VIA EMAIL ONLY

December 5, 2023

Natalia Friedlander, Esquire

RI Center for Justice

Nicole DiLibero, Esquire

Dear Attorney Friedlander and Attorney DiLibero:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Attorney Jonathan Cohen (“Complainant”) against the Rhode Island Department of Corrections (“RIDOC”). For the reasons set forth herein, we find that the RIDOC violated the APRA.

“Documentation of unannounced rounds conducted pursuant to 9.49-5(IV)(C)(5) ….”[1]

In response to the Complainant’s request, RIDOC provided the Complainant with the “PREA [Prison Rape Elimination Act] Unannounced Round Log” from September 2021 to January 2022.  However, RIDOC redacted the times of the rounds, portions of the summaries of the rounds, and information related to video monitor checks. RIDOC failed to cite any exemptions or provide any explanation for its redactions in its response to the Complainant’s APRA request.

In response to this Complaint, RIDOC acknowledged that it redacted information from the responsive PREA unannounced round log, and it “inadvertently and without intention omitted” an explanation for its redactions in its response to the Complainant. Nonetheless, RIDOC asserted that the redactions were made pursuant to the exemptions for records maintained by law enforcement agencies for criminal law enforcement where disclosure would reasonably be expected to interfere with investigations of criminal activity, would disclose techniques and procedures, or guidelines of law enforcement investigations, or would be expected to endanger the life or physical safety of any individual, R.I. Gen. Laws §§ 38-2-2(4)(D)(a),(e),(f), and the exemption for security plans of law enforcement agencies pursuant to R.I. Gen. Laws § 38-2-2(4)(F). And it asserted that good cause exists for its reasons for redaction to not be waived “due to the sensitive nature of the information withheld.”

The Complainant submitted a rebuttal wherein it argued that good cause does not exist as past opinions of this Office have only found good cause to exist when the information at issue implicated third-party privacy interests or was required by law to be kept confidential. Here, the Complainant argues that RIDOC only made a general reference to the sensitive nature of the information withheld, but cited to no opinion supporting the proposition that the sensitivity of the information constitutes good cause.

Under the APRA all records maintained by public bodies are subject to public disclosure unless the document falls within one of the twenty-seven enumerated exceptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(AA). The APRA further 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” and “[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) (emphasis added).

Here, it is undisputed that RIDOC failed to provide the exemptions and legal basis for its redactions in its response to the Complainant’s APRA request. RIDOC acknowledged that such information was “inadvertently and without intention omitted” from its response to the Complainant, but it asks this Office to consider the “sensitive nature of the information withheld” as good cause to deem RIDOC’s basis for redaction not waived. The Complainant asserts that RIDOC has not provided good cause for its failure to timely provide the basis for its denial.

This Office has previously found good cause to exist when the information withheld implicates third-party privacy interests or is required by law to be kept confidential. See, e.g., Grenier v. Town of Hopkinton, PR 21-13; August v. Rhode Island Public Transit Authority, PR 20-42; Owens v. Department of Health, PR 20-39. But the Legislature did not create an exhaustive list of what constitutes “good cause” and this Office has not expressed that “good cause” is limited to matters involving third-party privacy interests or confidential information. See R.I. Gen. Laws § 38-2-7(a).  The Legislature’s intention to protect sensitive information, particularly in the context of criminal investigations and law enforcement security plans, is made clear by the exemptions provided for at R.I. Gen. Laws § 38-2-2(4)(D) and R.I. Gen. Laws § 38-2-2(4)(F). This Office finds that safety and security concerns related to the potential disclosure of law enforcement and security information can potentially provide good cause to not find exemptions waived despite a public agency’s failure to timely provide the basis for its denial. Importantly, there are no bright line rules for when good cause may be found, but rather this is an issue that should be assessed on a case-by-case basis. Here, RIDOC asserts that the redacted information implicates the safety and security of its prison facilities, which include its High Security facility.  We find there is an important public interest in safety and security within a prison. See Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (recognizing that prison security is a public interest). Not finding waiver in this case promotes the public interest and the intent of state law and policy as reflected in the APRA. Accordingly, we do not find waiver and will analyze RIDOC’s redactions under the exemptions cited by RIDOC in its response to the Complaint.

RIDOC explained that the PREA unannounced rounds are part of its efforts to detect and investigate crime related to sexual assault in prison. In response to the Complaint’s public records request, RIDOC provided the Complainant with a PREA unannounced round log that included redactions of what RIDOC described as “the times the unannounced rounds began and ended, the summary of the unannounced round, and the video monitor check.” This Office’s in camera review of the documents confirms RIDOC’s description of the redacted information and finds that RIDOC’s redactions were targeted to only conceal information pertinent to law enforcement and security interests. For instance, RIDOC did not redact the entire summaries of the rounds, but only portions of the summary in instances where the redacted information could reasonably be deemed to implicate safety and security interests. The types of information redacted — the times the unannounced rounds took place, the specific areas inspected and path taken during the rounds, and certain observations that could implicate safety considerations (such as what lights or cameras are not functioning) — have apparent safety and security implications. RIDOC asserts, “disclosure of this information would undoubtedly endanger the security of the Department by disclosing the law enforcement methods of the agency and in disclosing which cameras in the facility are not working properly would further endanger staff and inmates by disclosing potential blind spots.” We find credible RIDOC’s representation that the disclosure of the redacted information could infringe on facility safety and security, which in turn could risk harm to inmates and staff alike.

The public release of such information, which is related to law enforcement and the detection and investigation of potential sexual assaults in prison, could “reasonably be expected to interfere with investigations of criminal activity,” “would disclose techniques and procedures for law enforcement investigations,” and could reasonably be expected to endanger the life or physical safety of” individuals. R.I. Gen. Laws §§ 38-2-2(4)(D)(a), (e), (f). Additionally, certain redacted information, such as that related to the functioning of security cameras, can be considered to constitute part of the security plan of RIDOC, a law enforcement agency, and the disclosure of information regarding the security plan of RIDOC would endanger the public security.  R.I. Gen. Laws §§ 38-2-2(4)(F). In reaching these conclusions, we are mindful that both the Rhode Island and United States Supreme Courts have granted prison administrators great deference in decisions regarding institutional security. See, e.g., Laurie v. Senecal, 666 A.2d 806, 809 (R.I. 1995) (“Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” (quoting Bell v. Wolfish, 441 U.S. 520 (1979))). 

This Office recognizes the Complainant’s assertion that the redacted information related to RIDOC’s techniques and procedures for PREA rounds is already publicly available in RIDOC’s published PREA policy. However, this Office’s review of RIDOC’s PREA policy and in camera review of the redacted information reveals that the redacted information contains additional information about techniques and procedures that is not contained in the publicly available PREA policy, such as the specific time and route of PREA rounds completed.

Accordingly, we conclude that the information redacted by RIDOC in its APRA response was exempt from disclosure under R.I. Gen. Laws § 38-2-2(4)(D) and R.I. Gen. Laws § 38-2-2(4)(F).  Therefore, although RIDOC violated the APRA by not providing a basis for its denial in its initial response to the request, we conclude that the redactions were permissible under the APRA.

Upon a finding of an APRA violation, the Attorney General may file a complaint in Superior Court on behalf of the Complainants, requesting “injunctive or declaratory relief.” See R.I. Gen. Laws § 38-2-8(b). Additionally, 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 warranted here because, for the reasons explained above, we find that the redactions made by RIDOC were permissible. We also do not find RIDOC’s APRA violation to be willful and knowing, or reckless, nor are we aware of any recent, similar violations by RIDOC. Nevertheless, this finding serves as notice to RIDOC that its conduct violated the APRA and may serve as evidence in a future similar situation of a willful and knowing, or alternatively reckless, violation.

Although the Attorney General will not file suit in this matter, 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 be closing our file as of the date of this finding.

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

Sincerely,

PETER F. NERONHA

ATTORNEY GENERAL

By: /s/ Patrick Reynolds

Patrick Reynolds

Special Assistant Attorney General