VIA EMAIL ONLY

March 3, 2023

PR 23-23

 

Mr. Jason Richer

 

 

Mr. David Igliozzi, Esquire

Town Solicitor, North Smithfield

 

 

Re:          Richer v. North Smithfield Zoning Board

 

Dear Mr. Richer and Attorney Igliozzi:

 

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Jason Richer (“Complainant”) against the North Smithfield Zoning Board (“Board”). For the reasons set forth herein, we find that the Board violated the APRA.   

 

Background

 

The Complainant alleges that he submitted an APRA request to the Board on May 24, 2022 and the Board failed to respond within ten business days. The Complainant attached a copy of his request, which sought “the current and previous applications for licenses to operate, provided by the owner of record for Soil and Earth Removal Operations taking place” at “the lot of land off Pine Hill Rd and Old Oxford Rd owned by POUND HILL REALY LLC.” The request specified,

 

“To be clear, I am seeking the application submitted in 2013 when Pound Hill Realty LLC acquired the tract of land as required by law and all yearly applications to renew since, as outlined in Sec 11-37 License Required, as well as the Zoning Board of Reviews written recommendations to the Town Council for each application and/or renewal. Please include any amendments to any licenses approved since Pound Hill Realty acquired the land in 2013.”

 

The Complaint also asserts, “I’m certain they have no responsive documents to give me.”

 

The Board filed a substantive response that included affidavits from North Smithfield Town Clerk Joanne Buttie, who is designated to respond to APRA requests submitted to the Town of North Smithfield (“Town”), and Building and Zoning Clerk Dawn M. Fontaine. The Board subsequently submitted an additional affidavit from the Town Clerk to “correct a clerical error regarding a date cited in her affidavit” and “clarify the dates of events.” The Board does not provide any evidence that it provided a written response to the Complainant’s APRA request. Rather, the Board’s submission chronicles a number of interactions between Town staff and the Complainant, including occasions both before and after the date when the APRA request was submitted when the Complainant came to Town offices and was given access to a variety of Town records. One such visit occurred on May 31, 2022, when the Complainant came to the Clerk’s office. The corrected affidavit of the Town Clerk attests that when the Complainant came to the Clerk’s office on May 31, 2022, he requested a copy of the license “pertaining to his APRA (Pound Hill Realty License)” and she told the Complainant that the Town “did not have any documents regarding the license.” The Town Clerk attests that, “I asked him if he was all set and he said yes. (I was referring to the APRA as the information he came in for was the same as what was requested in the APRA).”

 

The Complainant submitted a rebuttal wherein he acknowledges that Town staff, many of whom were new to the job, were helpful to him.  The Complainant also acknowledges that he visited the Town offices and received access to certain records prior to submitting the APRA request that is the subject of his Complaint, but contends that he had doubts about the sufficiency of the Town’s search at that time. He asserts the Town staff “did their very best in this new environment but [their search] was not thorough through no fault of their own.” The Complainant asserts that his May 24, 2022 APRA request sought documents that he had not previously sought and was submitted because he did not think the Town had sufficiently previously searched for the records in which he was interested.

 

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.

 

Pursuant to the APRA, a public body has ten (10) business days to respond in some capacity to a records request, whether by producing responsive documents, denying the request with reason(s), or extending the period necessary to comply as provided in the APRA. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7. The APRA requires that “any denial of the right to inspect or copy records ... shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial.” R.I. Gen. Laws § 38-2-7(a) (emphasis added). “A public body that receives a request to inspect or copy records that do not exist or are not within its custody or control shall *** state that it does not have or maintain the requested records.” R.I. Gen. Laws § 38-2-7(c).

 

Here, the record evidences that the Board failed to provide any written response to the Complainant’s APRA request. The APRA expressly requires a public body, even when it does not maintain the requested records, to provide a written response to the requester stating that it does not maintain the requested records.  See R.I. Gen. Laws § 38-2-7(a), (c). There may be circumstances where a requester and a public body reach an agreement that an APRA request may be considered withdrawn and that no formal written response is required. When that is the case, the parties should ensure that both parties clearly have the same understanding and should document any such agreement. Here, the Board indicates that it believed that it had satisfied the Complainant’s APRA request. However, the record is devoid of unambiguous evidence that the Complainant clearly indicated that he was satisfied and that no formal response to his APRA request was required.

 

The Town Clerk’s affidavit attests that she “asked [Complainant] if he was all set and he said yes. (I was referring to the APRA as the information he came in for was the same as what was requested in the APRA).” Based on this evidence, it is not clear to this Office that the Town Clerk expressly asked the Complainant whether he was “all set” specifically regarding his APRA request, or whether she more generally asked if he was all set. We note that the Town Clerk asked if the Complainant was “all set” after telling him that the Town “did not have any documents regarding the license.” However, the Complainant’s May 24, 2022 APRA request did not just pertain to a license, but also sought certain applications and written recommendations. Although the Town Clerk in her mind may have been asking the Complainant whether his APRA request was resolved, the record does not evidence that the question was clearly posed in that manner. On this record, it is unclear whether the Complainant understood the Town Clerk to be asking him whether his APRA request was resolved. Accordingly, we find the Board violated the APRA by failing to provide a timely written response to the Complainant’s APRA request. As noted above, in situations where the parties agree that an APRA request has been resolved, they should clearly and expressly memorialize that to avoid any ambiguity.

 

Conclusion

 

Upon a finding of an APRA violation, the Attorney General may file a complaint in Superior Court on behalf of the Complainant, requesting “injunctive or declaratory relief.” See R.I. Gen. Laws §38-2-8(b). A court “shall impose a civil fine not exceeding two thousand dollars ($2,000) against a public body…found to have committed a knowing and willful violation of this chapter, and a civil fine not to exceed one thousand dollars ($1,000) against a public body found to have recklessly violated this chapter . . . .” See R.I. Gen. Laws § 38-2-9(d).

 

We do not find that the Board’s failure to provide a timely written response was willful and knowing, or reckless. The Board provided evidence that Town staff spent significant time assisting the Complainant with his various inquiries and the evidence indicates that the Town staff believed, albeit mistakenly, that they had satisfied the Complainant’s APRA request. The Complainant also acknowledges that Town staff were helpful to him.

 

We next consider whether there is a need for injunctive relief. The record reveals that Town staff already performed various searches for different records sought by the Complainant. However, some of those searches pre-dated the APRA request and the Complainant expressed concerns about the sufficiency of those searches, including by identifying certain Town staff that he thought should have been consulted as part of those searches. Notwithstanding the fact that the Complaint expresses the Complainant’s belief that the Board does not maintain responsive records, the Board is still required to conduct a reasonable search.

 

The Complainant came into the Town’s offices on May 31, 2022, after he submitted his APRA request, and the Town informed him that it did not maintain a certain license he was seeking pertaining to the property that was the subject of his APRA request. However, it is not clear based on the record before us that the Board conducted a complete, reasonable search for any records that were potentially responsive to all the specific documents sought in the May 24, 2022 request.  Accordingly, injunctive relief may be necessary, but we will first permit the Board an opportunity to comply with this finding. Within ten business days of the date of this finding, the Board should provide the Complainant with a written response to his May 24, 2022 APRA request. The Board should provide the Complainant with any responsive records it locates[1] or affirmatively state in writing that no such records are maintained. The Board should not assess any cost for completing its search and retrieval. See R.I. Gen. Laws 38-2-7(b). Additionally, at that time, the Board should provide an affidavit or other evidence describing the search procedures it used to conduct a search for potentially responsive records, including the Town staff and departments that were consulted. If the Complainant contends that the Board’s response does not comply with the APRA, he should notify this Office within ten business days of receiving the Board’s response.

 

Although this Office will not file suit in this matter at this time, nothing within the APRA prohibits the Complainant from filing an action in Superior Court seeking injunctive or declaratory relief. See R.I. Gen. Laws § 38-2-8(b). This Office will keep this file open pending the completion of the steps outlined above.

 

We thank you for your interest in keeping government open and accountable to the public.

 

Sincerely,

 

PETER F. NERONHA

ATTORNEY GENERAL

 

By: /s/ Katherine Sadeck

Katherine Sadeck

Assistant Attorney General

 

 

 

APRA