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
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VIA EMAIL ONLY
January 25, 2023
Ms. Katrina Lapierre
Timothy C. Cavazza, Esquire
Legal Counsel, Woonsocket Housing Authority
Louise Marcus, Esquire
Legal Counsel, Woonsocket Housing Authority
RE: Lapierre v. Woonsocket Housing Authority
Dear Ms. Lapierre and Attorneys Cavazza and Marcus:
We have completed our investigation into six (6) Access to Public Records Act (“APRA”) Complaints filed by Ms. Katrina Lapierre (“Complainant”) against the Woonsocket Housing Authority Board of Commissioners (“WHA”). As the complaints involve the same parties and substantially similar allegations, we will combine the Complaints and issue one (1) finding. For the reasons set forth herein, the Office of the Attorney General (“Office”) finds that the WHA violated the APRA with respect to three (3) complaints and that additional information is required regarding one, and possibly two complaints, as well as additional information being required to determine whether the violations found herein were willful and knowing, or reckless.
First Complaint - December 16, 2021
The Complainant filed an APRA request with the WHA on November 29, 2021, seeking the following (formatting slightly altered):
“Per RIGL 38-2 access to Public Records Act, I request the following information from the Woonsocket Housing Authority. I am requesting a copy of the Board of Commissioner ZOOM Meeting files(video [sic] meetings with audio) for all Board meetings from April 2021 to present. My request is to be provided either a link to download the meetings or a downloaded copy of each meeting to be sent to me via email.” (Parenthetical in original).
On December 9, 2021, the WHA provided the Complainant with audio and video recordings of its September 16, October 21, October 28, November 8, and November 18, 2021 meetings “that were saved to the Zoom Cloud” via a link to download. On that same day, Complainant sent an email to WHA Executive Director, Vasiliki Milios, reiterating her request for “the BOC zoom meetings from April 2021 to present” and stating that, “[i]f the meetings omitted are not included in the cloud then they are on my laptop which is in the possession of the WHA.” The Complainant argues that she received no further response from the WHA following her December 9 communication and filed a Complaint with this Office alleging that the WHA had violated the APRA by not providing all of the requested meeting recordings in response to her request.
The WHA submitted a substantive response through its attorney, Timothy C. Cavazza, Esquire, which included several exhibits of communications between the WHA and the Complainant as well as an affidavit from WHA Executive Director, Vasiliki Milios. The WHA acknowledges receipt of the Complainant’s November 2021 APRA request and that it provided her with the Zoom meeting recordings for five (5) meetings occurring during 2021, stating that this “production included all responsive documents within [WHA’s] possession, custody, or control that it could locate after a reasonable and diligent search.” The WHA attests that, “[a]fter receiving [the Complainant’s] December 9, 2021 email communication, the WHA conducted another reasonable and diligent search for additional responsive documents, but we were unable to locate any additional responsive documents within the WHA’s possession, custody or control.” The WHA contends that its search included “reasonable attempts to access responsive documents on the laptop computer that [the Complainant] used during her employment with the WHA prior to being placed on administrative leave.” The WHA maintains that the Complainant is in possession of “all documents responsive to her November 29, 2021 request that are within [the WHA’s] possession, custody, or control.”
The WHA does not provide any argument regarding its alleged failure to respond to the Complainant’s December 9, 2021 follow-up email requesting the “omitted meetings.”
The Complainant did not submit a rebuttal.
Second Complaint - January 6, 2022
The Complainant alleges that she submitted an APRA request to the WHA on December 20, 2021 for Board Zoom meeting files for meetings occurring on December 16 and December 17, 2021 and the WHA failed to respond to her request.
Attorney Cavazza submitted a substantive response on behalf of the WHA. The WHA maintains that it responded to the Complainant’s request on January 14, 2022, providing “the Zoom link to the December 16, 2021 Board meeting” and “also informed [the Complainant] that [Executive Director Milios] could not forward [the Complainant] the December 17, 2021 Zoom meeting link because that link included the Board’s executive session meeting minutes, which were sealed by an affirmative vote of the Board.” The WHA “admits that it sent [the Complainant] all responsive public records within its possession, custody or control on January 14, 2022, which was 16 business days after the initial request.”
The WHA also argues that the Complainant does not qualify as an “aggrieved person” under the APRA with standing to file a Complaint in connection with her December 20 request. In support thereof, the WHA states that it “produced the requested records, albeit 16 business days after the request, thereby evidencing its determination that the produced record is subject to public inspection. As a result, the Complaint should also be dismissed for lack of standing.”
Finally, the WHA argues that if this Office were to find that it violated the APRA due to its belated response to the request, such a violation should not be considered knowing and willful, or reckless as “the WHA was without legal counsel during the 10-business-day period after [the Complainant] submitted her request” and “the request was received during the week of Christmas and prior to the week of New Year’s.”
We acknowledge Complainant’s rebuttal wherein, she requested that the WHA, if it could not provide the recording of the December 17 meeting in its entirety, provide her the portions of that meeting that were held in open session (i.e., the beginning and end of the meeting).
Third Complaint - February 15, 2022
The Complainant submitted an APRA request to the WHA on January 31, 2022, seeking “the WHA Board of Commissioners ZOOM audio and video file for the January 20, 2022 meeting.” Having allegedly received no response from the WHA, the Complainant filed the Complaint with this Office.
Attorney Cavazza submitted a substantive response to this Office contending that Executive Director Milios provided Complainant with the requested recording on February 28, 2022, which the WHA does not contest was nineteen (19) business days after the initial request was made.
The WHA again contests the Complainant’s position as an “aggrieved” person with standing to file a Complaint, arguing that, the Complainant was not denied access to the requested records as the WHA provided the same, albeit belatedly.
We acknowledge Complainant’s rebuttal.
Fourth Complaint - May 27, 2022
The Complainant alleges that she submitted two (2) APRA requests to the WHA on the same day sometime in April 2022, seeking “legal invoices” and Zoom files for WHA meetings occurring on March 24, 2022, April 7, 2022 and April 14, 2022. The Complainant contends that she was provided the records requested but was charged $15.00 for each response provided by the WHA. The Complainant maintains that she requested “an itemization of the costs charged for search and retrieval,” but received no response from the WHA. The Complainant alleges the WHA violated the APRA by failing to provide her with a breakdown of the costs charged.
The WHA submitted a substantive response through Attorney Louise Marcus in the form of an affidavit from Executive Director Milios. Executive Director Milios attests that she “understood the APRA to permit a public body to accumulate time spent for APRA requests from the same person or entity, and to charge a fee for time spent in excess of one (1) hour. *** [She] later learned that the APRA qualifies that right, only permitting a public body to do so for requests received from the same person or entity within thirty (30) days. *** Complainant did not pay any fee for the numerous APRA requests that the WHA fulfilled for her. Going forward, should Complainant’s numerous requests meet the APRA’s definition of exceeding one (1) hour in any thirty (30) day period, the WHA will be certain to notify Complainant and to provide an itemized breakdown of said costs.”
The Complainant did not submit a rebuttal.
Fifth Complaint - June 30, 2022
The Complainant submitted an APRA request to the WHA on June 17, 2022, seeking “the minutes disclosing all votes for the WHA Board of Commissioners meeting held on June 16, 2022.” The WHA responded to the Complainant stating that it was unable to fulfill the request “because the WHA is not yet in possession of the record” requested but expected to be in possession of the same by the next meeting. The WHA thus extended the time to respond to Complainant’s request an additional twenty (20) business days in order to fulfill the request.
The Complainant responded to the WHA citing R.I. Gen. Laws § 42-46-7(b)(1), which states, in pertinent part, “[a] record of all votes taken at all meetings of public bodies, listing how each member voted on each issue, shall be a public record and shall be available to the public at the office of the public body within two (2) weeks of the date of the vote.” Having received no response, Complainant filed a Complaint with this Office alleging that the WHA violated the APRA and/or OMA by failing to disclose the requested votes during the requisite time period.
Attorney Marcus submitted a substantive response on behalf of the WHA, inclusive of affidavits from Executive Director Milios and a copy of the draft minutes for the WHA June 16, 2022 meeting. The WHA argues that it received the Complainant’s request “the morning after the Board’s after-hours public meeting” and was not yet in possession of the records requested. The WHA maintains that it invoked the twenty (20) business day extension afforded under the APRA so that it could obtain the transcribed minutes from its vendor in order to provide the same to the Complainant. The draft meeting minutes were provided to the Complainant on July 19, 2022.
We acknowledge Complainant’s rebuttal.
Sixth Complaint - August 17, 2022
The Complainant alleges that she submitted an APRA request to the WHA for Board of Commissioners transcripts. The Complainant did not provide the date of the request, the specific language of the request, or a copy of the original request. Based upon the record before us, it appears that the Complainant requested transcripts for meetings occurring between October 2021 and July 2022. The Complainant contends that the WHA provided the requested transcripts “but pages were omitted.” Complainant maintains that she “reached out to the WHA to please resend the entire transcripts” but received no response. The Complainant only provided copies of three (3) meeting transcripts she received from the WHA with purportedly missing pages for the meetings occurring on October 21, 2021, January 20, 2022, and April 7, 2022. The Complainant did not specify which pages she alleges were missing or omitted. The transcripts range from 190 pages to over 360 pages.
The WHA did not submit a substantive response to the Complaint. Rather, an email from Executive Director Milios to the Complainant dated August 19, 2022 was forwarded to this Office. The text of the email exchange says, “this email contains the BOC transcripts from January 2022 – July 8, 2022” and “from October 21, 2021 – December 28, 2021.” It is unclear how many meetings occurred during this timeframe and thus how many meeting transcripts the Complainant was provided. Nor could this Office access the attachments to the WHA email.
We acknowledge 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 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). 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”). (Emphasis added).
While the APRA unequivocally states that public records must be provided to requesting parties unless the records are exempt, it is well settled that a public body does not violate the APRA by not providing records it does not maintain or that do not exist. See Lopez v. Department of Providence, 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).
Here, the WHA provided undisputed evidence in the form of an affidavit from Executive Director Milio that it ”made reasonable attempts to access responsive documents” on the Complainant’s laptop computer, but found no additional responsive documents beyond the five (5) files provided to the Complainant. However, the WHA failed to articulate to the Complainant, either in its December 9 response or after the Complainant’s follow-up email, that it did not maintain any additional records responsive to her request. See R.I. Gen. Laws § 38-2-7(c). Rather, the WHA merely indicated it was providing recordings “that were saved to the Zoom Cloud.” Accordingly, we find the WHA violated the APRA in connection with the First Complaint for failing to indicate it did not maintain additional records responsive to the APRA request.
As an initial matter, we must address the WHA’s contention that the Complainant does not have standing to bring forth her Complaint as the WHA responded to the APRA request, albeit belatedly. This argument is easily rejected. Rhode Island General Laws § 38-2-8(b) states, in pertinent part:
“If the custodian of the records or the chief administrative officer determines that the record is not subject to public inspection, the person or entity seeking disclosure may file a complaint with the attorney general.”
The APRA further provides that, “[a] public body receiving a request shall permit the inspection or copying within ten (10) business days after receiving a request.” R.I. Gen. Laws § 38-2-3(e). Additionally, “[f]ailure to comply with a request to inspect or copy the public record within the ten (10) business day period shall be deemed to be a denial.” See R.I. Gen. Laws § 38-2-7(b) (emphasis added).
Here, it is uncontested that the WHA failed to respond to the Complainant’s request, or otherwise communicate with the Complainant, within the ten (10) business days time period. Pursuant to the APRA provisions cited above, this failure to respond timely is deemed a denial of the Complainant’s request. See R.I. Gen. Laws § 38-2-7(b). Although we acknowledge the WHA’s partial response to the Complainant’s request on January 14, 2022, this response came beyond the 10-business day period and after the Complainant filed her Complaint with this Office. Accordingly, WHA’s failure to timely respond to the Complaint – equating to a denial of the Complainant’s request – conferred standing upon the Complainant to raise her allegations with this Office.
On the merits of the Complainant’s allegation that the WHA violated the APRA by failing to respond to her request, the WHA concedes that it failed to timely respond to the Complainant’s request as required by R.I. Gen. Laws § 38-2-3(e). The WHA did not contend that Complainant failed to comply with the WHA’s procedures for submitting APRA requests. See R.I. Gen. Laws § 38-2-3(d) (requiring public bodies to establish written procedures regarding access to public records). Accordingly, we find the WHA violated the APRA by failing to respond to the request in a timely manner.
We understand that the Complainant has now been provided with a copy of the Zoom file for the December 16 meeting, but that the WHA denied her request for the file of the December 17 meeting as an executive session occurred during that meeting. The APRA requires that any reasonably segregable portion of a public record be provided. See R.I. Gen. Laws § 38-2-3(b). The WHA has not addressed whether it is able to provide reasonably segregable portions of the December 17 open session meeting in response to the Complainant’s request.
“Any denial of the right to inspect or copy records, in whole or in part provided for under this chapter shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial within ten (10) business days of the request and indicating the procedures for appealing the denial. Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.” R.I. Gen. Laws § 38-2-7(a). (Emphasis added).
Therefore, within ten (10) business days of the date of this finding, the WHA should either produce any reasonably segregable portion of the December 17 meeting. If no reasonably segregable portion is available, the WHA should provide this Office with a brief supplemental submission stating why there are no reasonably segregable portions of the December 17 meeting, specifying which provision(s) of the APRA the WHA contends apply to exempt the December 17 minutes, in whole or in part, and provide argument that such exemption(s) should not be considered waived. See R.I. Gen. Laws § 38-2-7(a). If no reasonably segregable portion exists, the WHA must also indicate the steps taken to determine whether a reasonably segregable portion could be provided.
Having already addressed the WHA’s standing argument, supra,, we need not repeat the same discussion here. For the reasons outlined above, we again find the Complainant has standing to bring forth the Third Complaint as the WHA’s failure to timely respond to the request constituted a denial under the APRA. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7(b).
Turning to the merits of the Complainant’s allegation, the WHA concedes that it failed to timely respond to the Complainant’s request. Accordingly, the WHA violated the APRA. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7(b). We acknowledge that the Complainant has now been provided with the records sought in her January 31, 2022 request.
The APRA provides that:
“A reasonable charge may be made for the search or retrieval of documents. Hourly costs for a search and retrieval shall not exceed fifteen dollars ($15.00) per hour and no costs shall be charged for the first hour of a search or retrieval. For the purposes of this subsection, multiple requests from any person or entity to the same public body within a thirty (30) day time period shall be considered one request.” R.I. Gen. Laws § 38-2-4(b).
Further, “[u]pon request, the public body shall provide a detailed itemization of the costs charged for search and retrieval.” R.I. Gen. Laws § 38-2-4(d) (emphasis added).
The Complainant argues, “I do not see how providing links from Zoom would take longer than an hour especially since I have been provided similar link requests without a charge. In addition, the WHA failed to notify me if any charges would be incurred with this request and was unresponsive to my request for a breakdown of time used in the search and retrieval of such information.”
Executive Director Milios’ affidavit acknowledges that the WHA’s request for payment was grounded in a misunderstanding of the above-cited APRA provisions, and it has since rescinded that request for payment. Accordingly, Complainant’s allegations are moot, and we need not consider the merits further.
The APRA states that a public body shall respond to an APRA request within ten (10) business days after receiving a request and may have up to an additional twenty (20) business days to comply with the request “if it can demonstrate that the voluminous nature of the request, the number of requests for records pending, or the difficulty in searching for and retrieving or copying the requested records, is such that additional time is necessary to avoid imposing an undue burden on the public body.” R.I. Gen. Laws § 38-2-3(e).
Here, on June 17, 2022, the Complainant requested the minutes evidencing votes taken at a June 16, 2022 meeting. While the WHA responded that such minutes were not currently maintained by the WHA – and thus the WHA could have denied the APRA request, see R.I. Gen. Laws § 38-2-3(h) – the WHA instead chose to extend the time to respond to the APRA an additional twenty business days while it presumably created the minutes in its regular course of business. The WHA provided the Complainant the responsive minutes on July 19, 2022, which was within the time period extended.
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 Lamendola v. East Greenwich School Committee, PR 20-10; Farinelli v. City of Pawtucket, PR 17-22; Piskunov v. Town of North Providence, PR 16-38. Here, the undisputed evidence demonstrates that the WHA provided Complainant with the requested minutes. As such, any request for injunctive relief is moot. Additionally, we were provided with no evidence that the WHA’s extension of time to respond violated the APRA. See R.I. Gen. Laws § 38-2-9(d). Indeed, the undisputed evidence demonstrates that the WHA did not maintain such a document when requested, could have denied the APRA request, but instead extended the time to create and provide access to the requested document.
The APRA provides that, unless exempt, “all records maintained or kept on file by any public body, whether or not those records are required by any law or by any rule or regulation, shall be public records and every person or entity shall have the right to inspect and/or copy those records.” R.I. Gen. Laws § 38-2-3(a).
Based on this Office’s review of the three (3) transcripts provided by the Complainant, it appears these transcripts are not missing any omitted pages. Rather, it appears there are blank pages inserted between the pages of text (i.e. a blank page between pages 57 and 58 of the January 20, 2022 transcript). To be sure, however, Complainant has not directed this Office to the date of the request or any specific missing pages. To the extent Complainant contends pages are missing – or that clarification is required to determine whether pages are missing – Complainant should communicate this concern to the WHA within five (5) business days of this finding. We would expect the WHA to resolve any issues concerning this aspect of the Complaint, but if any remaining issues continue to exist, the WHA should address them in the supplemental filing to this Office within ten (10) business days of the date of this finding
Upon a finding of an APRA violation, the Attorney General may file a complaint in Superior Court on behalf of the complainant, requesting “injunctive or declaratory relief.” See R.I. Gen. Laws § 38-2-8(b). Additionally, a court “shall impose a civil fine not exceeding two thousand dollars ($2,000) against a public body ... found to have committed a knowing and willful violation of this chapter, and a civil fine not to exceed one thousand dollars ($1,000) against a public body found to have recklessly violated this chapter.” See R.I. Gen. Laws § 38-2-9(d).
For the reasons discussed in this finding, injunctive relief may be appropriate only in connection with the Second Complaint, however, we will first allow the WHA an opportunity to comply with the directives outlined herein within ten (10) business days of the date of this finding. We do not rule out injunctive relief with respect to the Sixth Complaint, but we await a supplemental response on this issue, as appropriate.
We are also deeply concerned at the volume and nature of Complaints filed against the WHA in such a short period of time. In at least some of these matters the Complainant requested clarification from the WHA prior to filing a complaint with this Office, which the WHA did not respond to, thus necessitating a complaint to this Office. The evidence before this Office also demonstrates a lack of knowledge of the APRA requirements. We would expect the WHA to remedy these concerns. Therefore, in addition to the supplemental submissions regarding the Second and, if necessary, Sixth Complaints, within ten (10) business days of the date of this finding, the WHA should also provide a supplemental submission addressing whether the violations found herein (First, Second, and Third Complaints) were willful and knowing, or reckless.
The Complainant may provide a supplemental rebuttal within five (5) business days of receiving the WHA’s supplemental response.
Although the Attorney General will not file suit in this matter at this time, 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 this file remains open pending the WHA’s compliance with this finding.
We thank you for your interest in keeping government open and accountable to the public.
PETER F. NERONHA
By: /s/ Kayla E. O’Rourke
Kayla E. O’Rourke, Esquire
/s/ Michael W. Field
Michael W. Field, Assistant Attorney General
 It is this Office’s understanding that the Complainant was the WHA’s former Personnel Director who had been responsible for maintaining the WHA Board meeting minutes during the period relevant to her APRA request.
 The WHA also argues that certain holidays occurred during the ten-business day timeframe of the APRA request, however, this Office notes that no State or Federal holidays occurred on a business day (nor was a State or Federal holiday observed on a business day) during that period.
 While the Complainant suggests that WHA may have violated R.I. Gen. Laws § 42-46-7(b)(1) by not having “[a] record of all votes taken at all meetings of public bodies, listing how each member voted on each issue * * * available to the public at the office of the public body within two (2) weeks of the date of the vote,” Complainant provides no evidence that she requested and was denied such a document after the two week time period required under the Open Meetings Act.