| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
| | |
| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
December 4, 2023
PR 23-57
yaflman2@gmail.com
Mr. Michael Ursillo, Esquire
Assistant Solicitor, City of Warwick
Re: Anonymous v. City of Warwick
Dear Sir/Madam and Attorney Ursillo:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Anonymous (“Complainant”) against the City of Warwick (the “City”). For the reasons set forth herein, we find that the City did not violate the APRA.
On November 17, 2021, Complainant submitted an APRA request to the City seeking “[e]mails/communication to/from Susan Ayrassian between 4/1/2021 and 5/30/2021 containing any of the following: Providence or PPS or PSD or PVD” and “[e]mails/communication to/from Aaron O’Brien Mackisey between 4/1/2021 and 5/30/2021 containing any of the following: Providence or PPS or PSD or PVD.”[1]
On December 9, 2021, the City provided Complainant with responsive records in the form of partially redacted emails but indicated that additional records had been withheld as exempt from disclosure under the APRA. First, under § 38-2-2(4)(M) (“Exemption (M)”), the City withheld communications with an elected official in an official capacity. Second, under § 38-2-2(4)(A)(I)(a) (“Exemption (A)(I)(a)”), the City withheld communications between its legal counsel and City officials and employees. Third, under § 38-2-2(4)(K) (“Exemption (K)”), the City withheld a preliminary draft report attached to an email produced to Complainant.
On December 10, 2021, Complainant petitioned the City’s chief administrative officer for a review of those withholding determinations. See R.I. Gen. Laws § 38-2-8(a). In addition to asking that the documents withheld be reviewed to determine if they were properly exempt, Complainant argued that the City could not invoke Exemption (K) because that exemption is only available to institutions of higher education. As to Exemption (M), Complainant questioned whether emails between an elected official and a City employee would qualify for that exemption, or whether the second party would need to be one of the elected official’s constituents. Complainant also argued that the “to/from/date” portions of the emails needed to be produced even if the emails’ content was exempt and requested redacted copies of all communications withheld under Exemption (M) so that he could see how many emails were being withheld.
On December 14, 2021, the City responded to Complainant’s appeal and maintained that the records had been properly withheld. The City asserted that Exemption (K) applied because that exemption is not limited to institutions of higher education and that Exemption (M) applied because that exemption includes the correspondence of elected officials “in their official capacities.” See R.I. Gen. Laws § 38-2-2(4)(M). The City did provide Complainant with what it termed a “privilege log” that listed the previously withheld dates and times of the responsive emails. The privilege log also noted whether the emails were between “City staff,” an “elected official,” or “legal counsel,” but did not specifically identify those individuals.
Complainant then filed the present Complaint with this Office on December 17, 2021. In that Complaint, Complainant renews his or her arguments with respect to Exemption (K) and Exemption (M) but does not challenge the applicability of Exemption (A)(I)(a). Acknowledging that the City provided the previously withheld dates of the emails, Complaint argues that the “to/from” information must be provided even if the content of the email is exempt. Complainant also continues to question whether emails between an elected official and a City employee are exempt under Exemption M or if the City employee must be a constituent in the elected official’s district. Complainant does not appear to challenge any of the redactions to the emails that the City did produce.
On January 13, 2022, the City responded to the Complaint. The City asserts that the APRA does not require the disclosure of the “to/from” information Complainant seeks because those emails are official communications of elected officials to which Exemption (M) applies. The City further argues that because Complainant “seeks particular communications on a particular topic involving particular parties on particular dates,” providing the names of the parties involved “would undermine the purpose” of Exemption (M). [2] With respect to Exemption (K), the City argues that that exemption is not limited to research at state institutions of higher education. Along with its response, the City provided this Office with unredacted copies of the records in question for our in camera review.
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. Under the APRA, records maintained by public bodies are subject to public disclosure unless a statutory exemption applies. See R.I. Gen. Laws § 38-2-8.
Complainant’s sole argument with respect to the report withheld by the City under Exemption (K) is that that exemption cannot apply because the City is not an institution of higher education. That argument is foreclosed by the unambiguous text of Exemption (K), which encompasses:
“Preliminary drafts, notes, impressions, memoranda, working papers, and work products, including those involving research at state institutions of higher education on commercial, scientific, artistic, technical, or scholarly issues, whether in electronic or other format; provided, however, any documents submitted at a public meeting of a public body shall be deemed public.” R.I. Gen. Laws § 38-2-2(4)(K).
Thus, the category of exempt documents broadly covers “[p]reliminary drafts, notes, impressions, memoranda, working papers, and work products,” and the specific inclusion of documents “involving research at state institutions of higher education on commercial, scientific, artistic, technical, or scholarly issues” does not limit Exemption (K)’s scope. R.I. Gen. Laws § 38-2-2(4)(K); see Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”). This plain reading of the statutory language is consistent with how our Office has applied Exemption (K). See, e.g., Sherman v. Office of the Governor, PR 23-07 (finding that Exemption (K) applied to documents withheld by the Office of the Governor).
Turning to Exemption (M), Complainant argues that that exemption applies only to communications between elected officials and their constituents and does not apply to communications between elected officials and City employees. However, those arguments are also foreclosed by the plain language of the APRA.
By its terms, Exemption (M) exempts from 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.” R.I. Gen. Laws § 38-2-2(4)(M) (emphasis added); see also R.I. Gen. Laws § 38-2-2(4) (defining “public records” as “including electronic mail messages, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities”). Our Office has previously recognized that although “one purpose of the exemption is ‘to allow citizens to communicate with ‘elected officials’ without fear of their correspondence or concern being made public[,]’” Law v. Town of Smithfield, PR 19-26, Exemption (M) also “broadly applies to ‘correspondence’ of elected officials ‘in their official capacity.’” Casazza v. Smithfield Public Schools, PR 23-26 (quoting R.I. Gen. Laws § 38-2-2(4)(M)).
Having examined the unredacted emails provided by the City for our in camera review, our Office concurs with the City’s designation of those emails as correspondence of or to elected officials in their official capacities. Each email is correspondence between an elected official and one or more City employees that relates to official City business.
Finally, Complainant argues that even if the content of the emails falls under Exemption (M), the City still must disclose the identity of the parties to that correspondence. This argument is not supported by the text of the APRA, which provides for public disclosure of “records” and similarly exempts specific categories of “records” from disclosure. R.I. Gen. Laws § 38-2-2(4). In Law v. Town of Smithfield, our Office rejected the argument that Exemption (M) only permits the redaction of “the identity of the individual communicating” with an elected official as incompatible “with the plain language of the exemption, which exempts ‘[c]orrespondence of or to elected officials in their official capacities.’” Law, PR 19-26 (quoting R.I. Gen. Laws § 38-2-2(4)(M)) (emphasis added).
By their nature, the entire documents are “correspondence of or to elected officials in their official capacities,” and are therefore exempt. Although our Office has often reiterated that the APRA creates “a floor and not a ceiling” and that “a public body may, in its discretion, provide access to an exempt document in favor of government transparency and the spirit of the APRA[,]” Law, PR 19-26, we have also recognized that “failing to provide access to properly exempted documents does not violate the APRA.” Providence Journal v. Executive Office of Health and Human Services, PR 20-01. And the City’s decision to provide Complainant with a privilege log that listed the dates and times of the withheld emails and noted whether the emails were between “City staff,” an “elected official,” or “legal counsel,” did not further obligate the City to identify those individuals. Cf. Zurier v. Office of the General Treasurer, PR 23-30 (finding that public body was not required to produce a privilege log to “satisfy its obligation that it provide ‘the specific reasons for the denial.’”) (quoting R.I. Gen. Laws § 38-2-7(a)).[3]
As a result, we conclude that the City did not violate the APRA.
Although this Office has found no violation, 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
[1] Complainant also submitted a contemporaneous APRA request to the Warwick Police Department; that request is not at issue in the present Complaint.
[2] In its response to this Office, the City continued to assert that many of the emails withheld pursuant to Exemption (M) also fell within the scope of Exemption (A)(I)(a) as relating to a client/attorney relationship. Because we find that Exemption (M) applies to the emails in question, we do not find it necessary to analyze whether Exemption (A)(I)(a) also applies; to the extent that the City relied exclusively on Exemption (A)(I)(a) for certain records, we need not analyze that issue because Complainant did not challenge the City’s assertion of that exemption. See East Bay Media Group v. Barrington School Department, PR 20-61 (“Consistent with this Office’s acknowledgement letters to the parties and this Office’s precedent, this Office declines to review issues not raised in the Complaint[.]”).
[3] We note that it appears that the City did not comply with the APRA’s requirement that “[i]f 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). Once again, however, “[c]onsistent with this Office’s acknowledgement letters to the parties and this Office’s precedent, this Office declines to review issues not raised in the Complaint[.]” East Bay Media Group, PR 20-61. Moreover, we have already determined that the records in question were exempt under Exemption (M) in their entirety. “Nonetheless, we take this opportunity to remind public bodies that 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.’” Law v. Town of Smithfield, 19-26 (quoting R.I. Gen. Laws § 38-2-3(b)).