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
| || |
VIA EMAIL ONLY
February 21, 2023
Mr. Patrick Greichen
James M. Callaghan, Esquire
Narragansett Town Solicitor
Re: Greichen v. Narragansett Police Department
Dear Mr. Greichen and Attorney Callaghan:
We have completed our investigation into the Access to Public Records Act (“APRA”) complaint filed by Mr. Patrick Greichen (“Complainant”) against the Narragansett Police Department (“Department”). For the reasons set forth herein, we find that the Department did not violate the APRA.
The Complainant alleges the Department violated the APRA when it improperly denied his request for an incident report from September 13, 2019, involving himself and two other people, including a minor. The Department denied the request, asserting that disclosure of the requested records would constitute an unwarranted invasion of personal privacy pursuant to R.I. Gen. Laws § 38-2-2(4)(D)(c). The Complainant submitted an administrative appeal pursuant to R.I. Gen. Laws § 38-2-8(a) arguing that “[t]he particular incident report im [sic] seeking is going to be used for family court proceedings.” The Chief of the Department affirmed the denial and also notified the Complainant that if he seeks the records in connection with legal proceedings, “then [Complainant] should contact [his] legal counsel and request that they pursue a subpoena through the courts.” The Complainant subsequently filed a Complaint with this Office contending that he has a significant personal interest in obtaining these records and that “NPD is not meeting the burden to deny [his] requests.”
Town Solicitor, James M. Callaghan, Esquire, provided a substantive response on behalf of the Department. The Department argued that the records Complainant seeks are exempt under the APRA pursuant to R.I. Gen. Laws § 38-2-2(4)(D)(c) to the extent that “[d]isclosure of the records could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Specifically, the Department notes that the requested records do not pertain to an arrest and there is a strong presumption that disclosure of the records would constitute an unwarranted invasion of personal privacy. The Department provided the relevant incident report to this Office for our in camera review.
We acknowledge Complainant’s rebuttal wherein he reiterates his personal interest in the records.
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 exempts from public disclosure “[a]ll records maintained by law enforcement agencies for criminal law enforcement and all records relating to the detection and investigation of crime,” where disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(D)(c).
In this case, the Complainant sought law enforcement records from a specific date involving himself, another adult and a minor child. Law enforcement records involving specific identifiable private citizens implicate personal privacy interests, particularly when no arrest takes place. See, e.g., Fund for Constitutional Government (“FCG”) v. National Archives and Records Service, 656 F.2d 856, 864 (D.C. Cir. 1981) (“There can be no clearer example of an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation.”); American Civil Liberties Union v. Department of Justice, 655 F.3d 1, 7 n.8 (D.C. Cir. 2011) (“disclosure of records revealing that an individual was involved or mentioned in a law enforcement investigation implicates a significant privacy interest,” particularly where the individual was never charged or convicted); see also Bernard v. Vose, 730 A.2d 30 (R.I. 1999) (privacy interest in inmate parole file). Although the APRA provides that records “reflecting the initial arrest of an adult” are public, see R.I. Gen. Laws § 38-2-2(4)(D), the Department has made the uncontested assertion that the requested records do not pertain to an arrest. That assertion is confirmed by our in camera review. Our in camera review of the requested records confirms that they implicate a specific citizen’s privacy interests and make references to a minor child.
Although normally a person making an APRA request need not provide a reason for the request, see R.I. Gen. Laws § 38-2-3(j), the request at issue here implicates a specific individual’s privacy interests. Accordingly, disclosure is only required if the public interest in disclosure outweighs those privacy interests.
The public has an interest in a document that “sheds light” on how government operates. See Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-773 (1989). The Complainant has not identified any public interest in the requested records and has not asserted that disclosure would shed light on the government’s operations. Neither do we discern an apparent public interest in disclosure of this record. Instead, the Complainant contends that he has a compelling personal interest in obtaining the record separate and apart from any public interest.
Under the APRA, however, our sole function is to determine whether the requested document should be made available to the public at-large, not specific persons who assert a heightened personal interest in a document. If this Office determines that a particular document is a public record, then any person may access or inspect that record regardless of whether that person is an interested party. See R.I. Gen. Laws § 38-2-3(a). Once a record is made public under the APRA, that record is public to all without any restrictions. We note that in Bernard v. Vose, 730 A.2d 30 (R.I. 1999), the Rhode Island Supreme Court held that the petitioner did not have a right, under the APRA, to review his own parole board files, which contained personal and sensitive information about him, because once the files were made public to him under the APRA, the files would then be available for inspection by the general public. For this reason, Complainant’s relationship to any particular person identified in the requested records and personal interest in obtaining the records cannot factor into our analysis. See, e.g., Provost v. Narragansett Police Department, PR 22-02; Gagliano v. Narragansett Police Department, PR 21-14; Harper v. Portsmouth Police Department, PR 19-15; Gardiner v. Rhode Island Department of Public Safety, PR 19-08.
Accordingly, we conclude that the privacy interests implicated by disclosing this report outweigh any public interest and that the Department did not violate the APRA by denying the request.
Furthermore, the implicated privacy interests cannot be effectively quelled by redaction since the requested records relate to three, specific identifiable citizens, including a minor child. 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.”).
Although this Office has determined that the Department did not violate the APRA by denying Complainant’s APRA request, we observe that the Complainant seemingly has a significant personal interest in at least viewing the requested report. While we admittedly do not know all the facts and circumstances concerning the events memorialized in the requested records, we urge the Department to consider options outside of the APRA process for addressing both individual privacy interests and the Complainant’s personal interest in the records. We also make no determination whether the Complainant may be able to obtain the requested report through other legal means as these issues are not before this Office and are outside our APRA jurisdiction.
Although this Office has found no violations, nothing within the APRA prohibits an individual or entity from obtaining legal counsel for the purpose of 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 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
 We have chosen to omit certain details regarding the Complaint and the Complainant’s asserted interest in the records because this information is irrelevant to our finding and implicates the privacy interests of the Complainant and other third parties. As discussed further below, information related to Complainant’s personal interest in the requested records is not material to our analysis because the analysis under the APRA centers on whether there is a public interest in disclosure.