VIA EMAIL ONLY

June 15, 2026

Ms. Rachel Ware

Benjamin M. Scungio, Esquire

Dear Ms. Ware and Attorney Scungio:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Ms. Rachel Ware (“Complainant”) against the Cranston School Department (“School Department”). For the reasons set forth herein, we find that the School Department did not violate the APRA.

The Complainant submitted a public records request to the School Department seeking, inter alia: “All text messages exchanged on Derek Gustafson’s[1] cell phone on October 21, 2021 from 8 AM to 9 AM.” In response, the School Department denied the existence of any responsive records.

The Complainant administratively appealed the School Department’s denial. Superintendent Jeannine Nota-Masse affirmed the School Department’s denial. Superintendent Nota-Masse explained that she had consulted with Dean Gustafson “who informed [her] that at the time of the request the text messages on his phone had been deleted.” Dean Gustafson further informed the Superintendent that he had “reached out to his carrier, Verizon, and was informed that they only keep text messages for ten (10) days.”

The Complainant then submitted the instant Complaint to this Office. She asserted that school surveillance footage showed that Dean Gustafson was texting during the date and time requested. She further asserted that Dean Gustafson testified in court that he texted during this time to the School Resource Office to come to the school for an upset parent and a police report states the same.

The School Department submitted a substantive Response through its legal counsel Amanda Cascione, Esq. The School Department notes that the Complainant submitted her APRA request “almost sixteen (16) months after the allegation.” Thus, the School Department asserts that “[a]t the time of the request, the Cranston Public School Employee indicated that the text messages no longer existed on his phone, and went one step further, to see if Verizon could provide the records, which they could not.” The School Department further asserts that “[t]he mere fact that the complainant submitted documents showing that text messages were sent is not proof that the records of those text messages existed at the time of the APRA request.”

Here, there is no dispute that the requested text messages existed at one point in time. The Complainant points to surveillance footage, court testimony, and a police report that she asserts document that Dean Gustafson sent text messages during the date and time responsive to her APRA request. The School Department does not appear to dispute this fact as it acknowledges that  “the text messages on [Gustafson’s] phone had been deleted.” Clearly responsive text messages must have existed at one point in time for Dean Gustafson to have deleted such messages.[2]

The School Department asserts that the responsive text messages had been deleted from Dean Gustafson’s phone and Verizon no longer retained any copies of the text messages at the time the request was made. It is unclear how soon after the incident the text message were deleted from Dean Gustafson’s phone and whether he manually deleted them or if they were deleted through his usual data retention practices. In any event, we do acknowledge that the Complainant’s APRA request was made almost sixteen months after the date the text messages were sent and no evidence has been presented that the deletion of these text messages ran afoul of the School Department’s records retention schedules. Our jurisdiction is limited to the enforcement of the APRA and thus any allegation of violations of records retentions schedules or regulations is not addressed in this finding. See R.I. Gen. Laws § 38-2-8(b).

Untimely, the question under the APRA is not whether a public body should maintain or possess a record, but rather whether it actually does maintain or possess a record. Here, the Complainant does not dispute the School Department’s representation that Dean Gustafson deleted the responsive text messages from his cell phone and Verizon was unable to retrieve the text messages at the time the APRA request was made. Accordingly, we find the School Department did not violate the APRA by informing the Complainant that it did not maintain any responsive records. See Lopez v. Providence Police Department, PR 20-03 (“Because 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[.]”); Azar v. Town of Lincoln, PR 13-21 (“The Town is Not Obligated to Give Ms. Azar Records it Does Not Have”); see also R.I. Gen. Laws §§ 38-2-3(h), 38-2-7(c).