VIA EMAIL ONLY

March 3, 2023

Mr. Kent C. Novak

Steven J. Angell, Esquire

Solicitor, Town of Coventry

Dear Mr. Novak and Attorney Angell:

We have completed the investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Kent Novak (“Complainant”) against the Town of Coventry (“Town”). For the reasons set forth herein, we find that injunctive relief and/or civil fines are not appropriate. 

David M. D’Agostino, Esquire[1], legal counsel to the Town, submitted an “initial substantive response” (emphasis in original) on behalf of the Town, which included an email from the Town Clerk, Joanne P. Amitrano. The Town states that it received the Complainant’s APRA request on August 29, 2022 and that via email correspondence from the Clerk, sent to the Complainant on September 12, 2022, it invoked a twenty (20) business day extension as provided for in the APRA. As grounds, the Town cited the “scope of [the Complainant’s] request and “a number of recent APRA requests, which are pending.” Therefore, the Town contends that as of the date that the instant APRA Complaint was filed, a substantive response to the Complainant’s underlying APRA request was not yet due.

The Complainant submitted a rebuttal wherein he concedes that he “inadvertently did not see and/or open an email sent to me by [the Town Clerk] on September 12, 2022 ...  I do note the request from the Town … requesting an additional 20 days within which to respond to my request.” Nevertheless, the Complainant challenges the assertion that his request, which was mailed on August 23, 2022, was received by the Town on August 29, 2022. He argues that when he mails other items to the Town, those items are usually received sooner.

In a supplemental filing dated November 1, 2022, the Complainant noted that the Town responded to his request on both September 27, 2022 and October 12, 2022, and that as of the date of his November 1, 2022 filing, he was not in possession of two records that he had requested. Specifically, the Complainant contends he was missing “the Monthly Finance Report for June, 2021 and … ‘[a] copy of the Town of Coventry approved Fiscal Year audit.’” In Response to this November 1, 2022 filing, the Town provided both outstanding records to the Complainant.

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 to comply. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7. A public body may extend the time to respond to an APRA request by an additional twenty (20) business days “if it can demonstrate that the voluminous nature of the request, the number of requests for records pending, or the difficulty in searching for and retrieving or copying the requested records, is such that additional time is necessary to avoid imposing an undue burden on the public body.” R.I. Gen. Laws § 38-2-3(e). The APRA requires that “[a]ny such explanation must be particularized to the specific request made.” Id.

Here, it is undisputed that the Complainant’s APRA request was dated and mailed on [Tuesday] August 23, 2022. The Town contends that the request was received by “the Town Clerk’s Office on [Monday] August 29, 2022 at 2:58pm.” Although the Complainant challenges this assertion in rebuttal, he provides no documentary evidence in support. Instead, he offers anecdotal evidence which is seemingly contradictory, arguing that his APRA request “should have been received … on Wednesday, August 24, 2022” (one business day after he mailed it), while also stating that the Town has received other mailed items “within three days.” There is insufficient evidence that the Town received the APRA request prior to Monday, August 29, 2022.    

The Town timely extended the time to respond to the Complainant’s request by an additional twenty (20) business days on Monday, September 12, 2022. The Complainant acknowledges the same, conceding that he “did not see and/or open” the Town’s extension letter and that he now “note[s] the request from the Town … requesting an additional 20 days within which to respond to [his] request.” The Complainant filed his Complaint with this Office on September 18, 2022, before the Town’s deadline to respond to his request expired. Consequently, we find that the Town did not violate the APRA.

The Complainant also challenges the Town’s basis for asserting an extension. He argues, in part, that “the Town’s rationale for requesting an additional 20 days does not appear to be tailored to my simple request” and that the records “should have [been] readily available by simply pressing a few key strokes (sic) on a computer and certainly would not place an undue burden on the municipal staff addressing my request.” The Town's need for additional time was premised on both the scope of the request (which sought finance reports from June of 2021, June of 2022, as well as the Town’s “latest … approved Fiscal Year audit”) and due to the numerous "recent APRA requests" then pending with the Town. Based on our review, these reasons were particular to the Complainant's request and comply with the permissible reasons for an extension set forth in the APRA. See R.I. Gen. Laws§ 38-2- 3 (e). Accordingly, we find no violation.

Finally, in a supplemental filing the Complainant argues that the Town did not provide him with all responsive records prior to the expiration of the twenty (20) business day extension. We need not address this issue because the Complainant subsequently came into possession of the missing records. On multiple occasions, this Office has previously determined it unnecessary to consider whether a public body violated the APRA when a complainant receives the subject records and when there is no evidence of a willful and knowing or reckless violation on the part of the public body. See Lamendola v. East Greenwich School Committee, PR 20-11; Save the Bay v. Rhode Island Department of Environmental Management, PR 20-62; Farinelli v. City of Pawtucket, PR 17-22. The reason for this conclusion is because, even assuming a violation occurred, the APRA only provides for two types of remedies: injunctive relief and civil fines for a willful and knowing or reckless violation. See R.I. Gen. Laws § 38-2-9(d). Because the subject records were subsequently made available to the Complainant, in this case, injunctive relief is unnecessary.

There is also insufficient evidence that the Town’s failure to provide all responsive records constituted a willful and knowing, or reckless, APRA violation that would warrant civil penalties. See R.I. Gen. Laws § 38-2-9(d). Based on the record, it appears that at least some of the missing records sought by the Complainant may not have been in the Town’s possession at the time of the Complainant’s initial APRA request. An email from the Town Clerk dated September 27, 2022 states that the Town would “be receiving the … June 2022 [finance report] at the October 11th [2022] Town Council Meeting [and] … [t]he audit is still in draft form with the auditor’s office.” We note that the APRA does not require a public body to provide documents that it did not have at the time the request to inspect the documents was made. See R.I. Gen. Laws § 38-2-3(h). We also note that the Complainant is now in possession of all requested records, and we are not aware of any recent finding of a violation by Town under similar circumstances. As such, even assuming the failure to provide all responsive records would be a violation, civil fines are not appropriate.