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 6, 2023
Andrew Henneous, Esquire
Re: Solas v. South Kingstown School Committee
Dear Ms. Solas and Attorney Henneous:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Ms. Nicole Solas (“Complainant”) against the South Kingstown School Committee (“Committee”). For the reasons set forth herein, we find that the Committee violated the APRA.
The Complainant alleged that the Committee violated the APRA when it failed to respond to her November 5, 2022 APRA request.
Attorney Andrew Henneous submitted a substantive response on behalf of the Committee, which included an affidavit from Terrie Marchesseault, Executive Assistant to the Superintendent. The Committee concedes that it failed to respond to the Complainant’s APRA request within the ten (10) business day time period, but attests that a response was sent to the Complainant on November 29, 2022. The Committee maintains that its belated response “was not deliberate or intentional” because “[t]he response was prepared to go out in a timely fashion and then more documentation was received which delayed the response.”
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.
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. If no response is sent within the statutory deadline, the lack of response will be deemed a denial. See R.I. Gen. Laws § 38-2-7(b).
Here, it is undisputed that the Complainant submitted an APRA request to the Committee on November 5, 2022 and the Committee failed to respond to Complainant’s request within the ten (10) business day time period. Nor does the Committee contend that it invoked the twenty (20) business day extension set forth in R.I. Gen. Laws § 38-2-3(e) Accordingly, we find the Committee violated the APRA. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7.
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).
Here, we do not find injunctive relief appropriate as it is undisputed that the Complainant received the records sought on November 29, 2022. Additionally, we have not been presented with evidence of a willful and knowing, or reckless violation by the Committee in the present matter. While we are aware of Levitt v. South Kingstown School District, PR 22-22, the evidence demonstrates that the Committee delayed its response in this case in order to review additional documents that had come to its attention. In such a circumstance, rather than allow the statutory time period to expire, the Committee should have extended the time to respond as provided in the APRA. Had it done so, the Committee’s response would have been timely. The Committee is on notice that this finding may serve as evidence in a similar future case to support a finding of a willful and knowing, or reckless violation.
Although this Office has determined that it 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 as provided in the APRA. See R.I. Gen. Laws § 38-2-8(b). Please be advised that we are closing our file as of the date of this finding.
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