VIA EMAIL ONLY

June 10, 2026

Mr. Tarn Waring

Kevin P. Gavin, Esquire

Dear Mr. Waring and Attorney Gavin:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Tarn Waring (“Complainant”) against the Town of Portsmouth Police Department (“Department”). For the reasons set forth herein, we find that the Department did not violate the APRA.

The Department submitted a substantive response through Portsmouth Town Solicitor Kevin P. Gavin, Esq. The Department asserts that it properly responded to the Complainant’s request via Captain Cahoon’s correspondence to the Complainant.[1] It asserts that “much of the [Complaint] … pertains to issues and concerns that fall outside of APRA and the procedures set forth in the act.” It asserts that it “has done its best to try to decipher … what specific public records were being requested, and what exemptions applied.”  

We acknowledge the Complainant’s rebuttal and supplemental information provided to this Office.

The Department informed the Complainant that the requested “4/28/2023 signed complainant statement” did not exist. The Complainant in his Complaint did not identify any reason to believe that such record did exist in the possession or control of the Department. He only raised the issue in his rebuttal where he asserted that the Department may have improperly deleted his email to them containing the 4/28/2023 signed complainant statement. However, the Complainant does not identify any evidence that the Department actually maintained the record and his Complaint does not argue that the Department refused to provide him with a record it maintains.  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). As the record before us does not support the proposition that the Department maintained the requested record, we find no violation.[2]

·         Third request - video clips of 23-808-OF

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 to copy such records. See R.I. Gen. Laws § 38-2-3(a). The APRA exempts from public disclosure “[a]ll records maintained by law enforcement agencies for criminal law enforcement and all records relating to the detection and investigation of crime,” where disclosure, among other reasons, “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(D)(c). The plain language of R.I. Gen. Laws § 38 -2-2(4)(D)(c) contemplates a “balancing test” whereby the “public interest” in disclosure is weighed against any “privacy interest.” Consequently, we must balance the “public interest” and “privacy interest” to determine whether the disclosure of the requested records, in whole or in part, could or would reasonably be expected to constitute a clearly unwarranted invasion of personal privacy.

When a law enforcement agency investigates a member of the public and determines that an arrest is not warranted, records related to the investigation implicate privacy interests. See, e.g., Fund for Constitutional Government  v. National Archives and Records Service, 656 F.2d 856, 864 (D.C. Cir. 1981) (“There can be no clearer example of an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation.”)[3]; see also American Civil Liberties Union v. Department of Justice, 655 F.3d 1, 7 n.8 (D.C. Cir. 2011) (“[D]isclosure of records revealing that an individual was involved or mentioned in a law enforcement investigation implicates a significant privacy interest,” particularly where the individual was never charged or convicted). Additionally, private individuals who encounter the police to report crimes or for other reasons unrelated to being arrested have a privacy interest in reports containing their personal information and documenting those encounters. See Lyssikatos v. Narragansett Police Department, PR 21-12 (finding that third-party complainants have a privacy interest in their personal information in police reports).

This Office has repeatedly recognized that when applying the balancing test to records related to incidents where no arrest occurred, the privacy interests may be especially heightened and the scales could accordingly tip in favor of nondisclosure. See Jenkins and Langer v. Narragansett Police Department, PR 20-35; Mercurio v. Cranston Police Department, PR 20-31; Harper v. Portsmouth Police Department, PR 19-15. This applies not only to incident reports, but also to related video footage maintained by law enforcement agencies. See Burke v. Cranston Police Department, PR 24-36. Nonetheless, we have also repeatedly made clear that every record that is the subject of an APRA request must be thoughtfully reviewed on a case-by-case basis and public bodies should not automatically withhold records solely because they involve an incident did not result in an arrest. 

Here, the Complainant requested video footage regarding an incident that did not result in arrest. The Department has asserted that release of the footage “[c]ould reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Complainant has not presented any argument or reason to cast doubt upon the Department’s assertion that the footage implicates personal privacy interests. The Complainant only notes that he was the one who was involved in this incident, but this Office’s “sole purpose is to determine whether the requested documents should be made available to the public-at-large, not specific persons who assert a heightened personal interest in a document.” Provost v. Narragansett Police Department, PR 22-2. This Office has previously noted “under the APRA you have no greater right to access the requested records than any member of the general public, regardless of whether you are the subject of the [requested material].” Walters v. Department of Public Safety, PR 11-38. Further, this Office has explained that when it is determined that “a particular document is a public record, then any person may access or inspect that record regardless of whether or not they are an interested party. For this reason, the fact that [a complainant] may be requesting records concerning [themselves] is of no consequence to our analysis.” Id.; see Bernard v. Vose, 730 A.2d 30, 31 (R.I. 1999) (holding that no one has an “individualized right to review” public records related to themselves). Therefore, the Complainant does not have any particularized right to access records pertaining to himself under the APRA.

We now consider whether the public interest in the disclosure of the video outweighs the privacy interests implicated. See Dept. of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 772 (1989) (“[W]hether disclosure of a private document . . . is warranted must turn on the nature of the requested document and its relationship to ‘the basic purpose . . . to open agency action to the light of public scrutiny.’”); Farinelli v. City of Pawtucket, PR 23-39 (“The touchstone concerning whether public disclosure of a record maintained by the government outweighs an individual’s privacy is whether the records concern official information about the government agency or sheds light on the conduct of government.”). Here, the Complaint filed with this Office did not identify any public interest in the release of the requested video footage. Indeed, our in camera review of the video footage did not suggest that disclosure of the responsive footage would meaningfully advance any public interest. While our discussion of the footage is limited by the nature of our in camera review, the footage depicts an incident involving private members of the public and based on our review, it appears the footage does not depict any law enforcement officers or potential law enforcement misconduct or anything else that would be in the public interest. On this record, we find that the privacy interests in the footage outweigh any public interest. Therefore, we conclude that the Department did not violate the APRA by withholding the responsive video footage in its entirety pursuant to Exemption (D).

·         Fourth request - the yellow light case of all narratives of 23-808-OF

It is not entirely clear to this Office what the Complainant was requesting when he requested the Department provide him with the “yellow light case” of narratives of 23-808-OF. After reviewing correspondence between the Complainant and the Department, it appears that the phrase “yellow light case” derives from a graphic used by this Office in our annual Open Government summit to describe records or portions of records that are exempt from disclosure but where the public body may nonetheless opt to disclose, even if not required to do so by law. In this context, it appears that the Complainant had previously requested the narratives of 23-808-OF and been provided the narratives with redactions. He then submitted another public records request seeking just the redacted portions, what he refers to as the “yellow light case” portions of the narratives.

Initially, it is unclear if this is a proper APRA request. It is not clear that the Complainant’s fourth request is intended as a new APRA request that overlaps with a prior one he already made, or if it is a request for the Department, outside of the APRA process, to provide him with access to content that was previously redacted under the APRA. He does not appear to actually request records themselves, but only access to content previously redacted under the APRA.

Even if the Complainant’s request was a proper APRA request, we do not find that the Department violated the APRA by not providing the Complainant with the requested redacted content. The Complainant only takes issue with the redaction of a name from the narratives of 23-808-OF. He notes that due to his personal involvement in the matter, the redaction should not be made. But again, this Office’s “sole purpose is to determine whether the requested documents should be made available to the public-at-large, not specific persons who assert a heightened personal interest in a document.” Provost, PR 22-2. The Complainant’s involvement with the underlying incident is irrelevant in evaluating whether the public has a right to the redacted content under the APRA. See Walters, PR 11-38; Bernard, 730 A.2d at 31.

As discussed above, when a law enforcement agency investigates a member of the public and determines that an arrest is not warranted, records related to the investigation implicate privacy interests. See Fund for Constitutional Government, 656 F.2d at 864. The individuals who make the underlying complaint also have a privacy interest in reports containing their personal information and documenting their encounters with law enforcement. See Lyssikatos, PR 21-12 (finding that third-party complainants have a privacy interest in their personal information in police reports). Here, the individual who made the complaints to law enforcement that led to the incident memorialized in 23-808-OF has a privacy interest in their personal information being protected.

We now consider whether the public interest in the disclosure of the redacted content outweighs the privacy interests implicated. See Dept. of Justice, 489 U.S. at 772; Farinelli, PR 23-39. Here, the Complaint filed with this Office did not identify any public interest in the release of the name of the individual who made the complaint in 23-808-OF. Nor is any such interest apparent to us based on the record before us. Therefore, we conclude that the Department did not violate the APRA by redacting the name of the complainant in the narratives of 23-808-OF pursuant to Exemption (D).

·         Town of Portsmouth’s website

The APRA instructs that “[n]o public records shall be withheld based on the purpose for which the records are sought, nor shall a public body require, as a condition of fulfilling a public records request, that a person or entity provide a reason for the request or provide personally identifiable information about him/herself.” R.I. Gen. Laws § 38-2-3(j)

The Complainant asserts that the Town of Portsmouth violated this provision because its website states that “[t]he department may ask you the reason for your [public records] request, as its regular course of business. However, you are not required to provide identification or reasons why you seek the information.” This language, which the Complainant asserts appears on the Town of Portsmouth’s website, complies with the mandate of R.I. Gen. Laws § 38-2-3(j) as it clearly informs requesters that “you are not required to provide identification or reasons why you seek the information.” (Emphasis added). To the extent that it indicates requesters may be asked the reason for their request, this does not violate R.I. Gen. Laws § 38-2-3(j) as it clearly informs requesters that they are under no obligation to provide a reason. Indeed, public bodies sometimes ask requesters for the reason behind their request when needed to aid them in fully and efficiently understanding the request and searching for all responsive records, or in applying the balancing test and determining whether there is an asserted public interest in the requested records. We encourage more, not less, dialogue between requesters and public bodies to facilitate swifter and more accurate fulfillment of public records requests. Accordingly, we do not find that the language on the Town of Portsmouth’s website constituted a violation of the APRA. However, we do encourage the Town to consider adding additional context to the language on its website to help requesters understand why they may be asked to provide a reason for why they seek certain records, and to make clearer that the question would typically be posed to the extent the answer could aid the public body in processing the request.