VIA EMAIL ONLY

February 13, 2023

Mr. Bernard Lefoley

Colleen A. McCarthy, Esquire

Chief Legal Counsel, Executive Office of Health and Human Services

Dear Mr. Lefoley and Attorney McCarthy:

We have completed our investigation into the Access to Public Records Act (“APRA”) complaint filed by Mr. Bernard Lefoley (“Complainant”) against the Rhode Island Department of Health (“RIDOH”). For the reasons set forth herein, we do not find that RIDOH violated the APRA.

Background

The Complainant submitted a complaint to RIDOH against an assisted living residence raising multiple allegations concerning his room and facility staff. Thereafter, the Complainant submitted an APRA request to RIDOH for the following records related to that complaint which he alleges RIDOH improperly denied:

“all documents, emails, phone call records, interoffice memos, pertaining to my formal public charges against Brookdale Cone in Coventry, R.I. about my being left in Rm [XXX] that was vibrating and damaging my health. I would like to receive the report of the investigation that your dept. (R.I. Dept. of Health) stated would be done about my formal public charges against Brookdale Cone of Coventry, R.I.”[1]

Executive Office of Health and Human Services Chief Legal Counsel, Colleen A. McCarthy, Esquire, submitted a substantive response on behalf of RIDOH, maintaining that the singular document responsive to Complainant’s request was exempt from public disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(P)[2] on the grounds that RIDOH’s investigation into the Complainant’s allegations were ongoing and not yet final at the time of the denial. RIDOH asserts that “[t]he Center for Health Facilities Regulation has not completed its investigation into this allegation made by Mr. Lefoley against Brookdale Cone *** Therefore, the investigatory record is not evidencing a final action taken. *** RIDOH considered the information contained in the complaint and came to the same conclusion as the Center for Health Facilities Regulation: this is still an open and unfinished investigation of this complaint.”

RIDOH provided this Office with a copy of the withheld document for in camera review.

The Complainant did not submit a rebuttal.

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 relevant caselaw interpreting this statute.

Unless exempt, all records maintained by a public body are presumed to be public records. See R.I. Gen. Laws § 38-2-3(a). Among other exemptions, the APRA exempts from public disclosure “[a]ll investigatory records of public bodies, with the exception of law enforcement agencies, pertaining to possible violations of statute, rule, or regulation other than records of final actions taken, provided that all records prior to formal notification of violations or noncompliance shall not be deemed to be public.” R.I. Gen. Laws § 38-2-2(4)(P). 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). “The so-called ‘investigatory exemption’ exempts records created or generated by an investigating agency.” Id.

As an initial matter, our review must consider the circumstances surrounding RIDOH’s reasoning for denying access to the responsive records at the time the denial was made. See Newport Daily News v. Department of Public Safety, PR 12-25 (citing Bonner v. United States Department of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (R.B. Ginsburg, J.) (“court review properly focuses on the time the determination to withhold is made ***[t]o require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing”)).[3] Accordingly, we need not make a determination as to whether the records Complainant seeks are now public as that is not before us. The relevant question is whether it was permissible for RIDOH to withhold the requested records on at the time of the denial. See Caldwell v. City of Providence, PR 20-53 (finding no violation where the records requested pertained to an investigation that was ongoing at the time the request was denied).

Although the in camera nature of our review makes in-depth discussion inappropriate, this Office acknowledges that the document in question contains a RIDOH “intake form” setting forth the complaint as purportedly made via phone by the Complainant and additional information regarding the assisted living facility.

The RIDOH argues that the withheld document is exempt under Exemption (P) as the investigation into the Complainant’s allegations – conducted by both RIDOH and the Center for Health Facilities Regulation – is ongoing and not yet final at the time of denial. The Complainant has provided no rebuttal or argument to counter RIDOH’s assertions. Accordingly, we find RIDOH did not violate the APRA when it denied the Complainant’s APRA request. R.I. Gen. Laws § 38-2-2(4)(P); see also Caldwell, PR 20-53. We make no determination as to whether this document (or others) is now publicly available given the passage of time between the denial, the filing of the Complaint, and the issuance of this finding.  

Conclusion

Although this Office has not found that there was violation in this case, nothing within the APRA prohibits an individual or entity from instituting an action for injunctive or declaratory relief in Superior Court as provided in the APRA. See R.I. Gen. Laws § 38-2-8(b). Please be advised that we are closing this 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