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
March 3, 2023
Mr. Bill Connell, Jr.
Sean J. Clough, Esquire
Legal Counsel, Smithfield School Department
Re: Connell v. Smithfield Public Schools
Dear Mr. Connell and Attorney Clough:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Bill Connell, Jr. (“Complainant”) against the Smithfield Public Schools (“SPS”). For the reasons set forth herein, we find that the SPS did not violate the APRA.
The Complainant submitted an APRA request to the SPS seeking:
During the pendency of the request, the SPS sought an additional twenty (20) business day extension to complete its search, retrieval and review of the request as an initial search yielded approximately “2,000 separate emails amounting to 920 pages of correspondences.” The SPS requested prepayment from the Complainant in the amount of $180.00 to complete his request and advised him, preliminarily, of the approximate number of emails responsive to the request as well as the “likelihood many of these records may include information that SPS is required by law to keep confidential” such as the Family Education Rights and Privacy Act (“FERPA”) 20 U.S.C. § 1232g, Rhode Island Educational Records Bill of Rights, R.I. Gen. Laws § 16-17-1, as well as pertinent APRA exemptions including R.I. Gen. Laws §§ 38-2-2(4)(A)(i)(b), (4)(M), (4)(S), and (4)(Z). The Complainant submitted the prepayment fee and SPS responded to the request by providing redacted copies of emails pursuant to R.I. Gen. Laws §§ 38-2-2(4)(A)(i)(b), (4)(M) and FERPA.
Dissatisfied with the SPS response, the Complaint to this Office followed. The Complainant alleges the SPS violated the APRA by “over-redact[ing]” emails because “every word of every internal email has been redacted. The only emails exposed are spam and marketing emails.” Complainant states that he does “understand that certain items that can be tied to PII information or staffing discussions would be redacted. This over-redaction is a clear violation of APRA.”
Attorney Sean J. Clough, Esquire, submitted a substantive response on behalf of the SPS, which included affidavits from Ms. Lisa Petrone, administrative assistant to the Superintendent of SPS, Ms. Karen Boscio, administrative assistant to the Assistant Superintendent for SPS, and Mr. Scott Barnett, technology director for the SPS, along with several exhibits. The SPS argues that “most, but not all of the correspondences” fell within one or more of the cited exemptions after SPS “did its best to review each record.” SPS contends that Ms. Virginia Harnois, the subject of Complainant’s request, is an elected SPS School Committee member. The SPS maintains that “there is a clear exception to school committee member correspondences under R.I. Gen. Laws § 38-2-1(M).” The SPS maintains that Exemption (M) clearly applies to the request as the request seeks correspondence from an elected official. Nevertheless, the SPS states that it interpreted Exemption (M) narrowly and “was able to identify correspondences that likely would not be considered to or from an elected official in their official capacities” and left those emails unredacted. The SPS maintains that the unredacted emails “consisted mainly of documents sent to the broader public and not intended specifically for that school committee member or members and included emails such as educational and non-educational marketing material that is clearly intended for a mass audience and not the school committee member in their official capacity.” The SPS also claims that it “disclosed the ‘to and from’ line of each correspondence so Mr. Connell could see who the elected official is communicating with.”
The SPS also provided this Office with un-redacted copies of the responsive emails for our in camera review.
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 two (2) APRA provisions at issue here: R.I. Gen. Laws §§ 38-2-2(4)(A)(i)(b) and (4)(M).
Rhode Island General Laws § 38-2-2(4)(M) exempts from public disclosure “[c]orrespondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.”
This exemption broadly applies to “correspondence” of elected officials “in their official capacity.” R.I. Gen. Laws § 38-2-2(4)(M). It is undisputed that Ms. Harnois is an elected member of the SPS School Committee. See Markey v. South Kingstown School Department, PR 18-37 (finding that correspondences of or to elected officials in their official capacities are properly exempt under Exemption (M)). As formulated in the Complaint, the Complainant does not contend that the redacted documents are outside the ordinary scope of Exemption (M). Instead, the Complainant contends that the SPS “over-redacted” the responsive emails.
In reviewing both the redacted and unredacted versions of the produced information during our in camera review, we observe large swaths of black redaction on nearly every email. However, upon closer inspection it is apparent that the vast majority of these redactions are of substantive discussions between Ms. Harnois and other School Committee members and/or SPS employees or legal counsel, or similar emails where Ms. Harnois was included as a “cc.” Some emails are also from constituents to Ms. Harnois and/or the School Committee as a whole. Additionally, some of the emails contain specific student-related information and identification. The SPS states that it provided the “to” and “from” (and “cc” if appropriate) lines of each of the redacted emails so the Complainant “could see who the elected official is communicating with,” but did not “provide the actual contents of the correspondences” pursuant to Exemption (M). The SPS has provided undisputed evidence that the redacted emails were either sent to or from Ms. Harnois in her official capacity as an elected School Committee member.
The Complainant’s sole argument is a conclusory statement that SPS “over-redacted” the responsive emails, stating that “certain items that can be tied to PII information or staffing discussions would be redacted.” However, the plain language of the APRA makes no such distinction between the types of correspondence or discussions. The exemption broadly applies to “correspondence” of elected officials “in their official capacity.” R.I. Gen. Laws § 38-2-2(4)(M). The Complainant does not provide any evidence or argument that the subject documents fall outside that category.
We also observed that a number of emails responsive to Complainant’s request for “all available emails” of Ms. Harnois were produced in unredacted form, although these emails do appear to be general marketing and/or SPAM messages. The SPS determined that these SPAM/marketing messages were responsive to the request and were produced to the Complainant in unredacted form as they were not communicated to Ms. Harnois in her “official capacity” as an SPS School Committee member.
Based on the totality of the evidence before us, including our in camera review, we find that the redacted documents fall within the ambit of Exemption (M). Accordingly, we find no violation.
Although this Office has found no violation, 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 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
 Based upon the evidence presented, including this Office’s own independent research, Ms. Harnois was a member of the Smithfield School Committee at all times relevant to the Complaint.
 The Complaint did not challenge the fees charged by the SPS.
 R.I. Gen. Laws § 38-2-2(4)(A)(i)(b) exempts from public disclosure, in relevant part, “[p]ersonnel and other personal individually identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
 R.I. Gen. Laws § 38-2-2(4)(M) exempts from public disclosure “[c]orrespondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.”
 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
 We understand “PII” to stand for “personally identifiable information.”
 We assume the citation to R.I. Gen. Laws § 38-2-1(M) was made in error as the correct citation is R.I. Gen. Laws § 38-2-2(4)(M).
 The SPS also provided argument and evidence that the prepayment costs charged to the Complainant were proper under the APRA, R.I. Gen. Laws § 38-2-4(b). As the Complaint only challenged the SPS’s redaction of the records provided, we need not consider the SPS arguments regarding costs.
 We note that the Complainant provided this Office with only 58-pages of documents he contends were “over-redacted” or “spam or marketing emails”, while the SPS produced over 900 pages of documents for in camera review that it maintains were provided to the Complainant. We compared the few redacted emails provided by Complainant to the unredacted versions and also reviewed the remainder of the unredacted versions.
 Because we find that Exemption (M) applies to the withheld records, we need not address whether Exemption (A)(i)(b) also applies.