| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
February 6, 2023
PR 23-07
Eli Sherman
Claire Richards, Esq.
Executive Counsel
Office of the Governor
RE: Sherman v. Office of the Governor
Dear Mr. Sherman and Attorney Richards:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Eli Sherman (“Complainant”) against the Office of the Governor (“Office of the Governor”). For the reasons set forth herein, we find that the vast majority of the documents at issue in this Complaint are exempt from public disclosure, but several documents were improperly exempted and/or require additional information to make a determination. The withholding of one document – Document 33 – violated the APRA. While injunctive relief might be appropriate, such a remedy can be avoided if the Office of the Governor takes the actions set forth in this finding.
The Complainant, on behalf of WPRI-TV, alleges that the Office of the Governor violated the APRA by improperly withholding and redacting records in response to his September 10, 2021 APRA request. The Complainant’s request sought “all emails containing some and/or all of the following terms: ‘ILO,’ ‘DILO’ ‘ILO Group,’ ‘Julia Rafal-Baer,’ ‘Cerena Parker,’ ‘Mike Magee,’ sent to and from all state emails of employees in the Governor’s Office, including Gov. Dan McKee, between March 2, 2021 and July 19, 2021.” The Complainant cites “inconsistencies between documents redacted by the governor’s office yet provided by other agencies,” as well as a past APRA complaint filed by the Complainant against the Office of the Governor as support for his allegation.[1]
Executive Counsel Claire Richards submitted a Response on behalf of the Office of the Governor. The Office of the Governor states that it “produced approximately 350 pages responsive to the Request … (and) withheld approximately 59 documents that, while responsive, were exempt.” The Office of the Governor argues that any differences as to what it produced and what was produced by a separate entity is attributable to the fact that a public body may, at its discretion, produce a non-public document (even if it is considered non-public under the APRA). Further, the Office of the Governor argues that none of the withheld documents are public. As related by Ms. Richards in response to the Complaint, the Office of the Governor is withholding various e-mails and e-mail attachments pursuant to R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(a), 38-2-2(4)(E), 38-2-2(4)(K), and 38-2-2(4)(M). These withheld documents were provided to this Office for an in camera review, along with a privilege log that assigned a number to each withheld document and a description of the document and the exemption(s) asserted.
The Complainant submitted a rebuttal wherein he avers, among other arguments, that the Office of the Governor disclosed in its Response a document (a one-page document with three e-mails from July 2021), which the Governor’s Office submits was inadvertently withheld in response to the September 10, 2021 APRA request. The Complainant states that this untimely disclosure demonstrates a lack of due diligence on the part of the Office of the Governor in responding to APRA request. The Complainant also contends that there is a discrepancy between “the 135 withheld documents,” which the Governor’s Office referenced in its response to the Complainant’s APRA request and the “58 withheld documents,” which the Office of the Governor referenced in its response to the Complaint.
After completion of the initial briefing in this matter, the Complainant filed a Supplemental submission on January 25, 2022, alleging that in response to a separate APRA request submitted by the Complainant on October 27, 2021, the Office of the Governor produced a document that “should have also been responsive” to his September 10, 2021 APRA request (because it contained the terms “Julia Rafal-Baer” and “DILO,” which were search terms included in his September 10, 2021 request). In response, the Office of the Governor argued that the two APRA requests covered two distinct periods of time. The September 10, 2021 Request covered “between March 2, 2021 and July 19, 2021,” while the October 27, 2021 Request covered “between Jan. 1, 2021 and present” (October 27, 2021). Any documents provided pursuant to the latter request, but not the former, the Office of the Governor argues, is attributable to the difference between these two time-periods for each request. [2]
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 a 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). Unless exempt, a record or document is a public record and must be disclosed. See R.I. Gen. Laws §§ 38-2-2(4), 38-2-3(a).
Two threshold matters require attention. First, we address the Complainant’s assertion of a discrepancy between the “135 documents withheld” versus the “58 documents withheld.” Our review of the privilege log and our in camera review of the withheld documents demonstrates that 58 documents were withheld. For purposes of arriving at this number, the Office of the Governor counted an email and an attachment – if both withheld – as two documents. In other words, if the tenth item on the privilege log indicated an email and an attachment to the e-mail were withheld, the Governor’s Office designated these documents as 10 (the e-mail) and 10A (the attachment to the e-mail). Our in camera review also found multiple instances where duplicative documents were withheld, but designated as separate documents. For example, the following withheld documents are identical: 4A and 19A; 1A and 20A; 11A and 33A; 10A, 26A, and 29A; 27 and 28; 25A and 30A; and 24 and 39. Additionally, Document 6 is reproduced within Document 3 (Document 3 has additional information that Document 6 did not contain); Document 32 is reproduced within Document 31 (Document 31 has additional information that Document 32 did not contain); Document 42 is reproduced within Document 41 (Document 41 has additional information that Document 42 did not contain); and Document 45 is reproduced within Document 46 (Document 46 contains additional information that Document 45 did not contain). In other words, while the Office of the Governor (and the privilege log) indicates that 58 documents were withheld, it is clear that some of these 58 documents were identical and other withheld documents were wholly included within other withheld documents.
Second, as described above, the Complainant requested documents containing, among other features, the term “ILO.” In support of his position, the Complainant explains “[t]he public has a vested interest in understanding how the deal materialized and they are potentially robbed of that opportunity when public documents are unnecessarily withheld.” Based on the asserted public interest, i.e., “understanding how the deal materialized,” it appears the Complainant is focused on documents concerning the process by which the Office of the Governor/State of Rhode Island entered into a contractual agreement with an organization known as the ILO Group. The Complainant’s APRA request, however, is far broader than this contractual engagement process and seeks all documents containing, among other key words or persons, “ILO.” The Governor’s Office interpreted the APRA request according to its plain language and indeed, the vast majority of documents we have reviewed, in camera, have nothing to do with the contractual process but rather concern the substantive work that ILO contractors performed, after the contract was awarded, on behalf of the State.
With this background, the Office of the Governor invoked four exemptions: R.I. Gen. Laws § 38-2-2(4)(A)(I)(a), § 38-2-2(4)(E), § 38-2-2(4)(K), and § 38-2-2(4)(M). We address each batch of withheld documents.
· Emails and Attachments Withheld Under R.I. Gen. Laws §§ 38-2-2(4)(E) and R.I. Gen. Laws § 38-2-2(4)(K)
The Governor’s Office did not violate the APRA when it withheld the vast majority of emails and attachments pursuant to Exemption (E) and Exemption (K). The Governor’s Office describes these emails as “between staff and agencies and/or cabinet members,” and are generally described as being deliberative, preliminary and non-final in nature.
Exemption (E) of the APRA exempts from disclosure “[a]ny records which would not be available by law or rule of court to an opposing party in litigation.” R.I. Gen. Laws § 38-2-2(4)(E). Exemption (E) of the APRA resembles Exemption 5 of the federal Freedom of Information Act (“FOIA”), which exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).[3]
FOIA Exemption 5 has been interpreted as recognizing the common-law deliberative process privilege, and this Office has previously recognized that this privilege is similarly encompassed within R.I. Gen. Laws § 38-2-2(4)(E). Providence Journal v. Executive Office of Health and Human Services, PR 20-01. As explained by the First Circuit, the deliberative process privilege “is designed to safeguard and promote agency decision making processes in at least three ways: [I]t serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationale for a course of action which were not in fact the ultimate reasons for the agency’s action.” Providence Journal Co. v. U.S. Dept. of Army, 981 F.2d 552, 557 (1st Cir. 1992). See also United States Fish and Wildlife Service v. Sierra Club, 141 S.Ct. 777 (2021) (same).
The appropriate inquiry “is whether the agency document was prepared to facilitate and inform a final decision or deliberative function entrusted to the agency.” Providence Journal, 981 F.2d at 560. A document qualifies for nondisclosure under the deliberative process privilege if it is both “predecisional” and “deliberative.” Id. at 557.
“A document will be considered ‘predecisional’ if the agency can (i) pinpoint the specific agency decision to which the document correlates, (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (iii) verify that the document precedes, in temporal sequence, the ‘decision’ to which it relates.” Id. (internal citations omitted).
In addition to being “predecisional,” a document must also be part of the “deliberative process” in order to implicate the deliberative process privilege. Id. at 559. Specifically, “[a] predecisional document will qualify as ‘deliberative’ provided it: (i) formed an essential link in a specified consultative process, (ii) reflect[s] the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.” Id. at 559 (citing National Wildlife Fed'n v. Forest Serv., 861 F.2d 1114, 1118-19 (9th Cir. 1988)).
The United States Supreme Court has explained (in the context of a FOIA case) the policy reasons for recognizing a deliberative process privilege: “[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal quotations and citations omitted). Similarly, the United States Supreme Court has described the deliberative process privilege as furthering the policy of “protect[ing] the decision-making process of government agencies and [particularly] documents reflecting advisory opinions, recommendations and deliberations.” N.L.R.B. v. Sears Roebuck and Company, 421 U.S. 132, 150 (1975) (internal quotations and citations omitted). The United States Supreme Court has also made clear that the deliberative process privilege applies not only to government employees, but also “to communications between Government agencies and outside consultants hired by them.” Klamath Water Users Protective Ass'n, 532 U.S. at 10. As such, the inclusion of ILO consultants in deliberative-process type discussions does not breach the privilege. The Rhode Island Supreme Court likewise recognized that the deliberative process privilege “protects the internal deliberations of an agency in order to safeguard the quality of agency decisions.” In re Comm'n on Judicial Tenure & Discipline, 670 A.2d 1232, 1235 (R.I. 1996).
The APRA also exempts “[p]reliminary drafts, notes, impressions, memoranda, working papers, and work products.” R.I. Gen. Laws § 38-2-2(4)(K). Although the APRA does not define the term “draft,” it is defined in Merriam-Webster dictionary as “a first or preliminary form of any writing, subject to revision, copying, etc.” Black’s Law Dictionary similarly defines the term as “[a]n initial or preliminary version.” Additionally, we have previously noted that the “term ‘working paper’ is undefined by the APRA, but in general the term refers to pre-publication drafts of written work intended to be finalized in the future. Importantly, the term implies that the document will, at some point, be completed.” Shorey v. City of Pawtucket, PR 16-53. Likewise, the “term ‘work product’ is also undefined by the APRA, but it is defined by Black’s Law Dictionary as material ‘prepared by or for a lawyer or prepared for litigation, either planned or in progress.’” Id. (quoting Black’s Law Dictionary (10th ed. 2014)). We have noted that “work product” under Exemption (K) is not necessarily limited to attorney work product and can include, for instance, internal documents authored by non-attorneys that reveal protected opinions or mental thought processes. See Providence Journal v. Office of the Governor, PR 20-08.
Here, we conclude that the following documents fall within Exemption (E) and/or Exemption (K) and are listed on the privilege log as: 1A, 2A, 3, 4A, 5A, 6, 7, 8, 9, 10, 10A, 11A, 12A, 13A, 15A, 16A, 18A, 19A, 20A, 22A, 23A, 25A, 26, 26A, 27, 28, 29, 29A, 30A, 31, 31A, 32, 32A, 34A, 35, 35A, 36, 36A, 37, 38, 38A, 40, 43, 44, 45, and 46. While the in camera nature of our review hinders full discussion, it suffices that the documents falling within these exemptions are draft (nonfinal) documents, documents that evince a work-in-progress, and/or documents that demonstrate a deliberative decision-making process prior to final agency decision, as those terms are defined above.
The cover emails accompanying some of these attachments, some of which the Office of the Governor provided to the Complainant, provide support for our conclusion and evidence that withheld documents include those seeking to clarify or update information from the recipients on deliberative decision-making matters, provide recipients with the opportunity to engage in future follow-up, and generally concern the unexecuted nature of the attachments. These cover emails speak to the “preliminary form” and the “deliberative,” “pre-decisional” nature of the exempted attachments. Within this context, it is clear that the withheld documents consist of “pre-publication drafts of written work intended to be finalized in the future.” See Shorey v. City of Pawtucket, PR 16-53.
There are a few documents that require individualized attention. Document 30 (but not the attachment to Document 30) should not have been withheld, but under the circumstances, we do not find that the Office of the Governor violated the APRA in doing so. Specifically, Document 30 is a one-page document containing two emails, the latter of which was sent on July 13, 2021 at 3:17 PM. While the Governor’s Office withheld Document 30 from disclosure pursuant to Exemption (E) and (K), it produced the same document to the Complainant as Document 25. Similarly, Document 17 was withheld pursuant to Exemption (E), but was then provided to the Complainant (who provided an identical copy of Document 17 to this Office as part of the instant Complaint). See EliSherman.10.25.21APRA.DOCS_Part4(003).pdf. While we do not find that the Office of the Governor violated the APRA in these instances – because identical documents were disclosed to Complainant – this inconsistency is noted, and in the interest of transparency the Governor’s Office should disclose Documents 17 and 30.[4]
· Emails Withheld Under R.I. Gen. Laws § 38-2-2(4)(A)(I)(a)
The APRA exempts “[a]ll records relating to a client/attorney relationship.” R.I. Gen. Laws § 38-2-2(4)(A)(I)(a). By the plain language of the APRA, this provision exempts documents “relating” to the attorney/client “relationship,” which is broader than documents protected by the attorney/client privilege. See Providence Journal v. Executive Office of Health and Human Services, PR 20-01; Harris v. City of Providence, PR 16-33.
Having conducted our in camera review of four withheld documents, we conclude the following: Document 14 may be exempt in whole but requires additional information to make this determination, Document 21 is exempt in whole, Document 33 is not exempt, and Document 34 is exempt in whole. We explain below.
Document 14 falls within the ambit of the attorney-client privilege, however, it is well established that the attorney-client privilege (or the “relationship” as phrased in the APRA) may be waived if a communication is made to a non-state/non-client third party. See Rosati v. Kuzman, 660 A.2d 263, 266 (R.I. 1995) (“Given the nature of the attorney-client privilege, the relevant inquiry focuses on ‘whether the client reasonably understood the conference to be confidential’ notwithstanding the presence of third parties.”). (Emphases in original). Our review of Document 14 reveals that the communications made by and to an attorney with the Department of Administration were made not only to other state employees, but also to an email address for mayorsoffice@northprovidenceri.gov. It is unclear to us whether the transmission to the North Providence recipient breached the attorney-client relationship. If the Governor’s Office believes that disclosure to the North Providence Mayor’s Office did not breach the attorney-client relationship, it should provide a supplemental statement explaining why the document should be exempt from disclosure.[5]
With respect to Document 21, we conclude that this one-page email (consisting of a one-page e-mail sent to two state employees) is exempt as an attorney-client communication. The author of the e-mail is an attorney for the Department of Administration and was reporting on a matter within the attorney’s professional responsibilities in the capacity as an attorney for the Department of Administration. Document 34 is a two-page e-mail, which consists of five (5) e-mail communications, one of which was made in December of 2020 and the other four of which were made in August of 2021. In other words, Document 34 is outside of the “March 2, 2021 [to] July 19, 2021” timeframe established by the APRA request and is non-responsive. Additionally, the latest two communications (made on August 31, 2021 at 4:39 PM and August 31, 2021 at 3:32 PM) are privileged attorney-client communications made to other state employees or consultants hired by the State of Rhode Island. See Klamath Water Users Protective Ass'n, 532 U.S. at 10. The earliest communication (in December of 2020) also represents an attorney-client communication and has none of the responsive terms sought. The remaining two communications forward the December 2020 communication to various persons, including one of which was specifically forwarded to legal counsel.
Lastly, the Governor’s Office withheld Document 33 pursuant to R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(a) and (E). While two attorneys are on this one-page email, this communication does not appear to be to or by an attorney for the purposes of seeking or rendering legal advice. Nor does this document appear to be “deliberative” in nature. Since Document 33 does not represent a communication regarding the providing or receipt of legal advice, nor is Document 33 deliberative in nature, we conclude Document 33 should be disclosed in full.
· E-mails and Attachments Withheld Under R.I. Gen. Laws § 38-2-2(4)(M)
Finally, we turn to the four emails and attachments that the privilege log identifies under Exemption (M), which are Documents 39, 41, 42, and 42A. Rhode Island General Laws § 38-2-2(4)(M) exempts “[c]orrespondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.” Even though each document identified above is a correspondence to or from the Governor – and thus seems to qualify under Exemption (M) – multiple issues require untangling.
We begin with the principle that “[e]xcept 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). Here, the Governor’s Office’s October 25, 2021 denial noted that only one of these four document was withheld pursuant to Exemption (M). No “good cause” argument has been made to this Office concerning why this Office should now consider the Exemption (M) arguments with respect to the other three (3) documents, nor has this Office been directed to which of the four documents the one timely invocation of Exemption (M) was asserted and should be considered.
To be sure, additional exemptions were raised for each document, but here too we have unanswered questions. Documents 24 and 39 are identical e-mails dated June 27, 2021 and contain information that is similar in nature and found in other pre-June 27, 2021 documents that we have determined are exempt from disclosure as a draft. The Governor’s Office exempted Document 39 under Exemptions (K) and (M) and exempted Document 24 under Exemptions (E) and (K). But Document 22 – an email dated June 22, 2021 that the Governor’s Office disclosed to the Complainant – references material similar to the information contained within Documents 24 and 39. Document 22 (again, which is dated June 22, 2021, i.e., 5 days before Documents 24 and 39) gives the impression that the material referenced in Document 22 will soon become final; in other words, no longer a draft eligible under Exemptions (E) or (K). While the material in Documents 24 and 39 may very well still be a draft, the fact that Documents 24 and 39 were authored several days after the material in Document 22 appeared to be near-final leaves us questioning whether Documents 24 and 39 are a draft or a final work-product. On this record, we are not prepared to say so.
Documents 41 and 42 were withheld pursuant to Exemptions (E), (K), and (M); and Document 42A was withheld pursuant to Exemptions (K) and (M). Document 42A is exempt from disclosure as a draft pursuant to Exemption (K). Document 42 is identical to Document 23, the latter of which the Governor’s Office has already publicly disclosed. In the interest of transparency, the Governor’s Office should disclose Document 42.[6] Document 41 is virtually identical to Documents 23 and 42, but for a brief additional reply e-mail. Should the Governor’s Office continue to maintain that this brief additional reply e-mail in Document 41 is exempt from public disclosure, the Governor’s Office should provide a supplemental statement addressing the basis for continued withholding, which should include but is not limited to, whether “good cause” exists to consider the multiple assertions of Exemption (M), the applicability of Exemptions (E) and (K), and whether any asserted exemption has been waived by the disclosure of Document 23.
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). 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).
Although seeking injunctive relief may be appropriate, we prefer to first allow the Office of the Governor an opportunity to comply with this finding. In sum, the Governor’s Office should disclose Documents 17 and 30 since both documents are identical to documents previously disclosed. Documents 17A (first page only) and 42 should also be disclosed since these documents (or portions thereof) are identical to documents previously disclosed. The non-disclosure of these documents did not violate the APRA since identical documents were previously disclosed.
Documents 24 and 39 are identical and continue to be withheld by the Office of the Governor. As described herein, we have questions concerning whether the material in Documents 24 and 39 constitutes a draft or a final work product. If the Governor’s Office continues to withhold these two documents, it should provide a supplemental statement supporting its position. Document 41 has already been disclosed in large part, except for a brief additional reply email. If the Governor’s Office continues to withhold this brief additional reply email, it should express its position in a supplemental statement. Similarly, if the Governor’s Office continues to withhold Document 41 it should provide a supplemental statement supporting its position. Absent a supplemental statement from the Governor’s Office, we expect that these documents will be disclosed.
The Governor’s Office must provide a supplemental statement concerning its efforts to conduct a search for responsive records and explain why its search failed to locate the document disclosed in its Response (the July 2021 email) and why its search failed to locate the document disclosed in response to the October 27, 2021 APRA request (the March 3, 2021 and March 4, 2021 emails). See supra footnote 2. We reserve judgment at this time whether the non-disclosure of these documents (or portions therein) violated the APRA.
Lastly, we conclude that the Governor’s Office violated the APRA when it failed to disclose Document 33. This Document should be disclosed.
The Governor’s Office should provide its supplemental statement within ten (10) business days of the issuance of this finding. Any documents provided to the Complainant should also be provided to this Office. If the Complainant wishes to provide a supplemental statement, the Complainant may do within five (5) business days of receiving the Governor’s Office response. We will reserve our finding on any remaining issues until after the supplemental statement(s) are received.
This Office’s role under the APRA requires us to apply the existing law and determine what documents must be disclosed. We acknowledge the important transparency interests identified by the Complainant and remind public bodies that the APRA is a floor and not a ceiling and that in most cases a public body may, in its discretion, provide access to an exempt document (or portions thereof) in favor of government transparency, consistent with the spirit of the APRA. Although this Office encourages public bodies to consider disclosing records even when they are subject to an exemption, failing to provide access to permissibly exempted documents does not violate the APRA.
We thank you for your interest in keeping government open and accountable to the public.
Sincerely,
PETER F. NERONHA
ATTORNEY GENERAL
By: Adam D. Roach
Adam D. Roach
Special Assistant Attorney General
[1] The reference to inconsistencies refers, first, to a June 8, 2021 email sent from the Governor’s Senior Advisor on Education to the Governor. The Complainant relates that the June 8, 2021 e-mail was disclosed by the Department of Administration but redacted and/or withheld by the Office of the Governor. While we address this document, infra, it should be noted at the outset that the APRA represents a floor to disclosure and not a ceiling. In other words, it is possible that a document may be exempt from disclosure, and one agency invokes the exemption while another agency, in its discretion, declines to invoke the exemption and instead provides public access to the document. Such a result, by itself, does nothing to suggest that the withholding agency has violated the APRA. Second, the Complainant suggests the instant Complaint is supported because the Complainant had filed a prior unrelated APRA complaint against the Office of the Governor. This Office subsequently adjudicated this “prior” complaint, which found the Governor’s Office cited an incorrect rationale for withholding the requested document, but that the APRA permitted nondisclosure of the document. See Sherman v. Office of the Governor, PR 22-45. Our prior determination plays no role in whether or not the Governor’s Office violated the APRA in this instance.
[2] The Document submitted by Complainant concerns several emails and attachments to those emails. Some of these emails were prior to March 2, 2021, which was the start date for documents responsive to the September 10, 2021 Request, but two emails were after the March 2, 2021 date, i.e., e-mails dated March 3, 2021 and March 4, 2021, both of which included Michael Magee, which was a responsive term to the September 10, 2021 Request. It is unclear to us why these two e-mails were not produced pursuant to the September 10, 2021 Request. As set forth, infra, we ask the Governor’s Office to provide a supplemental response with respect to the reasonableness of their search and why these records were not produced earlier.
[3] We reference FOIA because the Rhode Island Supreme Court has made clear that “[b]ecause APRA generally mirrors the Freedom of Information Act * * * we find federal case law helpful in interpreting our open record law.” Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 558 n.3 (R.I. 1989).
[4] While we recognize that identical documents have already been disclosed to Complainant, the documents we have reviewed in camera were numerically identified in the upper right-hand by the Governor’s Office. We believe that requiring disclosure of the document submitted for our review – which were numerically numbered by the Governor’s Office – is consistent with transparency principles and will enable Complainant to confirm that the withheld document is indeed identical to a document previously disclosed. These documents should be disclosed with the privilege log number included.
[5] Document 14 was also withheld pursuant to R.I. Gen. Laws §§ 38-2-2(4)(E) and (4)(K). We do not eliminate the possibility that Document 14 may not fall within the attorney-client exemption, but could still fall within the deliberative process privilege (if not waived) or Exemption (K). We leave this question open at this time and await the Governor’s Office supplemental argument, if any.
[6] The first page to Document 17A is also identical to Documents 23 and 42 and should be disclosed. See also supra. The remaining three pages to Document 17A were properly exempted pursuant to Exemption (K).