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

 

Attorney General

 

 

VIA EMAIL ONLY

 

February 6, 2023

PR 23-08

 

Richard A. Sinapi, Esquir

 

 

Thomas J. Corrigan, Esquire

Senior Legal Counsel, Executive Office of Health and Human Services

 

Re:          Sinapi v. Department of Behavioral Healthcare, Developmental Disabilities and Hospitals

 

Dear Attorneys Sinapi and Corrigan:

 

The investigation into the Access to Public Records Act (“APRA”) complaint filed by Attorney Richard A. Sinapi (“Complainant”) against the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals (“BHDDH”) is complete. For the reasons set forth herein, we find that BHDDH violated the APRA.  

 

Background

 

The Complainant submitted an APRA request to BHDDH seeking the following related to a particular entity, Fellowship Healthcare Services:

 

“1. Any and all ‘Applications for Initial Licensure to Provide Behavioral Healthcare Services’ along with drafts, supporting documentation and communications regarding any initial licensure from Fellowship Healthcare Services related to a Crisis Stabilization Unit in Rhode Island between January 2018 to present.

 

2. Any and all ‘Applications for Licensure Renewal, or to Add a Service or to Add a Site to Provide Behavioral Healthcare Services’ along with supporting documentation and communications regarding any renewal, additional site, or additional service from Fellowship Healthcare Services related in any way to a Crisis Stabilization Unit in Rhode Island between January 2018 to present.

 

3. Any and all ‘Addendums to License Applications’ along with supporting documentation and communications regarding any addendum to license applications from Fellowship Healthcare Services related in any way to a Crisis Stabilization Unit in Rhode Island between January 2018 to present.

 

4. Any and all enforcement actions taken by the Department of Behavioral Healthcare, Developmental Disabilities and Hospitals against Fellowship Healthcare Services including accompanying documents, communications, notice of violations, responses and/or dispositions of any violation of any rule, regulation, license requirements or state law by Fellowship Healthcare Services from July 2016 to the present.”

 

The Complainant alleges that BHDDH violated the APRA by: (1) failing to timely respond to the APRA request; (2) failing to expressly state in its response that no documents were reasonably segregable; and (3) issuing a “blanket denial” of all requested documents pursuant to R.I. Gen. Laws §§ 38-2-2(4)(S) and 40.1-24, et seq.

 

Thomas J. Corrigan, Esquire, Senior Legal Counsel at the Executive Office of Health and Human Services (EOHHS), provided a substantive response on behalf of BHDDH. BHDDH also submitted the documents responsive to the Complainant’s APRA request to this Office for an in camera review. BHDDH concedes that it failed to invoke a twenty (20) business day extension as provided for in the APRA (see R.I. Gen. Laws § 38-2-3(e)) and “provided its final APRA reply eight business days after the initial ten-business-day deadline.” BHDDH maintains that “[t]he violation was not willful, knowing or intentional,” and that the reasons for this lapse include a surge in APRA requests and other pressing matters related to Eleanor Slater Hospital, as well as a staffing shortage.

 

BHDDH also concedes that “it did not literally and explicitly certify that ‘no portion was releasable or was not segregable,’” but asserts in its response to the Complaint that “no portion of the documents was releasable or reasonably segregable,” pursuant to R.I. Gen. Laws § 40.1-24-12.  BHDDH argues that, as a result, the records are exempt under the APRA. See R.I. Gen. Laws § 38-2-2(4)(S).[1] The statute cited by BHDDH (R.I. Gen. Laws § 40.1-24-12) states as follows:

 

Information received by the department through filed reports, inspection, or as otherwise authorized under this chapter, shall not be disclosed publicly in such manner as to identify individuals or facilities and programs, except in a proceeding involving the question of licensure.”

 

BHDDH avers that the information requested by Complainant is confidential pursuant to R.I. Gen. Laws § 40.1-24-12, including because the APRA request specifically sought information regarding identifiable and named entities. BHDDH maintains that it could not successfully de-identify and disclose any potentially segregable documents in a way that would be compliant with R.I. Gen. Laws § 40.1-24-12, as the identity of the subject entity would be apparent.

 

BHDDH provided approximately 800 pages of documents it contends are responsive to Complainant’s request, but exempt from disclosure, for this Office’s in camera review. Although the in camera nature of our review limits our ability to discuss specifics, the withheld documents generally include internal BHDDH communications as well as communications between BHDDH and Fellowship Healthcare Services representatives regarding licensure, applications for renewals, license variances (or expansions or additions), inspection and compliance reports, and corrective action plans, as well as documents related to those communications such as licensing applications, renewals, Division of Licensing and Standards compliance reports, inspection reports, pictures of the facility(ies), meeting minutes and financial statements related to licensing requirements and compliance standards. 

 

We acknowledge Complainant’s rebuttal and BHDDH’s sur-reply.

 

Relevant Law and Findings

 

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 the relevant caselaw interpreting this statute.

  • Failure to Timely Respond to the Request

Pursuant to the APRA, a public body has ten (10) business days to respond in some capacity to a records request, whether by producing responsive documents, denying the request with reason(s), or extending the period necessary to comply. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7. The APRA permits a public body to invoke an additional twenty (20) business day extension for certain reasons set forth in the statute. See R.I. Gen. Laws § 38-2-3(e).

Here, it is undisputed that the BHDDH did not reply to the request until eighteen (18) business days later, which was beyond the initial ten (10) business day period set forth in the statute. It is further undisputed that BHDDH failed to invoke a twenty (20) business day extension. See R.I. Gen. Laws § 38-2-3(e). Accordingly, we conclude that BHDDH violated the APRA when it failed to respond to Complainant’s request within ten (10) business days. See R.I. Gen. Laws § 38-2-7. 

  • Failure to Indicate Whether Documents were Reasonably Segregable

We next turn to the Complainant's allegation that BHDDH failed to state in writing that no reasonably segregable portion of the withheld documents was releasable. Rhode Island General Laws § 38-2-3(b) provides, in relevant part:

“If an entire document or record is deemed non-public, the public body shall state in writing that no portion of the document or record contains reasonable segregable information that is releasable.”

The Rhode Island Supreme Court has held that “every effort should be made to segregate those portions of the requested documents that contain information exempted from disclosure.” Providence Journal Co. v. Convention Center Auth., 774 A.2d 40, 50 (R.I. 2001). See also Rhode Island Center for Justice v. Rhode Island Department of Corrections, PR 20-44.

Given BHDDH’s concession that it “did not literally and explicitly certify that ‘no portion [of the record] was releasable or was not segregable,’” we find that BHDDH violated the APRA by not including in its denial letter the statement required by R.I. Gen. Laws § 38-2-3(b).

  • Withholding All Responsive Documents in Full

In its response to the Complaint, BHDDH argues that “no portion of the record was releasable or segregable” pursuant to R.I. Gen. Laws § 38-2-2(4)(S), which states that “records, reports, opinions, information and statements required to be kept confidential by federal law or regulation, or state law, or rule of court” are exempt from disclosure under the APRA. BHDDH asserts that R.I. Gen. Law § 40.1-24-12 is the state law that renders these documents exempt in full. Rhode Island General Laws § 40.1-24-12 states, in relevant part:

Information received by the department through filed reports, inspection, or as otherwise authorized under this chapter, shall not be disclosed publicly in such manner as to identify individuals or facilities and programs, except in a proceeding involving the question of licensure.”

The Complainant makes two main arguments: (1) responsive information could be redacted so that any information or documents publicly disclosed did not “identify individuals or facilities or programs,” and (2) the foregoing statute only concerns “[i]nformation received by the department,” and as such “any other ‘records, reports, opinions, information and statements’ that were not received by the department, are not exempted by this statute.”  We reject both arguments. 

The Complainant’s four-part APRA request specifically sought various records relating to one facility:  Fellowship Healthcare Services.  Redacting the name of the facility will do nothing to address the prohibition set forth in R.I. Gen. Laws § 40.1-24-12, specifically, that “[i]nformation received by the department *** shall not be disclosed publicly in such manner as to identify individuals or facilities and programs.”  Indeed, the Rhode Island Supreme Court has already determined that records cannot be rendered reasonably segregable by redaction or de-identification when the requested records relate to one specific identifiable entity. See Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 559 (R.I. 1989) (“the report at issue in the present case specifically relates to the job performance of a single readily identifiable individual. Even if all references to proper names were deleted, the principal’s identity would still be abundantly clear from the entire context of the report”).

We also reject Complainant’s argument that while R.I. Gen. Laws § 40.1-24-12 admittedly prohibits the disclosure of “[i]nformation received by the department,” any other “‘records, reports, opinions, information and statements’ that were not received by the department, are not exempted by this statute.”  The problem with this argument is that R.I. Gen. Laws § 40.1-24-12 employs broad language exempting “[i]nformation received by the department,” the exemption is not limited to documents or other tangible items “received by the department,” and all the documents requested by the Complainant in this case contain “[i]nformation received by the department.” 

For example, much of the request seeks applications, addendums and other information pertaining to an application process for an identifiable entity, but our in camera review finds that even documents not received by BHDDH – in other words documents created by BHDDH – contain “[i]nformation received by the department[.]” As related to the Complainant’s fourth request – documents relating to enforcement actions – the relevant provision exempts “[i]nformation received by the department through filed reports, inspection, or as otherwise authorized under this chapter[.]”  R.I. Gen. Laws § 40.1.24-12 (emphasis added).  The applicability of this exemption to “[i]information” received through an “inspection” confirms its broad application in this case.  Additionally, the Complainant seeks various information associated with the application process, but the submission of this information is specifically required and “authorized under this chapter.”  See e.g., R.I. Gen. Laws §§ 40-1-24-3; -4; -6.

While Title 40.1 includes various provisions that may allow certain information to be disclosed in limited circumstances, those circumstances are not applicable in the instant matter. For instance, the statute provides an exemption that permits disclosure “in a proceeding involving the question of licensure,” but an APRA request is not a licensure proceeding and the Complainant has not argued otherwise. In Ravetti v. BHDDH, we found no violation where BHDDH denied the Complainant’s request for information about her cousins’ care while at the Ladd School, pursuant to R.I. Gen. Laws §§ 40.1-5-26, 40.1-2-6 and 40.1-24-12. See Ravetti v. Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals, PR 16-14 (“While Title 40.1 provides various provisions that may allow certain information to be disclosed under certain conditions, the existence of these statutes—by themselves—indicate that the information you have requested is not a public record”).

Accordingly, based upon the record before us, including our in camera review of the withheld documents, we find that BHDDH did not violate the APRA when it denied Complainant’s request pursuant to R.I. Gen. Laws §§ 38-2-2(4)(S) and 40.1-24-12. Notably, our review also finds no reasonably segregable portion of documents that are subject to disclosure.  R.I. Gen. Laws § 38-2-3(b).  We make no determination regarding whether the Complainant may obtain the requested documents outside of the APRA process.

 

 

Conclusion

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).

 

Here, there is no question that BHDDH did not respond to the instant APRA request in a timely manner in accordance with the APRA, nor did BHDDH state that no reasonable portion of the records was available. However, because we have concluded that the documents are exempt in full, and because BHDDH did not charge the Complainant for the time it spent completing its search, retrieval and review, we do not find injunctive relief to be appropriate. 

 

We have also not been presented with sufficient evidence of a willful and knowing or reckless violation. BHDDH represented that its failure was due to staffing shortages and a surge in APRA requests. We note that although BHDDH did not comply with the statutory deadline, it did provide a response within the timeframe that would have been permissible had BHDDH invoked the extension permitted in the statute.  Moreover, although BHDDH failed to explicitly state that no reasonably segregable portion of the records was available, our review confirms that no reasonably segregable portion is subject to disclosure.. However, this finding serves as notice to BHDDH that its conduct violated the APRA and may serve as evidence of a willful and knowing, or reckless, violation in a future similar situation.

 

Although the Attorney General 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 will be closing our file as of the date of this finding.

 

We thank you for your interest in keeping government open and accountable to the public.

 

Sincerely,

 

PETER F. NERONHA

ATTORNEY GENERAL

 

By: /s/ Kayla E. O’Rourke

Kayla E. O’Rourke, Esquire

 

/s/ Adam D. Roach

Adam D. Roach, Special Assistant Attorney General

 

 

 

APRA


[1] We note that BHDDH also cites to three (3) other APRA exemptions in its response to the Complaint: R.I. Gen. Laws §§ 38-2-2(4)(B), 38-2-2(4)(E), and 38-2-2(4)(P). BHDDH’s denial letter to the Complainant invoked R.I. Gen. Laws § 38-2-2(4)(S) and several provisions of R.I. Gen. Laws § 40.1-24 et. seq., but did not invoke the aforementioned statutes found in Title 38. Pursuant to R.I. Gen. Laws § 38-2-7(a), when denying access to records, a public body must “give the specific reasons for the denial” in its response and “except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.” BHDDH did not cite R.I. Gen. Laws §§ 38-2-2(4)(B), 38-2-2(4)(E), or 38-2-2(4)(P) in its original denial, nor did it provide any argument that “good cause” exists for this Office to consider these additional exemptions. Accordingly, this finding is only focused on the application of R.I. Gen. Laws  §§ 38-2-2(4)(S) and 40.1-24-12.

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