Background and Arguments

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. 

·         Redactions to Incident Reports

The Department provided two incident reports but with redactions based on the privacy balancing test and interference with an ongoing investigation. The Complainant did not contest the applicability of these exemptions, his sole argument was that the records are per se public because they were introduced at a public meeting.

Among other exemptions, the APRA permits nondisclosure of “[p]reliminary 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) (“Exemption (K)”) (Emphasis added).

The Complainant asserts that the Department improperly redacted a portion of the incident report for #24-388-OF because under the APRA, “any document submitted at a public meeting shall be deemed public.” R.I. Gen. Laws § 38-2-2(4)(K). But this argument misunderstands the language of Exemption (K). Exemption (K) does not automatically make any record that has been submitted at a public meeting de facto public and open to public inspection, rather it limits the scope of Exemption (K)’s protections for “[p]reliminary drafts, notes, impressions, memoranda, working papers, and work products” by excluding those records that have been submitted at a public meeting. See Murray v. Town of Coventry, PR 22-19 (“[i]n other words, not every document submitted at a public meeting becomes responsive to public records requests: work product, however, once submitted, is made public under exemption (4)(K)”) (citing Providence Journal v. Rhode Island Office of General Treasurer, PR 14-15).

Here, the Department did not redact any information from the responsive incident report because it was a preliminary draft, note, impression, memoranda, working paper, or working product. Indeed, the Department did not cite to Exemption (K) at all in its partial denial. Instead, it redacted information from the responsive incident report pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b) and § 38-2-2(4)(D), neither of which limit the scope of their protections for records submitted at a public meeting. See R.I. Gen. Laws R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(b), (D).

Moreover, even if Exemption (K) did apply, the Department avers that “that the requested police reports have never been submitted at any public meeting, in whole or in part.” Despite asserting in his Complaint that the cited language from Exemption (K) somehow applies to the responsive incident report, the Complainant fails to cite to any public meeting in which the responsive incident report was purportedly submitted.

As the Complainant based his argument solely on Exemption (K) and aside from invoking Exemption (K) did not dispute that the exemptions cited by the Department permitted redaction, we have no occasion to further review the permissibility of the redactions. Nonetheless, we note generally based on our in camera review of the records, that the redacted portions of these incident reports (which do not pertain to an arrest) implicate privacy interests protected by Exemption (A)(I)(b) and we do not perceive any countervailing public interest that would require disclosure.

For all these reasons, we find no violation of the APRA by the Department in this instance.

·         Written legal opinions

The Complainant further alleges that the Department violated the APRA by failing to provide him with written legal opinions related to incident reports #24-388-OF and #24-452-OF. As an initial matter, it is not clear from the record that even if such records did exist that they would be responsive to the Complainant’s APRA request. See Bell v. Rhode Island Airport Corporation, PR 25-12 (“Under the APRA, it is the requester’s burden to clearly articulate what documents are being sought.”). Even if such records would be responsive, the Department states that any such communications between the Town’s Criminal Prosecutor and officers of the Department were “entirely verbal” and “[n]o such written documents exist in the possession of the Town.” The Complainant provides nothing in his Complainant, aside from bare allegations, to refute the Department’s assertion that any such communications were verbal and no responsive written records exist. 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).

Public bodies are only required to produce public records “maintained by” the public body. See R.I. Gen. Laws § 38-2-3(a). This Office has previously declined to find a violation of the APRA where a public body did not produce a record that it did not maintain or possess, noting that “[b]ecause the APRA does not require a public body to disclose records that do not exist or that are not within its custody or control, we find no violation.” Lopez v. City of Providence, PR 20-03. Here, the Complainant fails to identify evidence of any responsive records maintained by the Department. Accordingly, we find no violation of the APRA by the Department in this instance.

·         Portsmouth Town Charter

Finally, the Complainant alleges that the Department violated Section 508 of Article V of the Portsmouth Town Charter by not providing him with responsive written legal opinions. We decline to consider these allegations as they are beyond the purview of the Office. See Jackson, PR 24-29 (“this Office’s purview in this matter is limited to investigations of potential violations of the APRA”) (citing R.I. Gen. Laws § 38-2-8(b)).

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