Background and Arguments

The Complainant submitted a public records request to the School Department seeking: “any/all phone numbers called or received at Western Hills Middle School on October 21, 2021, from 8 am to 9 pm.”

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 APRA states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or copy such records. See R.I. Gen. Laws § 38-2-3(a). The APRA requires public bodies to conduct a reasonable search for records, see J.H. Lynch & Sons v. Rhode Island Department of Transportation, PR 19-06 (“the APRA requires a public body to conduct a reasonable search aimed at locating documents that are responsive to the particular request”), but a public body is not required to provide records it does not maintain or that do not exist. R.I. Gen. Laws 38-2-7(c); Farinelli v. City of Pawtucket, PR 25-09 (the City did not violate the APRA by failing to provide call logs that it did not possess).

Here, the School Department responded to the Complainant’s request by informing her that no responsive records were in the Department’s possession. The Complainant asserted that she witnessed the school principal make phone calls during the date and time in question and other documents show phone calls were received or made from the school during that date. Therefore, she asserts that the School Department must possess phone logs which document those phone calls.

However, simply asserting that a public entity should have created or possessed a certain document is insufficient, without more, to support the Complainant’s assertion that the School Department maintained records responsive to her request. See Alba v. Rhode Island Department of Environmental Management, PR 24-19 (finding that a complainant’s assumption that a lease would exist is insufficient to demonstrate that a public entity possessed such a lease); Caldwell v. Rhode Island College, PR 24-05 (finding that conclusory statements about what records a public entity should have are insufficient to demonstrate that a public entity possesses those records). Just because phone calls were received or made from the school building during the date in question does not mean that records of those calls exist or were in the possession of the School Department, especially given the lapse in time between the date of records requested and the date that the request was submitted.

Here, CTO Frappier documented the search efforts undertaken by the School Department in her sworn affidavit. She stated that the School Department does not have records which document phone calls received or made in its possession. It possesses phone bills from Cox, but they do not contain a record of calls made or received. CTO Frappier further asserted that she checked the School Department’s Cox account, but that only showed calls going back 119 days, which did not encompass the date that was the subject of the Complainant’s request.

CTO Frappier stated that she “just became aware of and did not know at the time of the request, that Cox [upon request] can provide phone numbers going back eighteen (18) months.” Although the Complainant made her request within 18 months of the date for which she was seeking a call log, by the time of the School Department’s response to the instant Complaint, more than 18 months had passed. In her rebuttal, the Complainant avers that the School Department’s failure to request any responsive records from Cox at the time when it received her request (and when it was still within the aforementioned 18 month window when the log for that day would have been available upon request to Cox) constituted an APRA violation.

Although a public body must produce all non-exempt records it maintains, nothing within the APRA requires a public body to “reorganize, consolidate or compile data not maintained by the public body[.]” R.I. Gen. Laws § 38-2-3(h); see also R.I. Gen. Laws § 38-2-7(c) (“A public body that receives a request to inspect or copy records that do not exist or are not within its custody or control shall, in responding to the request in accordance with this chapter, state that it does not have or maintain the requested records”).

In certain instances, this Office has held that when a third party is acting on behalf of the public body such that it is itself a public body, the records maintained by that third party are subject to the APRA. See The Providence Journal v. Rhode Island Convention Center Authority, PR 21-11 (finding that an entity which “manages, operates and maintains” the Convention Center and other facilities on behalf of the Authority was “acting on behalf of and/or in place of [a] public agency”). The APRA defines a public body to include “any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.”  R.I. Gen. Laws § 38-2-2(1). We have also previously recognized that a public body may have an obligation to obtain documents from its contractor or vendor in certain circumstances even if the contractor or vendor is not itself a public body. For instance, in Novak v. Western Coventry Fire District, PR 21-08, the Fire District did not physically maintain copies of requested PowerPoints, but the record indicated that the Fire District hired a vendor to create the PowerPoints and that the PowerPoints were presented to the Fire District for its benefit. In that case, we determined that we had not been provided with sufficient evidence that the Fire District did not have an obligation to obtain the records in connection with an APRA request. We noted, “[i]t would defeat the purpose of the APRA if a public body could avoid disclosure simply by hiring a third party and having that third party maintain possession of documents that were created for and presented to the public body.”

Here, we find it unnecessary to determine whether the School Department had an obligation to request the responsive records from Cox.  That is because, even assuming the School Department did have such an obligation and violated the APRA by failing to do so, the APRA only provides for two remedies: injunctive relief and civil fines for a willful and knowing or reckless violation.  See, e.g., Childs v. Bonnet Shores Fire District, OM 22-14; see also R.I. Gen. Laws § 42-46-8(d). On multiple occasions, this Office has found it unnecessary to analyze the particular allegations asserted and has proceeded to resolve the case on the basis that, even assuming the alleged violation(s) occurred, no relief is appropriate.  See Zonfrillo v. Narragansett Town Economic Development Committee, OM 23-11; Cienki v. Rhode Island Special Commission on Reapportionment, OM 22-33; Lyssikatos v. City of Pawtucket, PR 21-04; Save the Bay v. Rhode Island Department of Environmental Management, PR 20-62; Lamendola v. East Greenwich School Committee, PR 20-11.

Here, the record evidences that by the time the School Department responded to this Complaint it was no longer able to obtain the relevant phone log for the requested date in 2021. As such, the evidence shows that even if the School Department could have at one time requested the phone log, it is no longer able to do so. The Complainant does not provide any evidence that it would still be possible for the School Department to obtain the log for the 2021 date in question. As such, the record does not evidence any injunctive relief this Office could require.

We also do not find that civil fines would be appropriate even assuming the School Department violated the APRA. The School Department provided evidence that it conducted a search in response to the request and that it was not aware at that time that it could request a phone log from Cox that would show calls dating back to 2021. The question of whether a public body has an obligation to obtain records from a third party in response to an APRA request can present complex issues. Although there are some grounds to suggest that the School Department should have sought to obtain the record from Cox at the time of the request, the issue is not entirely straightforward and we think the School Department could have in good faith concluded it was not required to inquire with Cox about obtaining the requested records. In these circumstances, even assuming the School Department violated the APRA, any violation would not have been willful and knowing or reckless. Accordingly, we need not reach the question of whether the School Department violated the APRA because even if it did, no relief would be appropriate.     

Conclusion

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