Background and Arguments

The Complainant submitted a public records request to the Department seeking “an incident report and/or body-worn camera video from Oct. 19 relating to [the Department’s] response to an incident at Bally’s Twin River involving off-duty Providence Police officer, Gary Slater.”

The Department provided the Complainant with a summons report with redactions. The redacted summons report identified Gary Slater as the individual of interest and stated that he was placed into “protective custody to remove him from the property and prevent further negative attention to himself or his agency.” The Department denied the request as to the body-worn camera footage in its entirety. The Department informed the Complainant that it redacted the summons report and withheld the other responsive records pursuant to R.I. Gen. Laws § 38-2-2(4)(D)(b). It explained that “[t]his incident involves an off-duty law enforcement officer, and the matter remains under investigation by his employing agency.” Thus, it asserted that “[p]ublic release of additional materials at this time could reasonably be expected to deprive the involved officer of the right to a fair and impartial adjudication, including potential proceedings under the Rhode Island Law Enforcement Officers’ Bill of Rights.” It informed the Complainant that “disclosure is being withheld pending the conclusion of the related investigative and adjudicative process.”

The Complainant then submitted the instant Complaint to this Office. The Complainant alleges that the Department’s partial denial was improper “because it is a misapplication of the criminal investigative exemption.” She asserts that R.I. Gen. Laws § 38-2-2(4)(D)(b) “is not a blanket shield for all investigative records” and that the Department “failed to explain how disclosure of these records would deprive anyone of a fair proceeding and does not identify what information in the records would create harm.” She further asserts that “the public has a right to know what the incident is, which was subsequently put under administrative review by the Office of Internal Affairs at the Providence Police Department.”

Regarding the withheld body-worn camera footage, the Complainant asserts that the statewide body-worn camera footage policy, 110-RICR-10-00-2, states that such footage is subject to the APRA and should be redacted before public release. She implies that the Department failed to follow this policy by not redacting and releasing the responsive footage. She further takes issue with the Department’s citation to potential proceedings under the Rhode Island Law Enforcement Officer’s Bill of Rights. She asserts that no hearing under the Law Enforcement Officers Due Process Accountability and Transparency Act has been publicly announced. She additionally takes issue with the Department’s citation to the ongoing investigation by the Providence Police Department as “an ongoing investigation alone does not justify withholding records under APRA unless the agency can demonstrate specific prejudice.”

The Department submitted a substantive Response to the Complaint through Lincoln Town Solicitor Anothony DeSisto, Esq. The Department’s Response centers around its argument that the instant Complaint is “not yet ripe for review” by this Office because the Complainant did not file an administrative appeal of the Department’s partial denial. The Department acknowledges that this Office “has previously taken the position that such an argument is a ‘nonstarter as there is no requirement that Complainants petition the public body’s chief administrative officer prior to filing an APRA complaint, and therefore this Office has jurisdiction over the matter.” (Quoting The Providence Journal v. Rhode Island Department of Transportation, PR 22-48). However, it requests this Office to reconsider its position. It notes that subsection (b) of R.I. Gen. Laws § 38-2-8 instructs that “[i]f the custodian of the records or the chief administrative officer determines that the record is not subject to public inspection, the person or entity seeking disclosure may file a complaint with the attorney general.” It asserts that:

The first clause of Section (b) is a conditional subordinate clause. Or, in other words, the first clause is the precondition that must be satisfied in order for the second clause to be invoked. Therefore, the right to file a complaint with the attorney general is only triggered if the chief administrative officer determines that the record is not subject to public inspection. And, to get to a denial by the administrative officer, the person must first exercise their statutory right of appeal, as outlined in Section (a).

The Town agrees with the Attorney General’s position in The Providence Journal v. Rhode Island Department of Transportation that use of “may” in Section (a) does not require a person to file a complaint with the administrative officer of a public body after their APRA request has been denied. PR 22-48 (citing Downey v. Carcieri, 996 A.2d 1144, 1151 (R.I. 2010) (“It is an axiomatic principle of statutory construction that the use of the term “may” denotes a permissive, rather than an imperative condition”)). Even though a person is not required to appeal to an administrative officer, if they wish to file an appeal with the Office of Attorney General, then the person is first required to file an appeal with the relevant administrative officer because a denial at the administrative level is a necessary prerequisite under Section (b).

(Emphasis in original).

The Department asserts that because the Complainant did not submit an administrative appeal, the “Town has not had the opportunity to thoroughly review and assess … privacy concerns” implicated by the responsive records.

The Department further asserts that there are privacy concerns inherent in video footage and expresses that it is “concerned about the privacy interests related to the police report given that the report indicates that Mr. Slater was not arrested nor charged with a crime, but rather taken into protective custody.”

We acknowledge the Complainant’s Rebuttal.

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.

·         Lack of an administrative appeal

The APRA instructs that:

(a) 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.

(b) If the custodian of the records or the chief administrative officer determines that the record is not subject to public inspection, the person or entity seeking disclosure may file a complaint with the attorney general.

As the Department acknowledges, this Office has consistently found that the argument that submitting an administrative appeal is a prerequisite for being able to file an APRA complaint with this Office is a “nonstarter.” See The Providence Journal, PR 22-48. The Department agrees with this Office’s interpretation of R.I. Gen. Laws § 38-2-8(a) that the “use of ‘may’ in Section (a) does not require a person to file a complaint with the administrative officer in a public body after their APRA request has been denied.” See id.; Downey v. Carcieri, 996 A.2d 1144, 1151 (R.I. 2010) (“It is an axiomatic principle of statutory construction that the use of the term ‘may’ denotes a permissive, rather than an imperative condition.”). However, where the Department’s interpretation differs from this Office’s is with R.I. Gen. Laws § 38-2-8(b). The Department asserts that “[t]he first clause of Section (b) is a conditional subordinate clause … in other words, the first clause is the precondition that must be satisfied in order for the second clause of be invoked.” It concludes “[t]herefore, the right to file a complaint with the attorney general is only triggered if the chief administrative officer determines that the record is not subject to public inspection.” (Emphasis in original). Accordingly, “[e]ven though a person is not required to appeal to an administrative officer, if they wish to file an appeal with the Office of Attorney General, then the person is first required to file an appeal with the relevant administrative officer because a denial at the administrative level is a necessary prerequisite under Section (b).”

The Department’s interpretation, however, is flawed because it ignores that even if Section (b) is a conditional subordinate clause, the Complainant has met the requirements of that clause. Section (b) instructs that “[i]f the custodian of the records or the chief administrative officer determines that the record is not subject to public inspection, the person or entity seeking disclosure may file a complaint with the attorney general.” (Emphasis added). Here, the custodian of the records (the Department’s APRA designee) partially denied the Complainant’s public records request. She subsequently filed a complaint with this Office seeking review of that partial denial. The statute is clear that an appeal can be filed if “the custodian of the records or the chief administrative officer” (emphasis added) issues a denial. There is no requirement that both must occur before a requester may file a complaint with this Office. The language at issue in Section (b) is clearly disjunctive rather than conjunctive. Accordingly, this matter is ripe for this Office’s review. Therefore, we proceed to consider the merits.

·         Withholding under Exemption (D)(b)

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 records maintained by a law enforcement agency that “[w]ould deprive a person of a right to a fair trial or an impartial adjudication.” R.I. Gen. Laws § 38-2-2(4)(D)(b) (“Exemption (D)(b)”).

The Department asserted in its denial that it redacted and withheld responsive records pursuant to Exemption (D)(b) because the underlying incident “involves an off-duty law enforcement officer, and the matter remains under investigation by his employing agency.” Thus, it asserted that “[p]ublic release of additional materials at this time could reasonably be expected to deprive the involved officer of the right to a fair and impartial adjudication, including potential proceedings under the Rhode Island Law Enforcement Officers’ Bill of Rights.”

The Complainant asserts in her Complaint that no such hearing related to the Law Enforcement Officers’ Bill of Rights or Law Enforcement Officers Due Process Accountability and

Transparency Act has been announced. She further asserts that even if such a hearing were announced, the Department “still has not disclosed how disclosing the information would interfere with the proceedings.” She also asserts that to the extent the Providence Police Department is investigation the incident, “an ongoing investigation alone does not justify withholding records under APRA unless the agency can demonstrate specific prejudice.”

Conclusion

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 we find that the Department improperly redacted and withheld the responsive records under Exemption (D)(b) and we recognize that there is a public interest in the disclosure of the responsive records, we also recognize that the responsive records implicate the privacy interests of multiple third-party individuals. Specifically, we recognize that the summons report and body-worn camera footage contain information about and images of third-party witnesses and parties not involved in the underlying incident which we find are exempt from disclosure under R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(b), (D)(c), notwithstanding the Department’s failure to cite those exemptions in its denial. See Bilow v. Coventry Police Department, PR 25-22 (finding redactions were not waived as they implicated third-party privacy interests). Therefore, within five (5) business days of the issuance of this finding, the Department should either provide the Complainant with the responsive summons report and body-worn camera footage in full (with redactions made only to information and images of third-party witnesses and parties not involved in the underlying incident) and certify to this Office that it has done so, or if the Department contends that additional redactions or withholding is permissible under the APRA pursuant to exemptions other than (D)(b), it must provide a submission to this Office within five (5) business days identifying those exemptions and explaining why there is a compelling need for further redaction or withholding and why any such additional reasons for redacting or withholding were not waived pursuant to R.I. Gen. Laws § 38-2-7(a). If the Department submits a submission asserting additional reasons for withholding, the Complainant may submit a response within five (5) business days of the receipt of such submission.

Our file will remain open pending compliance as specified above. 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