State of Rhode Island
OFFICE OF THE ATTORNEY GENERAL
150 South Main Street- Providence, Rl 02903
(401) 274-4400 www.riag.ri.gov
Peter F. Neronha
| || |
VIA USPS ONLY
January 18, 2023
Mr. Thomas Winston
Attorney Michael A. Ursillo, Esquire
Re: Winston v. Warwick Police Department
Dear Mr. Winston and Attorney Ursillo:
We have completed our investigation into the Access to Public Records Act (“APRA”) complaint filed by Thomas Winston (“Complainant”) against the Warwick Police Department (“Department”). For the reasons set forth herein, we find that the Department did not violate the APRA.
The Complainant alleges that the Department violated the APRA by improperly making redactions to a Warwick Police Department Policy and Procedures Manual (“Manual”). He further alleges that the Department failed to provide all records responsive to his August 28, 2019 request for documents relating to himself, his neighbor, and both his and his neighbor’s home addresses, and by not responding to his request for any “Call Number” and “Incident Reports” related to himself, his neighbor, and both his and his neighbor’s home addresses (“Home Address Documents”).
The Complainant states that his first APRA request to the Department was submitted on August 28, 2019, wherein he requested the Home Address Documents. He states that on this same day, August 28, 2019, the Department “produced four records to me: Two ‘Call Number’ records from July 11 and July 13, 2019 and two two (sic) ‘Incident Reports’ from August 8, 2019 and August 25, 2019 … the two Incident Reports reference Call Number records which were not provided.”
The Complainant further states that he requested “any and all Call Number and Incident Reports regarding or relating to me, my neighbor, my home or my neighbor’s home … the (Department) produced nothing.”
Finally, the Complainant alleges that “[s]tarting roughly in January of 2020, I must have requested the (Manual) 500 times. Possibly 1000.” He additionally contends that upon eventual receipt of the Manual, he determined that it was “not complete. They deleted and intentionally edited [it] rather than redact.”
A substantive response was submitted on behalf of the Department by Attorney Timothy M. Bliss. As to the request for the Manual, the Department states that it “first became aware” of this request when the Officer in Charge of the Department’s Professional Standards Division received a letter seeking the same on February 5, 2020. The Officer in Charge provided the Complainant with the APRA request form used by the City Clerk’s Office (“Clerk”) to request documents. The Department states that the Clerk then received the Complainant’s APRA request for the Manual on March 5, 2020. The Department (through the Clerk) responded to the Complainant’s request on March 11, 2020, requesting prepayment in the amount of ten dollars ($10) for “reimbursement [for a] flash drive prior to the release of documents [as] permitted under the APRA.” The Department (through the Clerk) redacted “information [in the Manual] that ‘[w]ould disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions,’ as permitted under the APRA.” According to the Department, although the Complainant followed up with questions pertaining to his request, he “never paid the $10.00 fee,” and therefore never received the redacted Manual.
As to the Complainant’s request for the Home Address Documents, allegedly made by the Complainant on August 28, 2019, the Department avers that “neither the [Clerk] nor the Department have any record of a request for records from Complainant for either documents or call in numbers or incident reports.” Nevertheless, the Department appended one hundred and sixty-eight (168) pages of responsive documents to its response “[i]n the interest of expediency and disclosure.”
We acknowledge the Complainant’s Rebuttal.
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 mandates that “[e]ach public body shall establish written procedures regarding access to public records,” and these procedures must include “the identification of a designated public records officer or unit, how to make a public records request, and where a public record request should be made, and a copy of these procedures shall be posted on the public body’s website[.]” R.I. Gen. Laws § 38-2-3(d).
On February 28, 2020, the Department notified the Complainant that “[a]ny such request [to the Department] should be directed to the Warwick City Clerk’s Office as standard procedure” and provided the Complainant “with the form to be used to request documents through the City’s Clerk’s Office.” This form states (in part):
“the policy of the City of Warwick is that this form be filed with the office of the City Clerk. The Clerk’s office will then forward the request to the appropriate department for response … Prior to submitting, please visit our Web Site for Public Request Procedure.”
The APRA procedure listed on the City’s website additionally states that “[r]equests for access to public records must be made at the Warwick City Clerk’s Office between the hours of 8:30 p.m. and 4:30 p.m. on weekdays, (excluding government holidays) or electronically at Public.Records(at)warwickri.com.”
The Complainant states that he first requested the Home Address Documents “on August 28, 2019.” He also cites to language on the Department’s website with instructions as to how to make an APRA request. However, the Complainant does not explicitly state that he sought the Home Address Documents through the APRA process (either through the Department’s “Online Records Request” form or through the Clerk), nor does he provide documentary evidence to support his contention that he submitted an APRA request for the Home Address Documents on August 28, 2019. As previously noted, the Department denies having received an APRA request, either through the Clerk or the Department.
Based on the record before us, there is no evidence demonstrating that an APRA request (either through the Department or through the Clerk) was submitted by the Complainant prior to March 5, 2020. All supporting documentation provided by the Complainant is dated May 4, 2020 or later, and does not evidence submission of an APRA request to the Department or Clerk for the Home Address Documents in August of 2019. Supporting documentation provided by the Department evidences an APRA request (for the manual) submitted by the Complainant on March 5, 2020.
This Office also reviewed the supporting documentation provided by the Department, which establishes that the Department provided information to the Complainant concerning how to file an APRA request by way of a letter from Captain Joseph Petrarca, sent on February 28, 2020. An APRA request was subsequently filed by the Complainant on March 5, 2020 (for the Manual), as evidenced by Exhibit D of the Department’s Response. The sworn statements provided by the Department, including affidavits executed by Captain Petrarca and Clerk Lynn D’Abrosca, support the same.
Although the Complainant communicated frequently with the Department and may have expressed interest in the Home Address Documents, it has not been established that he submitted an APRA request for Home Address Documents at any point (either before or after Captain Petrarca’s letter), through either the Department’s Online Records Request form or through the Clerk. See Reale v. Office of the Governor, PR 21-15 (no violation where the Complainant did not submit his APRA request in accordance with the Governor’s Office posted procedures); Shapiro v. Town of Warren, PR 15-39 (no violation where the Town of Warren failed to respond to an APRA request submitted to the Town Manager instead of the Town Clerk, who was the Town’s designated public records officer in accordance with its APRA procedures); Stafford v. Rhode Island Family Court, PR 11-13 (no violation where the Rhode Island Family Court failed to timely respond to a request for public records because the request was not made pursuant to the Court’s established APRA procedures).
Importantly, in response to the instant Complaint, the Department produced one hundred and sixty-eight (168) pages of responsive documents that include information pertaining to the Home Address Documents. These documents appear to have been provided in full and Complainant has provided no indication to this Office of any issues with this production. This Office has previously determined it unnecessary for us to consider whether a public body violated the APRA where a complainant receives the subject documents after filing an APRA complaint and where there is no evidence of a willful and knowing or reckless violation. See Save the Bay v. DEM, PR 20-62; Lamendola v. East Greenwich School Committee, PR 20-11; Farinelli v. City of Pawtucket, PR 17-22. The reason for this conclusion is because, even assuming a violation occurred, the APRA only provides for two types of remedies: injunctive relief and civil fines for a willful and knowing or reckless violation. See R.I. Gen. Laws § 38-2-9(d).
Here, the Department has provided the Complainant with the Home Address Documents, at no cost, in response to his Complaint. As such, any potential need for injunctive relief is moot. Additionally, there is no evidence of a willful and knowing or reckless violation. The Department contends that it did not “have any record of a request for records from Complainant for [the Home Address Documents]” and for the reasons described above, there is insufficient evidence that the Complainant made an APRA request in compliance with the City’s APRA procedures.
The APRA provides that “[a] reasonable charge may be made for the search or retrieval of documents” and expressly allows the responding public body to require prepayment for “costs properly charged.” R.I. Gen. Laws §§ 38-2-4(b); 38-2-7(b).
The record shows that on March 5, 2020, the Complainant submitted an APRA request for the Manual to the Clerk through the City’s “Public Records Request Form.” On March 11, 2020, the Clerk responded to the request by seeking prepayment pursuant to R.I. Gen. Laws § 38-2-4(b) (“Fee for Thumb Drive - $10.00 … Total: $10.00).” Following the Clerk’s response, the Complainant engaged in email correspondence with the Clerk, beginning on March 19, 2020. This correspondence consisted of a number of questions about the APRA process (including questions as the cost of potential future APRA requests and how to submit multiple APRA requests). At no point, either in his Complaint nor in the evidence submitted by the parties, did the Complainant allege that this ten-dollar thumb drive fee was excessive. In fact, on March 19, 2020, the Complainant stated: “I’m happy to drop off a $10 bill.” Nevertheless, the record demonstrates that the Complainant never submitted payment to the Clerk.
The Department submits that “[a]fter the redacted version of the … Manual was downloaded onto a flash drive for Mr. Winston, a redacted version of the manual [was posted] on the Department’s website.” It also appears that at or about the same time the redacted Manual was publicly posted to the Department’s website, the Department emailed Complainant the redacted Manual, with which the Complainant takes issue. While the Complainant does not direct this Office to any particular redactions he takes issue with or otherwise directs this Office’s review, this Office conducted an in camera review of the unredacted version of the Manual and compared it to the publicly available redacted version of the Manual. Based on that review, this Office determined that any redactions made to the Manual were appropriate, and that the publicly available version of the Manual represents a reasonably segregable portion of the unredacted Manual. See R.I. Gen. Laws § 38-2-3(b). Should the Complainant or a future complainant take issue with a more particularized portion or section of redactions and present a more specific basis for the objection, this Office would take the newly raised portions or arguments into consideration. Accordingly, on this record, we find no violation as to the Manual.
Although the Attorney General has not found a violation and will not file suit in this matter, nothing within the APRA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. 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 note that the Complainant was directed to the Clerk’s Office to file an APRA request for Department records while there was also a separate “Online Records Request” form on the Department’s website. This may cause some confusion as to how to properly request Department records. This Office recommends that the Department clarify this process, either by making it clear that online requests will be processed by the Clerk or by establishing a standalone APRA procedure solely for the Department.
We thank you for your interest in keeping government open and accountable to the public.
PETER F. NERONHA
By: /s/ Adam D. Roach
Adam D. Roach
Special Assistant Attorney General
 The Complainant states that he “wrote a small (computer) program to auto-send [the Department] my records requests every few hours.”
 In his filings, the Complainant makes a number of allegations directed at the Department that are outside the scope of the APRA and will not be addressed in this finding. See R.I. Gen. Laws § 38-2-8.
 Attorney Michael A. Ursillo was appointed as the City Solicitor for the City of Warwick in January of 2021.
 We note that his is likely a typographical error on the City’s website and should read “8:30 a.m.”
 As of the date of this finding, the Department’s website includes an “Online Records Request” form and states: “PLEASE USE THIS FORM TO REQUEST ANY RECORDS. REPORTS WILL BE RELEASED IN COMPLIANCE WITH RHODE ISLAND GENERAL LAW CHAPTER 38, SECTION 2. REQUESTS CAN TAKE UP TO 10 DAYS AND CAN BE EXTENDED TO 20 DAYS UNDER CERTAIN CIRCUMSTANCES. POTENTIAL COST OF $.15 PER PAGE. ANY REPORT REQUIRING RESEARCH WILL BE SUBJECT TO A RESEARCH FEE OF $15.00/HR WITH THE FIRST HOUR BEING FREE. IN PERSON RECORDS REQUEST MUST BE SCHEDULED BY CONTACTING (401)468-4285.”