Background and Arguments

·         Mr. Landekic’s request

Mr. Landekic submitted a public records request to RITBA seeking “a copy of the most recent report on the inspection of the Mt. Hope Bridge that was performed in October-November 2024.”

The RITBA responded to Mr. Landekic’s request by informing him that it had not yet received the report and therefore did not possess any responsive records. However, once it received the report it followed up with him and informed him that the responsive “report contains sensitive security information (SSI) and, therefore, must first be reviewed and potentially redacted by the Transportation Security Administration (TSA) pursuant to 49 C.F.R. § 1520.” Therefore, it asserted that the report is exempt from disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(E) and (S). It stated that it “has sent this record to the TSA for its review, and is awaiting advice from the TSA regarding whether some portion or all of the document sought may be released.”

The Complainant then submitted the instant Complaint to this Office. He asserts that the RITBA is “obligated” to disclose the responsive report. He asserts that the “same standards and [privacy] balancing test” applied by this Office in Gregg v. Office of the Governor, PR 23-50 should be applied here. He argues that “[w]hile there may be some security interest in the results of the inspection report, it is outweighed by a very substantial public interest.” He asserts that there is a public interest in disclosure of the report as the report “has the potential to allow the public to better understand how Rhode Island’s government is working, or not, and how taxpayer money is being spent, as well as informing on a matter critical to the public’s safety.”

The RITBA submitted a substantive Response to the Complaint through its legal counsel Patrick J. McBurney, Esq. The RITBA asserts that “[q]uite simply, Complainant has not demonstrated that the claimed exemptions are not applicable, and his reliance on the ‘balancing test’ is misplaced.” The RITBA asserts that by invoking R.I. Gen. Laws § 38-2-2(4)(E) and (S), it was “acting in conformance with federal rules and regulations, which require RITBA to maintain SSI information as confidential until TSA has had an opportunity to review and redact the document.” (Citing 49 C.F.R. § 1520). The RITBA provided a section of an FAQ page from the TSA’s website concerning SSI. The FAQ instructed that when a government entity receives a request for SSI that “[r]elease of SSI is prohibited and a violation of the SSI regulation” and “prior to releasing records which may contain SSI to persons who are not authorized to access SSI under the SSI Federal Regulation, the SSI language must be removed/redacted by the TSA SSI Program office.” The FAQ further instructs that “covered persons” may not redact their own SSI and that “49 C.F.R. § 1520.9(a)(3), requires covered persons to refer requests by other persons for SSI to TSA, or the applicable DHS component or agency.”

Regarding the Complainant’s argument that the balancing test should be applied, the RITBA argues that the balancing test “does not apply to the exemptions claims by RITBA” and rather the balancing test “is used when the claimed exemption is made pursuant to § 38-2-2(4)(A)(I)(b), to determine whether the disclosure would constitute a clearly unwarranted invasion of personal privacy.”

We acknowledge the Complainant’s rebuttal.

·         Attorney Skwirz’s request

The Complainant submitted a public records request to RITBA seeking the “[m]ost current report in possession of RITBA regarding the condition and structural viability of the Mount Hope Bridge.”

The RITBA denied the Complainant’s request. It informed him that the responsive report “contains sensitive security information (SSI) and, therefore, must first be reviewed and potentially redacted by the Transportation Security Administration (TSA) pursuant to 49 C.F.R. § 1520.” Therefore, it asserted that the report is exempt from disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(E) and (S). It stated that it “has sent this record to the TSA for its review, and if TSA advises us that some portion or all of the document sought may be released to you, we will produce it to you.”

The Complainant replied to the RITBA “respectfully request[ing] that the RITBA work with the TSA to redact any SSI from the most recent Mount Hope Bridge Inspection report.” He asserted that “[w]hile SSI may not be discoverable in civil litigation [(]RIGL 38-2-2(4)(E)) and confidential under federal law (RIGL 38-2-(4)(S)), information is discoverable and not confidential if the SSI may be redacted.” He asserted that the APRA “allows a 20-business day extension if the RITBA requires more time to work with the TSA to redact this report” and stated that “[i]f the APRA extension does not provide adequate time in this case, please let me know, and I would be willing to discuss a further extension to allow the redaction to take place.”

The Complaint then submitted the instant Complaint to this Office. He asserts that the RITBA “violated the APRA by withholding the most recent Mount Hope Bridge inspection report in its entirety simply because the report potentially contains SSI that potentially requires redaction.” He avers that “[i]t is the obligation of the RITBA to have the report reviewed, redact as appropriate, and, pursuant to RIGL 38-2-3(b), produce ‘[a]ny reasonably segregable portion’ of the report following redaction.”

The RITBA submitted a substantive Response to the instant Complaint through its legal counsel Patrick J. McBurney, Esq. The RITBA asserts that “[q]uite simply, Complainant has not demonstrated that the claimed exemptions are not applicable, and his suggestion that RITBA may redact the report itself is violative of federal law.” The RITBA asserts that by invoking R.I. Gen. Laws § 38-2-2(4)(E) and (S), it was “acting in conformance with federal rules and regulations, which require RITBA to maintain SSI information as confidential until TSA has had an opportunity to review and redact the document.” (Citing 49 C.F.R. § 1520). The RITBA further cited the same information regarding the TSA and SSI redaction as included in its substantive Response to Mr. Landekic’s complaint.

The Complainant submitted a rebuttal to the RITBA’s Response. He asserts that he does not argue that RITBA must self-redact the report, but instead he is arguing that the “RITBA violated the APRA by not attempting to have SSI redacted (by the TSA or otherwise) within the timeframe established by the APRA, but instead denied the request outright.” He asserts that the RITBA “inappropriate[ly]” denied his request without extending their deadline to respond as authorized by the APRA. He asserts that “the RITBA should have extended the APRA deadline and attempted to have the TSA redact any SSI in time to produce the document in the response to the request.” He argues that “[i]f the RITBA’s decision were to stand, then it could continue to deny access to this document under the APRA in its entirety, even after the TSA reviews and redacts any SSI.”

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.

·         The RITBA’s denial without asserting an extension

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. A public body “may have up to an additional twenty (20) business days to comply with the request if it can demonstrate that the voluminous nature of the request, the number of requests for records pending, or the difficulty in searching for and retrieving or copying the requested records, is such that additional time is necessary to avoid imposing an undue burden on the public body.” R.I. Gen. Laws § 38-2-3(e).

Attorney Skwirz alleges that the RITBA violated the APRA because it denied his APRA request without asserting an extension. He argues that if the RITBA has asserted an extension, rather than denying his request within ten business days, that this may have given the TSA time to review and redact SSI from the responsive report. However, the plain language of the APRA is clear that a public body “may have up to an additional twenty (20) business days to comply with the request.” Id. (emphasis added). This language is clearly permissive rather than obligatory. Attorney Skwirz points to nowhere in the text of the APRA where it places an obligation on a public body to assert an extension in any circumstances. Additionally, we have previously recognized that public bodies are required to respond to APRA requests based on the records maintained at the time when the request was made, and it is undisputed RIBTA did not maintain a copy of the report reflecting TSA’s review and potential redactions at the time when the request was made. Cf. R.I. Gen. Laws § 38-2-3(h) (public bodies are not required to provide “data not maintained by the public body in the form requested at the time the request to inspect the public records was made”); Ayrassian v. Rhode Island Judiciary, PR 24-46 (finding the Judiciary did not violate the APRA when it did not provide the requester with survey results because the “undisputed evidence presented to this Office shows that no such results existed as of the date of the APRA request because the survey was still in progress”). We have also not been presented with any evidence or authority that RIBTA had the ability to force TSA to complete its review and potential redaction under any specific timeframe. Accordingly, we do not find that the RITBA violated the APRA when it did not assert an extension in response to Attorney Skwirz’s request. The parties have not indicated whether the TSA review and potential redactions have been completed at this time, but Attorney Skwirz is of course free to submit another APRA request in the future.

·         The RITBA’s withholding under Exemption (S)

The APRA provides that all records maintained by public bodies are subject to public disclosure unless the document falls within one of the twenty-eight (28) enumerated exemptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(BB). Among other exemptions, the APRA permits nondisclosure of “[r]ecords, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law or rule of court.” R.I. Gen. Laws § 38-2-2(4)(S) (“Exemption (S)”).

The RITBA avers that the responsive report cannot be publicly disclosed until it has been reviewed by the TSA so that any SSI can be redacted from the report pursuant to 49 C.F.R. § 1520. The RITBA provided citations to regulatory authority and information publicly posted by the TSA that supports this argument and outlines this process and RITBA’s legal obligations as a holder of documents that potentially contain SSI. This evidence shows that even though at least parts of the report may eventually be deemed public, RITBA is required to not disclose the report until TSA has completed its review process. Attorney Skwirz makes clear in his rebuttal that he does not challenge the RITBA’s assertion that the responsive report may contain SSI or its representation of the process for removing such SSI by TSA. Instead, his rebuttal focuses on the RITBA’s failure to assert an extension before denying his request which is discussed supra.

Likewise, Mr. Landekic acknowledges “there may be some security interest in the results of the inspection report,” however he argues that the balancing applied by this Office in Gregg v. Office of the Governor, PR 23-50 supports disclosure of the report because of the “very substantial public interest” in disclosure. But his reliance on Gregg, PR 23-50 is misplaced as that finding pertained to the application of Exemption (A)(I)(b) not Exemption (S). As this Office has previously noted, “while some exemptions, such as Exemption (A)(I)(B) and Exemption (D)(c) explicitly contemplate a balancing test of the public versus privacy interests, Exemptions (E) and (S) do not contemplate such a balancing test … [t]herefore, a public body is not required to take into account the public interest when withholding a record pursuant to Exemptions (E) or (S).” Cronin v. Rhode Island Department of Transportation, PR 24-31. Exemption (S) permits non-disclosure of records “required to be kept confidential by federal law or regulation” without taking into account whether there is a public interest in such disclosure.

Further, where, as here, the record is exempt under Exemption (S), RITBA did not have the discretion to decide whether to withhold the responsive report or not given that disclosure of the report was prohibited by federal regulations. See Hussey v. Community College of Rhode Island, PR 25-46 (“there are some instances in which a public body should withhold or redact records and/or is allowed no discretion to produce certain requested records”); Pahigian v. RIDOT, PR 23-55 (“we do note that Exemption (S) applies to records that are required to be kept confidential by law and that a public body does not have discretion to produce.”).

Conclusion

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/ Patrick Reynolds

Patrick Reynolds

Special Assistant Attorney General