VIA EMAIL ONLY

February 8, 2023

Asa Davis

James P. Marusak, Esquire

Solicitor, Town of Exeter

Dear Mr. Davis and Attorney Marusak:

We have completed our investigation into an Access to Public Records Act (“APRA”) Complaint filed by Mr. Asa Davis (“Complainant”) against the Town of Exeter (“Town”).  For the reasons set forth herein, the Office of the Attorney General (“Office”) finds that the Town violated the APRA.

The Complainant submitted an APRA request seeking the following: “[a]t last night’s meeting Jim Marusak mentioned a letter he sent to DEM outlining the town’s position, and had not received a response. Pursuatnt [sic] to APRA, I’d like a copy of that letter.”[1] The Town responded by denying Complainant’s request, citing the following APRA exemptions:

“1. Section 38‐2‐2‐(4)(P) ‐‐Investigatory records pertaining to possible regulatory violations;

2. Section 38‐2‐2(4)(K) – preliminary legal and/or technical memoranda, working papers, and/or work products; and

3. Section 38‐2‐2(4)(S) – records required to be kept confidential by state law and rule of court.

Not to mention that the communication falls under attorney/client privilege information and is therefore confidential.”

Dissatisfied with the Town’s response, the Complaint to this Office followed alleging that the “attorney/client privilege does not apply” as the “letter was sent to a third party (DEM).” (Parenthetical in original). The Complainant also argues that R.I. Gen. Laws § 38-2-2(4)(K) does not apply as “this was correspondence sent to DEM, as Marusak described, this is a finished document, not ‘preliminary’ or ‘working’.” Next, Complainant maintains that R.I. Gen. Laws § 38-2-2(4)(P) is inapplicable because “[t]his can hardly be considered an investigatory record if it is “outlining the town’s position” as Marusak described, and it is occurring well after the formal notification of violations and noncompliance, and well after the town council presidents [] have already told the DEM the town intends to fix all violations.” Finally, Complainant also takes issue with the Town’s invocation of R.I. Gen. Laws § 38-2-2(4)(S) and asks the Town to “provide citations.”

The Town submitted a substantive response through its Solicitor, James P. Marusak, Esquire, including an affidavit from Town Council President, Daniel Patterson, and almost 100 pages of exhibits, including the subject Letter for this Office’s in camera review.

The Town states that the Letter was sent to DEM on August 24, 2021, as part of ongoing correspondence between the Town and DEM regarding certain wetland enforcement actions initiated by DEM against the Town. The Town maintains this Letter was sent to DEM “with strict confidentiality assertions and notices.” As stated above, the Town claimed four (4) APRA exemptions to withhold the Letter from public disclosure: R.I. Gen. Laws §§ 38-2-2(4)(A)(i)(a), (K), (P) and (S).

The Town first argues that the Letter is exempt from disclosure because it falls within the attorney-client relationship. See R.I. Gen. Laws § 38-2-2(4)(A)(i)(a). The Town claims that the Letter is “a protected document addressing very sensitive ongoing investigatory, litigation and enforcement matters relating directly to the attorney-client relationship between the Town and its Solicitor.” In support, the Town cites a recent finding by this Office, DiPalma v. Executive Office of Health and Human Services, PR 21-23, in which “all documents withheld [were] either sent/copied to, or generated by, legal counsel...and relate to an attorney/client relationship.” The Town maintains that “[t]he entirety of the letter dated August 24, 2021, was compiled by the Town Solicitor in his capacity as the legal attorney for, and advisor to, the Town and its officers and departments. No portion of the communication forwarded to DEM by the Town Solicitor is properly segregable as the communication, in its entirety, relates to the attorney/client relationship.”

Next, the Town argues that the Rhode Island Supreme Court Rules of Professional Conduct prohibit the Solicitor from “reveal[ing] information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation.” R.I. S. Ct. R. Art. V, Rule 1.6(a). The Town maintains that “the fact that the information was necessarily shared with the DEM, the regulatory body issuing the Notice to the Town, does not remove the obligation of confidentiality *** As stated by the Supreme Court, the mere presence of a third party does not per se constitute a waiver of confidentiality. *** Direct communication by the Solicitor with DEM was obviously ‘authorized in order to carry out the representation’ as referenced in Rule 1.6(a).” (Internal citations omitted). The Town states that it “has not waived the privilege.”

The Town also argues that the Letter is exempt from public disclosure pursuant to Exemption (K) because “the matters discussed and referenced therein and the legal opinions and positions outlined by the Solicitor on behalf of the Town are the ‘work products’ of the attorney.” The Letter “reveals that the entire communication consists of the Town Solicitor’s work product created in connection with his legal engagement in the ongoing DEM enforcement actions.”

Finally, the Town also invokes Exemption (P) as grounds to withhold the Letter in its entirety, arguing that:

“[T]he subject letter of the Town Solicitor resulted from, and was written in the context of, two inextricably related governmental investigations. One investigation was the Town Solicitor’s factual and legal investigation conducted for the Town Council attendant to addressing the DEM Notices of Intent to enforce violations. The second investigation involved the violations and notices of intended enforcement being actively conducted by the Department of Environmental Management ‘Office of Compliance and Inspection’ in its pending action.”

The Town maintains that “the discussions and related factual and legal investigations and negotiations are ongoing as to the grounds, nature, extent and potential resolution of the alleged violations.”

We acknowledge Complainant’s rebuttal.[2]  

R.I. Gen. Laws § 38-2-2(4)(A)(i)(a) - Attorney-Client Relationship Exemption[3]

The APRA exempts from disclosure documents that “relate to the attorney-client relationship.” R.I. Gen. Laws § 38-2-2(A)(I)(a). At the very least, this exemption “encompasses any documents that would be subject to the attorney-client privilege,” but is “broader than the privilege that would be available in court.” Providence Journal v. Executive Office of Health and Human Services, PR 20-01.

“The general rule is that communications made by a client to his attorney for the purposes of seeking professional advice, as well as the responses by the attorney to such inquiries, are privileged communications not subject to disclosure.” State v. Von Bulow, 475 A.2d 995, 1004 (R.I. 1984). See also Hickman v. Taylor, 329 U.S. 510-11 (1947) (“In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.”).

Importantly, “the attorney-client privilege may be waived through disclosure of a confidential communication to a third party.” von Bulow, 475 A.2d at 1005. “However, the mere presence of a third party per se does not constitute a waiver thereof.” 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. Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir.1984) (quoting McCormick on Evidence, § 91 at 189 (1972); see von Bulow, 475 A.2d at 1005 (communication is privileged if expressly intended to be confidential). “Therefore, the identity of the third party becomes relevant in aiding such a determination.” Rosati, 660 A.2d at 267; see e.g., State v. Juarez, 570 A.2d 1118, 1120 (R.I.1990) (presence of polygraph examiner at attorney-client meeting failed to waive privilege as examiner was agent of attorney).

The Town argues that, although the Letter was sent to DEM, the Town did not waive the attorney-client privilege or otherwise relinquish its right to keep the Letter and its contents confidential. The Town relies on Rosati to support its contention that the fact that the Town sent the Letter to DEM does not dissolve the attorney-client privilege; however, the Town’s reliance on this decision is misplaced. The Court in Rosati determined that the Defendant was bound by the attorney-client privilege and enjoined from speaking on matters learned during the course of representing – or assisting in the representation of – the Plaintiff because the Defendant was an agent of the Plaintiff’s primary attorney. See Rosati, 660 A.2d at 266. The Court also held that the presence of Plaintiff’s parents as “invaluable confidants” in meetings between Plaintiff and his attorneys did not invalidate the privilege. Id. at 67.

Here, the Town has not argued that DEM has an agency relationship with the Town or share a common interest for which the DEM could be considered an agent or otherwise intrinsically connected to the attorney-client relationship between the Solicitor and the Town. Rather, based on the record before us, the DEM is clearly a third-party state enforcement agency seeking to enforce remedial requirements for alleged environmental violations.

The Town also cites to this Office’s prior finding in DiPalma v. Executive Office of Health and Human Services, PR 22-12 to support its position that the Letter relates to an attorney-client relationship because it was “sent to … or generated by legal counsel.” However, DiPalma is distinguishable from the facts here because the records at issue in DiPalma were exchanged, sent and/or copied to EOHHS legal counsel and its outside legal counsel, acting as its agent related to a specific issue. Here, the Letter, although certainly generated by the Town’s Solicitor, was shared with a third-party not associated with the Town.

This Office has previously found that documents were properly withheld under Exemption (A)(i)(a) when they had been sent from Town employees to the Town Solicitor for the purpose of seeking legal advice. See Finnegan v. Town of Scituate, PR 19-22. In Finnegan, no third-party had been included in the communications. See id.; see also Murphy v. Town of North Smithfield, PR 12-11 (“[b]ased upon the above exemption [(A)(i)(a)], as well as the case law from the Rhode Island and United States Supreme Courts, we must conclude that to the extent that responsive documents involve correspondence between legal counsel and his client, i.e., the Town, and were not disclosed to a third party, it is exempt from public disclosure”).

Accordingly, based upon the record before us, as well as judicial precedent, we find the Letter is not protected by the attorney-client relationship and thus Exemption (A)(i)(a) is inapplicable.

As we have determined that the Letter falls outside the attorney-client privilege and Exemption (A)(i)(a) does not apply to protect it from public inspection, the Town’s Rules of Professional Conduct/Exemption (S) argument fails for the same reason.[4]  

R.I. Gen. Laws § 38-2-2(4)(K) - Work Product Exemption

The Town argued that the Letter also falls under Exemption (K) because it constitutes attorney work product. Exemption (K) protects from public disclosure “preliminary drafts, memoranda and work product.” 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)).

Although the Letter was undisputedly prepared by the Town Solicitor, based upon the record before us, the withheld Letter was actually sent to DEM and does not constitute a “preliminary draft.” Additionally, we were not presented with evidence demonstrating that the Letter constitutes work product. Although the definition of “work product” under Exemption (K) is not limited to attorney work product, the Letter at issue here constitutes final communications sent between the Town and a third-party (DEM), not internal communications that reveal protected opinions or thought processes. See Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (“Work product protects mental processes of the attorney, while deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”) (internal citations omitted); Crowe Countryside Realty Associates Co. LLC v. Novare Engineers, Inc., 891 A.2d 838, 842 (R.I. 2006) (noting that work product encompasses attorney opinions and mental processes). As such, we conclude that the Letter sent from the Town to DEM is not exempt under Exemption (K). See Providence Journal v. Governor’s Office, PR 20-08 (emails between the Governor’s Office and IGT constituted final emails and were not exempt under Exemption (K)); see also Handy Law v. Coastal Resources Management Council, PR 18-25 (“Indeed, because the withheld documents are emails between CRMC and a third party, they do not constitute ‘working papers’ or ‘work products’”).[5]

R.I. Gen. Laws §38-2-2(4)(P) - Investigatory Records Exemption

Lastly, the Town argued that the requested Letter is exempt under R.I. Gen. Laws § 38-2-2(4)(P), which exempts “all investigatory records of public bodies.” The Town maintains that the Letter was produced in response to two (2) ongoing investigations – one by DEM and one by the Solicitor into DEM’s allegations.

In Providence Journal Co. v. Rhode Island Housing, the Superior Court defined investigatory records as “those records which originate in or are generated during the course of an investigation concerning the violation of some law, whether the investigatory body is an independent law enforcement agency or an in-house investigatory body of some public agency.” No. P.C. 85-1412, 1986 WL 714235, at *5 (R.I. Super. Feb. 19, 1986).

Here, we conclude that the Letter is not an “investigatory record[].”  Based on our in camera review, the Town states at the outset of the Letter that it is responding to DEM’s “NOV,” which is a “Notice of Violation” described by DEM as “a formal notice of a suspected violation issued in accordance with R.I.G.L. §§ 42-17.1-2(u)(1) and 42-17.6-3***  [which] specif[ies] a reasonable deadline or deadlines by which the person shall come into compliance with the requirements described in the NOV. An NOV may allow a person to submit a written proposal setting forth how and when that person proposes to achieve compliance.”[6] (Emphases added).  An NOV also has a formal appeals process and follows informal notices, or “warning letters” by DEM. In other words, by the time the Letter was written, DEM’s investigation had concluded and it issued a NOV.

Although the Solicitor’s investigation into DEM’s allegations may be ongoing, we have not been presented with sufficient evidence that the Letter itself constitutes an “investigatory record” within Exemption (P). This Office has previously found that documents prepared by a Solicitor related to an ongoing investigation and shared only with a Town Council were exempt under Exemption (P). See Damon v. Town of Middletown, PR 22-12 (withholding emails and attachments between Town Solicitor, Town Council and outside counsel containing analysis and characterization of the matter being investigated, but also noting that the Office expressed no opinion on whether the documents were independently public records as originally maintained). However, the Town has not provided any case law to support its position that correspondence to a third-party state enforcement agency in the context of an administrative enforcement action, particularly after an NOV has been issued, falls within the ambit of Exemption (P).  Indeed, the Letter is more properly characterized as a legal memorandum or the legal position of the Town, rather than an “investigatory record[].”

As such, based upon the record before us, our in camera review, and Superior Court guidance, we find the Letter does not constitute an “investigatory record” within Exemption (P).

Having determined that each of the exemptions the Town invoked to withhold the Letter from public disclosure fail, we conclude the Town violated the APRA.