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
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VIA EMAIL ONLY
February 17, 2023
Mr. Paul Pontarelli
Deborah Buffi, Esquire
Associate Director/Acting Deputy Director, Department of Children, Youth and Families
Re: Pontarelli v. 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.
On November 16, 2021, the Complainant submitted the following APRA request to the DCYF seeking:
“Electronic copies of all Rhode Island Family Court decrees, orders, decisions and other directives since January 1, 2020 ordering or authorizing the placement of a child in the care of DCYF in a residential treatment facility. It is requested that all personally identifiable information in the records be redacted.”
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), 38-2-2(4)(C) and (4)(S). 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 and 14-1-5, 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 and 42-72-8, in addition to Federal law as well.
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.” 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.
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). There are three (3) APRA provisions at issue here: R.I. Gen. Laws §§ 38-2-2(4)(C), (4)(S), and 38-2-3(h).
Rhode Island General Laws § 38-2-2(4)(S) exempts from disclosure, “[r]ecords, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law or rule of court.” The DCYF cites to numerous state and federal statutes to support its position – unrebutted by the Complainant – that the request records are confidential and thus DCYF is prohibited from disclosing the same to the Complainant – and ultimately, the public – even in redacted form.
Rhode Island General Laws § 8-10-21 states that, “[t]he records of the family court shall be public records, except that records of hearings in matters set forth in § 14-1-5, together with stenographic notes and transcripts of those hearings, shall not be available for public inspection unless the court shall otherwise order.” (Emphasis added). The types of matters exempt from the Family Court’s classification of public records include proceedings:
“(1) Concerning any child residing or being within the state who is: (i) Delinquent; (ii) Wayward; (iii) Dependent; (iv) Neglected; or (v) Mentally disabled;
(2) Concerning adoption of children;
(3) To determine the paternity of any child alleged to have been born out of wedlock and to provide for the support and disposition of that child in case that child or the child’s mother has residence within the state; and
(4) [Deleted by P.L. 2021, ch. 39, § 3 and P.L. 2021, ch. 40, § 3.]
(5) Referred to the court in accordance with the provisions of § 14-1-28.” R.I. Gen. Laws § 14-1-5.
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. 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).
Although the Attorney General has found no violations and 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). We are closing this file as of the date of this letter.
We thank you for your interest in keeping government open and accountable to the public.
PETER F. NERONHA
By: /s/ Kayla E. O’Rourke
Kayla E. O’Rourke, Esquire
/s/ Adam D. Roach
Adam D. Roach, Special Assistant Attorney General
 Rhode Island General Laws § 38-2-3(h) states that, “[n]othing in this section shall be construed as requiring a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made except to the extent that such records are in an electronic format and the public body would not be unduly burdened in providing such data.”
 Rhode Island General Laws § 38-2-2(4)(C) exempts from disclosure, “[c]hild custody and adoption records, records of illegitimate births, and records of juvenile proceedings before the family court.”
 Rhode Island General Laws § 38-2-2(4)(S) exempts from disclosure, “[r]ecords, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law or rule of court.”
 Rhode Island General Laws § 8-10-21 states, in pertinent part, “[t]he records of the family court shall be public records, except that records of hearings in matters set forth in § 14-1-5, together with stenographic notes and transcripts of those hearings, shall not be available for public inspection unless the court shall otherwise order.”
 Rhode Island General Laws § 14-1-5 provides, “[t]he [Family] court shall, as set forth in this chapter, have exclusive original jurisdiction in proceedings: (1) Concerning any child residing or being within the state who is: (i) Delinquent; (ii) Wayward; (iii) Dependent; (iv) Neglected; or (v) Mentally disabled; (2) Concerning adoption of children; (3) To determine the paternity of any child alleged to have been born out of wedlock and to provide for the support and disposition of that child in case that child or the child’s mother has residence within the state; and (4) [Deleted by P.L. 2021, ch. 39, § 3 and P.L. 2021, ch. 40, § 3.] (5) Referred to the court in accordance with the provisions of § 14-1-28.”
 Rhode Island General Laws § 40-11-13(a) states, in pertinent part, “[a]ll records concerning reports of child abuse and neglect, including reports made to the department, shall be confidential except as specifically provided by this chapter or as specifically provided by § 42-72-8 or specifically authorized by the family court in furtherance of the purposes directly connected with this chapter.”
 Rhode Island General Laws § 42-72-8 provides, in pertinent part, “(a) Any records of the department pertaining to children and their families in need of service pursuant to the provisions of this chapter; or for whom an application for services has been made, shall be confidential and only disclosed as provided by law. (b) Records may be disclosed when necessary: (1) To individuals, or public or private agencies engaged in medical, psychological, or psychiatric diagnosis or treatment or education of the person under the supervision of the department.”
 Under 42 U.S.C. § 5106(a)(b)(2)(B) a State must establish “(viii) methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child’s parents or guardians, including requirements ensuring that reports and records made and maintained pursuant to the purposes of this subchapter and subchapter III shall only be made available to—(I) individuals who are the subject of the report; (II) Federal, State, or local government entities, or any agent of such entities, as described in clause (ix); *** (VI) other entities or classes of individuals statutorily authorized by the State to receive such information pursuant to a legitimate State purpose.”
In order for a State to be eligible for payments under 42 U.S.C. § 671(a)(8) (Foster Care and Adoption Assistance), a State must establish a plan that, “subject to subsection (c), provides safeguards which restrict the use of or disclosure of information concerning individuals assisted under the State plan to” those purposes directly delineated in the statute.
42 C.F.R. § 205.50 outlines the requirements for safeguarding of records and information related to child welfare records under the Social Security Act.
 Rhode Island General Laws § 16-64-1.3 establishes that the responsibility for education for children in group homes and other residential placements lies with the municipality in which the foster home, group home or residential facility is located.
Rhode Island General Laws § 16-64-6 establishes the procedure by which the Commissioner of Elementary and Secondary Education (or her designee) shall resolve any disputes over residency for education purposes.
 The Family Education Rights and Privacy Act (“FERPA”) is a Federal law that protects the privacy of student education records. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
 Because we find that Exemption (C) and (S) applies to the withheld records, we need not address whether DCYF would face “undue burden” under R.I. Gen. Laws § 38-2-3(h).