable. In light of this federal caselaw, the Town argues that it did not willfully, knowingly, or recklessly violate the APRA as it “set out precisely why [the Complainant’s] request was unreasonable” and the Town’s “rationale fit comfortably within the relevant case law on the matter.” The Town additionally argued that the use of the term “pertaining to” in the Complainant’s request indicated the request was overbroad and noted that its denial informed the Complainant that “[y]ou may modify your request for specific documents; the Town will respond to that request in an appropriate fashion.”

Turning to the issue of a lack of an administrative appeal, the Town asserted that the Town’s “appeal procedures provide an avenue to appeal the decision of the Town Clerk by petitioning the Town Clerk for an appeal,” but that in this case the initial APRA denial was made by the Town Solicitor rather than the Town Clerk due to the request not being a “run-of-the-mill APRA request.” The Town noted that the APRA provides that “[a]ny 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.” R.I. Gen. Laws § 38-2-8(a). However, in this case the Town Solicitor made the initial denial and “the Solicitor is not the subordinate of the Town Manager. Consequently, the Town administrator does not have the authority to review the Solicitor’s response.”

The Complainant responded that the Town’s use of an extension when initially responding to his request was a willful violation of the APRA as “the Town was not in good faith trying to … gather responsive documents.” He further pointed to the fact that the Town was able to comply with this Office’s instruction and complete his public records request within thirty days without reaching out to him for any clarification “proves that complying with the subject APRA request was anything but unreasonable or unduly burdensome.” Finally, the Complainant asserted that he had sent his request for an administrative appeal to the Town Manager as directed and argued that “[a] seeker of public records cannot be subject to the government’s ‘hide the ball’ game to deny Complainant’s statutory right to an administrative appeal – especially when the public entity directs exactly where the appeal should go.”

Turning to the question of whether the Town’s actions and inactions constituted a knowing and willful or reckless violation of the APRA, this determination is a closer call. In arguing that its actions were consistent with federal caselaw and that public agencies are not required to respond to unreasonable public records requests the Town mainly relies on Assassination Archives & Research Center, Inc. v. CIA, 720 F.Supp. 217, 219 (D.D.C. 1989). But the Town misapprehends the import of that case. This Office’s findings have cited to that case for the proposition that it is the requester’s responsibility to frame a request that sufficiently identifies the records being sought. The case does not stand for the proposition that public bodies can deny requests just because responding would be burdensome or time-consuming. [2]

This Office has been clear, in findings published prior to the Town’s denial in this case, that “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. The Town fails to identify any provision in the APRA that permits a public body to deny a request for being overbroad or unduly burdensome.   

Moreover, as noted in our initial finding, the Town has failed to demonstrate that the request in this instance was too vague or confusing to be understood, particularly as the Town’s response to the Complaint provides an interpretation for request Nos. 1-3, without any indication that any of the first three requests were vaguely worded.  And as the Complainant notes, the fact that the Town provided the records Complainant was seeking in response to this Office’s finding further demonstrates that the Town was capable of understanding what records were being sought.

That said, this Office does not find reason to doubt the Town’s assertion that its denial of the Complainant’s request was based on a misinterpretation of the law rather than a knowing and willful or reckless violation. Our conclusion is supported by the fact that the Town does not have any recent, similar violations. However, it is imperative that the Town understand that it cannot simply refuse to substantively engage with a request because responding will require significant time and effort.

Second, the Town asserts that its failure to provide the Complainant with a requested administrative appeal was not a knowing and willful or reckless violation of the APRA because the Town Solicitor responded to the Complainant’s request rather than the Town Clerk, as is usually the case according to the Town’s procedures, and “the Solicitor is not the subordinate of the Town Manager. Consequently, the Town administrator does not have the authority to review the Solicitor’s response.” The Town’s excuse for failing to provide the Complainant with an administrative appeal despite its response to his request explicitly informing him that he was entitled to one and him requesting one in the manner described stresses credulity. The process for an administrative appeal should not be a trap for the unwary, especially when the Complainant faithfully followed the process laid out in the Town’s own response letter. Additionally, we have previously recognized that a public body cannot avoid the APRA’s administrative appeal provisions by professing not to have a chief administrative officer. See Finnegan v. Town of Scituate, PR 20-41. Regardless of who the Town delegated to respond to the request, the Town’s chief administrative officer should have responded to an appeal.  That said, this Office does not find reason to doubt the Town’s assertion that its failure to provide an administrative appeal response was not a knowing and willful or reckless violation. Our conclusion is supported by the fact that the Town does not have any recent, similar violations. Instead, it appears that the unique posture of the initial request – that it was denied by the Town Solicitor rather than the Town Clerk – created confusion for the Town as to the need to give the Complainant an administrative appeal.

Although this is a close case, we do not believe it would be in the public interest in these circumstances to pursue civil fines against the Town, especially keeping in mind that the Town’s residents would be the ones impacted by such fines. But it is imperative that the Town learn from this incident and be more mindful about adhering to the APRA’s requirements going forward. This finding serves as notice to the Town that its actions and inactions violated the APRA and may serve as evidence in a future similar situation of a willful and knowing, or reckless violation.

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). We are closing our files as of the date of this correspondence.

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

PETER F. NERONHA

ATTORNEY GENERAL

By: /s/ Patrick Reynolds

Patrick Reynolds

Special Assistant Attorney General