VIA EMAIL ONLY

February 17, 2023

Mr. Paul Pontarelli

Deborah Buffi, Esquire

Associate Director/Acting Deputy Director, Department of Children, Youth and Families

Dear Mr. Pontarelli and Attorney Buffi:

We have completed an investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Paul Pontarelli (“Complainant”) against the Department of Children, Youth and Families (“DCYF”). For the reasons set forth herein, we find that the DCYF did not violate the APRA.

The DCYF denied Complainant’s request and withheld all responsive records in full pursuant to three (3) exemptions: R.I. Gen. Laws §§ 38-2-3(h)[1], 38-2-2(4)(C)[2] and (4)(S).[3] The DCYF stated that documents requested “would require significant reorganizing and compiling” and that there are state and federal laws that prohibit disclosure of the information Complainant sought.

Complainant submitted an administrative appeal to DCYF Acting Director, Kevin Aucoin, arguing that, “DCYF submits the records I have requested, without redaction, to the Commissioner of Education and local educational agencies as attachments to hearing requests.” The Complainant again iterated his willingness to “accept the requested records redacted in their entirety except for the date.” Acting Director Aucoin affirmed the initial response from the DCYF and determined “that those documents requested are not subject to public inspection [and] are confidential and exempt.”

Dissatisfied with the DCYF’s response, the Complaint to this Office followed wherein Complainant argued that:

“Because DCYF provides full, unredacted copies of the requested records to the RI Department of Education [RIDE] Legal Office and school district attorneys and their staffs, who in turn share the full, unredacted records with school district administrators, attendance officers, and special education administrators and service providers, DCYF is estopped from claiming confidentiality laws prohibit it from providing the records completely redated except for the date, as requested.”

Attorney Deborah Buffi, Associate Director/Acting Deputy Director, submitted a substantive response on behalf of the DCYF, which included an affidavit from Assistant Director of the Division of Family Services Unit, Winsome Stone. The DCYF maintains that it is restricted by numerous state and federal statutes from disclosing the information Complainant seeks, even in redacted form. First, the DCYF argues that R.I. Gen. Laws § 38-2-2(4)(C) specifically exempts, “[c]hild custody and adoption records, records of illegitimate births, and records of juvenile proceedings before the family court” from the APRA’s definition of a public record. Next, the DCYF states that it is bound by R.I. Gen. Laws §§ 8-10-21[4] and 14-1-5[5], which specifically exclude certain juvenile matters, including proceedings “concerning any child residing or being within the state who is: (i) delinquent; (ii) wayward; (iii) dependent; (iv) neglected; or (v) mentally disabled” from the Family Court’s definition of public records. R.I. Gen. Laws § 14-1-5(1). Thus, DCYF states, R.I. Gen. Laws § 38-2-2(4)(S) also applies to exempt these records from public inspection.  The DCYF also asserts that several other DCYF-specific state statutes require confidentiality of the records Complainant seeks, such as R.I. Gen. Laws §§ 40-11-13[6] and 42-72-8,[7] in addition to Federal law as well.[8]

DCYF argues that “there is no reasonable segregable information with respect to the Family Court decrees. *** Further, the records requested are Family Court records and DCYF does not have the legal authority to publicly disclose a Family Court order issued in accordance with the original exclusive jurisdiction in juvenile justice and/or child welfare proceedings.” “The statutes described herein clearly protect the privacy rights of those children in the care, custody and control of DCYF. Reactions [sic] that leave dates or any information whatsoever may lead to the recognition of a child.”

Regarding Complainant’s argument that DCYF provides unredacted copies of the sought-after records to RIDE and municipal school districts, thus it is “estopped” from claiming confidentiality, the DCYF argues that it is “legally responsible to file motions to establish residency of children in DCYF care for the purpose of ensuring a child in DCYF care is educated in accordance with Rhode Island law and in addition is not the educational responsibility of the state agency.”[9] Further, the DCYF maintains that the Family Educational Rights and Privacy Act (“FERPA”) “protects the privacy of a student’s education record.” “The fact that documents are required to be submitted at an [RIDE or school district] administrative hearing does not negate the legal requirement for confidentiality under state and federal law.” “The records submitted by DCYF to RIDE are specific education records to establish residency for the purpose of establishing responsibility to provide an education to the child in the care and custody of DCYF.”

Finally, the DCYF argues that it would be “unduly burdened” to provide the documents Complainant seeks as the records “are filed in the child’s individual file maintained by the family services worker. As of January 1, 2022 there are 300 youth placed in residential treatment facilities. Currently there are approximately 2800 children in the care of DCYF. *** DCYF would have to go to every individual file and make ‘electronic copies’ and redact. *** DCYF does not have the information requested in a format that does not require copying, searching, and reorganizing.” See R.I. Gen. Laws § 38-2-3(h).

The Complainant did not submit a rebuttal.

Complainant does not contest the DCYF’s argument that the types of records sought fall within the ambit of R.I. Gen. Laws §§ 8-10-21 and 14-1-5, but rather argues that DCYF is “estopped” from claiming confidentiality because it disclosed these records (or similar records) to state and municipal education agencies. The disclosure of these records (or similar records) by DCYF pursuant to its statutory obligations, however, provides no support to the argument that such records consequently must also be made available to the general public upon request.  Complainant cites no legal authority for this estoppel argument and we are aware of at least one Rhode Island Superior Court case that has rejected this type of waiver argument, even where the prior disclosure was not governed by statute.  See Fuka v. Department of Environmental Mngt., PC 2007-1050 (R.I. Super. April 17, 2007) (Indeglia, J.) (“Simply because the DEM has previously released this information does not strip the licensees of the privacy protections normally afforded to such information.”).  As DCYF maintains, it is statutorily obligated to disclose child placement records when establishing residency for education purposes, see R.I. Gen. Laws §§ 16-64-1.3 and 16-64-6, and that any records provided to these agencies are further subject to the confidentiality provisions for educational records established in FERPA. See 20 U.S.C. § 1232g.[10] The Complainant does not dispute these requirements, i.e., DCYF is required to provide child placement records to the relevant education agencies or that these records, in the hands of such agencies, are further subject to confidentiality provisions  This finding also accords with R.I. Gen. Laws § 38-2-2(4)(C), which exempts from disclosure, “[c]hild custody and adoption records, records of illegitimate births, and records of juvenile proceedings before the family court.”

To be sure, R.I. Gen. Laws § 38-2-3(b) provides that, “[a]ny reasonably segregable portion of a public record excluded by § 38-2-2(4) shall be available for public inspection after the deletion of the information which is the basis of the exclusion.” Although Complainant requested the records in redacted form, the relevant statutes, as discussed above, require the requested to be non-public without exception. See R.I. Gen. Laws §§ 8-10-21 and 14-1-5.

Accordingly, based upon the foregoing, we find that the DCYF did not violate the APRA by withholding the records in full pursuant to R.I. Gen. Laws § 38-2-2(4)(S).[11]