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
April 7, 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 reviewed the supplemental submissions filed by the Woonsocket Housing Authority (“WHA”) and the Complainant in connection with the above-referenced Access to Public Records Act (“APRA”) matter, which included six (6) complaints filed against the WHA by the Complainant. For the reasons set forth herein, we decline to file a lawsuit against the WHA for a willful and knowing, or reckless violation of the APRA subject to certain conditions discussed herein.
Prior Finding, PR 23-05
We incorporate our prior finding, PR 23-05, and briefly summarize it as follows:
The Complainant submitted six (6) APRA complaints against the WHA from December 16, 2021 through August 17, 2022 related to various APRA requests she submitted to the WHA and was dissatisfied with the response. Based upon the record before us, we determined the WHA violated the APRA in connection with three (3) complaints: December 16, 2021 for failing to indicate that it did not maintain any additional responsive documents; January 6, 2022 by failing to timely respond to the Complainant’s request and by failing to indicate whether any reasonably segregable portion of the December 17 open session Zoom meeting minutes were available; and February 15, 2022 by failing to timely respond to the Complainant’s request.
We also identified outstanding issues in connection with Complainant’s August 17, 2022 complaint wherein Complainant alleged the WHA violated the APRA by failing to provide all records responsive to the Complainant’s request for meeting transcripts. Based on the record before us, we were unable to determine whether a violation occurred and, instead, directed the Complainant to specify which meeting transcripts she alleges are “missing” or contain “missing” pages and for the WHA to respond addressing Complainant’s concerns and to resolve any outstanding issues or submit a supplemental filing to this Office addressing the same.
Accordingly, we directed the WHA to produce any reasonably segregable portion of the December 17 meeting minutes or, if none is available, to provide this Office with a brief supplemental submission stating why there are no reasonably segregable portions of the December 17 meeting minutes, 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.
The WHA was also directed to address whether the violations found in PR 23-05 related to the December, January and February complaints were willful and knowing, or alternatively, reckless.
Regarding the August 2022 Complaint (regarding meetings transcripts), the Complainant submitted the following to this Office on January 31, 2023, copying legal counsel for the WHA, to clarify her issues:
“Detailed in the response, regarding the Sixth Complaint, the WHA failed to provide entire transcripts of the BOC meetings.
I have attempted to forward these emails, but the size of the emails prohibit it from being sent. I have added in the additional emails not discussed in the letter dated 1/25/23, but referenced in my complaint.
April 21, 2022 -estimated 56 pages omitted – some pages in sequence many pages not included
May 19, 2022 – estimated 30 pages omitted – no certification page provided and runs into another transcript
June 14, 2022 – estimated 87 pages withheld
July 8, 2022 – estimated 20 pages withheld
Some transcripts had all the pages, some missing half the document, some missing pages here and there and the WHA remained unresponsive to any follow up communication regarding the omission. The WHA responds after receiving a complaint from the RIAG’s office. REPEATEDLY.”
The WHA submitted its first supplemental response on February 8, 2023, which included an affidavit from WHA Executive Director Milios.
Regarding the three violations: December 2021 and January and February 2022, the WHA offered a conclusory attestation that “[t]he violation found was not willful and knowing, or reckless.” The WHA also provided a transcript of the December 17 open session meeting, removing the section containing the WHA executive session and arguing that “this was an innocent mistake” and “the exemption should not be waived.” Notably, the WHA did not invoke any exemption to withhold the executive session portion of the meeting.
The WHA also attests that the Complainant “did not contact [Executive Director Milios]” regarding the August 2022 complaint transcript issues so the WHA believed this matter to be resolved.
Dissatisfied with the WHA’s supplemental response, this Office requested additional information from the WHA addressing its failure to provide a substantive argument regarding whether the violations found were willful and knowing, or reckless, its failure to invoke any exemption related to the executive session portion of the December 17 meeting, and its failure to respond to the Complainant’s January 31, 2023 clarification regarding the meeting transcripts as outlined above and as sent to Attorney Marcus, WHA legal counsel.
In a second supplemental submission, the WHA states that Executive Director Milios did not receive a communication from the Complainant concerning the issue with the allegedly incomplete transcripts, nor could Attorney Marcus “find any such email from Ms. Lapierre.” The WHA did not substantively address the transcript issue in its second supplemental response despite this Office providing the Complainant’s clarifying email to Attorney Marcus on January 31, 2023, as well as providing additional copies of the Complainant’s clarifying email to Attorney Marcus on February 9, 2023. Despite the WHA maintaining that it did not receive an email directly from the Complainant, it does not deny that it received a copy of the Complainant’s email from this Office on February 9, 2023.
The WHA’s second supplemental submission also neglects to address its failure to invoke any exemption to withhold or redact a portion of the December 17, 2021 meeting minutes. We also note that the Complainant’s request related to the December 17, 2021 meeting was specifically for the “ZOOM file” and the WHA provided only a typewritten transcript of the meeting, without providing any argument or evidence that the WHA is unable to provide the Zoom file for this meeting.
Finally, the WHA contends that the violations found should not be considered willful and knowing, or reckless, because “Ms. Milios was still relatively new to the Interim Executive Director post and WHA was still without legal counsel. The above attestation shows Ms. Milios’s good faith laymen’s efforts to comply with Ms. Lapierre’s APRA requests and do not constitute willful or reckless conduct.” The WHA also argues that the “[C]omplainant has not provided any evidence that the WHA intentionally disregarded the RI APRA.”
We acknowledge Complainant’s supplemental rebuttal wherein she argues, inter alia, that the WHA has still failed to address her allegation that it has failed to provide all records responsive to her request for meeting transcripts and the Zoom file for the December 17, 2021 meeting. The Complainant also argues that “Ms. Milios being new is not a defense for repeated violation of the law.”
Based upon the evidence presented, we believe injunctive relief is appropriate because the WHA has again failed to address whether it maintains all transcripts (and pages of transcripts) responsive to the Complainant’s August 17, 2022 request. The WHA has also again failed to address whether it is able to provide the Zoom file for the December 17, 2021 meeting, nor has the WHA asserted whether there is “good cause” for any part thereof to be withheld from public disclosure. See R.I. Gen. Laws § 38-2-7(a) (“Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.”). Accordingly, the WHA must provide all outstanding transcripts and/or pages of transcripts responsive to the Complainant’s August 17, 2022 request as well as the Zoom file for the December 17, 2021 meeting to the Complainant within ten (10) business days of the date of this filing, copying this Office. The WHA must also provide an affidavit to this Office attesting that all records responsive to the Complainant’s January 6, 2022 request (the Zoom file for the December 17, 2021 meeting) and August 17, 2022 request (the various transcripts) have been provided. The records must be provided to the Complainant at no cost. See R.I. Gen. Laws § 38-2-7(b) (“All copying and search and retrieval fees shall be waived if a public body fails to produce requested records in a timely manner”).
Additionally, we believe the case for a willful and knowing, or alternatively reckless violation could be demonstrated in Superior Court. This conclusion is reached, at least in part, based upon the WHA’s woeful responses. Nor are we convinced by the WHA’s argument that the WHA had no legal counsel to consult with from December 2021 through August 2022 or that Ms. Milios was “relatively new” to the position and therefore unfamiliar with the APRA for the eight-month period that spans Complainant’s requests.
Based upon this Office’s independent investigation, Ms. Milios was appointed Interim Executive Director of the WHA in October 2021. We also understand that the WHA had legal counsel – Attorney Michael Marcello – through at least December 16, 2021 (see Footnote 1) and that Attorney Timothy Cavazza of the firm Whelan, Corrente and Flanders, LLP was appointed interim legal counsel on December 28, 2021. We also note that as of February 16, 2023, Ms. Milios resigned her position as Interim Executive Director of the WHA.
We are also deeply concerned that the WHA has failed to comply with R.I. Gen. Laws § 38-2-3.16, which provides:
“Not later than January 1, 2013, and annually thereafter, the chief administrator of each agency and each public body shall state in writing to the attorney general that all officers and employees who have the authority to grant or deny persons or entities access to records under this chapter have been provided orientation and training regarding this chapter.”
Based upon this Office’s records, the only certification form we have on file for the WHA was submitted in August 2021 on behalf of the Complainant who undisputedly no longer works for the WHA. No such certification form was ever submitted to this Office on behalf of Ms. Milios.
While we acknowledge that the WHA has faced a years-long barrage of staffing issues which have been the subject of much media attention that may have contributed, at least in-part, to the violations, we also note the inconsistencies in the WHA’s arguments and the obligation that all public bodies must comply with state law. The WHA’s failure to resolve the outstanding transcript issue described herein (even after this Office forwarded the Complainant’s correspondence to the WHA’s legal counsel) is glaring and the WHA’s missteps are numerous.
Pursuant to the APRA, the Superior Court may assess civil fines of $2,000 for each willful and knowing violation and $1,000 for each reckless violation of the APRA. See R.I. Gen. Laws § 38-2-9(d). Assuming the WHA complies with our remedial directives set forth in this finding, however, we will not file a lawsuit seeking civil penalties, which we are mindful would ultimately be paid from the public fisc. We believe the public interest is better served in ensuring the WHA’s prompt compliance with the APRA.
As such, we direct the WHA within ten (10) business days to take the following measures:
1) As discussed above, provide Complainant with all outstanding transcripts and/or pages of transcripts responsive to Complainant’s August 17, 2022 request and submit an attestation that all documents have been provided to this Office.
2) As discussed above, provide Complainant with the Zoom file for the December 17, 2021 meeting or a supplemental submission, in affidavit form, addressing why the file cannot be provided and whether any “good cause” exists to withhold any portion(s) of the Zoom file. Given the opportunities – and failures – for the WHA to already provide “good cause,” we are strongly disinclined to find “good cause” at this late juncture. A copy of the attestation or any other document should also be provided to this Office.
3) Have any members who are responsible for APRA compliance watch the APRA portion of this Office’s 2022 Open Government Summit training, which is available on our website: http://www.riag.ri.gov/CivilDivision/OpenGovernmentUnit.php. The WHA must provide a certification to this Office that each member received the virtual training in accordance with R.I. Gen. Laws § 38-2-3.16.
4) Provide this Office with a detailed account of the steps it has taken and/or intends to take to educate its members on, and ensure future compliance with the APRA’s requirements, including implementing a written policy outlining those requirements and identifying the appropriate person(s) by name or title who are responsible for carrying them out. See R.I. Gen. Laws § 38-2-3(d).
a. We also note that as of March 16, 2023, the WHA’s website still lists Ms. Milios as the appropriate contact to whom public records requests are submitted. The WHA should update this as soon as possible given Ms. Milios’ February 16, 2023 resignation.
Although this Office has grounds to file a lawsuit requesting the Superior Court to assess civil penalties for each willful and knowing, or reckless APRA violation, this Office will refrain from doing so if the WHA complies with these remedial steps.
The WHA is on notice that the conducted discussed in Lapierre v. Woonsocket Housing Authority, PR 23-05 violates the APRA and that this finding may serve as evidence of a willful and knowing, or reckless violation in any similar future situation. Should the WHA be found to have committed a similar APRA violation in the future, this Office will be mindful of this history and the multiple admonishments that the WHA has now received regarding APRA violations.
Although the Attorney General will not file suit in this matter at this time, assuming the WHA’s compliance with this finding, 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).
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