VIA EMAIL ONLY

March 13, 2023

Attorney Dianne L. Izzo, Esquire

Attorney Albert J. Vitali III, Esquire

Senior Legal Counsel, Rhode Island Department of Administration

Dear Attorney Izzo and Attorney Vitali:

The investigation into the Access to Public Records Act (“APRA”) complaint filed by Attorney Dianne L. Izzo (“Complainant”) against the Department of Administration (“DOA”) is complete. For the reasons set forth herein, we find that DOA violated the APRA.

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.

• Denial of Requested Records 

Unless exempt, all records maintained by a public body are presumed to be public records. See R.I. Gen. Laws § 38-2-3(a). Among exempted records are personal individually identifiable records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. See R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).

The plain language of this provision contemplates a “balancing test” whereby the “public interest” in disclosure is weighed against any “privacy interest.” Consequently, we must consider the “public interest” versus the “privacy interest” to determine whether the disclosure of the requested records, in whole or in part, “would constitute a clearly unwarranted invasion of personal privacy.” See R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).

The United States Supreme Court has noted that “FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.” United States Department of Justice, et al. v. Reporters Committee for Freedom of the Press, et al., 489 U.S. 749, 774 (1989).  The touchstone concerning whether public disclosure of a record maintained by the government outweighs an individual’s privacy is whether the records concern “official information” about the government agency or sheds light on the conduct of government.

The reasoning applied by the United State Supreme Court was adopted by the Rhode Island Superior Court in Fuka v. Rhode Island Department of Environmental Management, No. PC07-1050, 2007 WL 1234484 (R.I. Super. Apr. 17, 2007). In Fuka, a requester sought to compel the Rhode Island Department of Environmental Management (DEM) to release a complete list of names and addresses of all licensed commercial fisherman and dealers currently registered with the DEM. The Superior Court held that “the list of addresses of the licensees on file with the DEM will provide little or no insight into the performance of the DEM.” Id. Accordingly, the list of licensees’ addresses in the Fuka matter was determined to be exempt from public disclosure.

Here, DOA’s non-production of the email address list sought by the Complainant is similar to Fuka. Disclosure of private email addresses compiled by DOA through individual participation in a statewide voluntary training workshop would provide the public with “little or no insight into the performance” of DOA, nor would it shed much light on government conduct. See Brigham v. Dept. of Human Services, PR 21-22 (finding that disclosure of the names and addresses of deceased individuals receiving public assistance funded burials would implicate privacy interests and that no specific public interest in disclosure of this information was articulated). See also Patacsil v. Narragansett Bay Commission et al., PR 21-18 (finding no public interest in disclosure of the names and property addresses of those with delinquent sewer bills of 90 days or more); DeAscentis v. Town of Jamestown, PR 14-04 (finding no public interest in disclosure of street addresses and states of residence for a Town’s mooring permit holders). Therefore, we find that DOA did not violate the APRA by withholding the private or personal email addresses under Exemption (A)(I)(b).

Additionally, R.I. Gen. Laws § 38-2-3(b) provides that, “[a]ny reasonably segregable portion of a public record excluded by § 38-2-2(4) shall be available for public inspection after the deletion of the information which is the basis of the exclusion.” In rebuttal, the Complainant, argues that “[t]he names of participants and their municipal affiliations would be easily segregable from their email addresses” and that “DOA should have at least provided to me the names on the mailing list together with their affiliations.” This Office conducted an in camera review of the withheld record and determined that it consists solely of a list of email addresses and does not include “names” or “affiliations” or any other additional information.^[1]

Nevertheless, while the vast majority of the withheld email addresses appear to be personal email addresses, and while only a few seem to be associated with a public body of some kind, the total number of email addresses contained within the withheld record is slight. Based upon this small quantity of total emails contained within the withheld record, we find that DOA could have produced a reasonably segregable portion of the list by simply redacting the personal email addresses and producing only the governmental work email addresses. We thus find that DOA violated the APRA for failing to produce a reasonably segregable portion of the withheld record. See R.I. Gen. Laws § 38-2-3(b).

• Failure to Respond to Administrative Appeal

The APRA provides that:

 “Any person or entity denied the right to inspect a record of a public body may petition the chief administrative officer of that public body for a review of the determinations made by his or her subordinate. The chief administrative officer shall make a final determination whether or not to allow public inspection within ten (10) business days after the submission of the review petition.”

Here, it is undisputed that DOA did not respond to the Complainant’s August 5, 2022 administrative appeal. The record indicates that DOA drafted and attempted to send a response to the Complainant’s administrative appeal on August 19, 2022. Based on the record, it appears that DOA sent this response to an incorrect email address for the Complainant. In a separate correspondence, DOA conceded that “[d]ue to a clerical error, the [administrative appeal response] was not sent … within ten business days in accordance with RIGL 38-2-8(a). [DOA] was unaware of this fact, and takes full responsibility for its error.” Accordingly, we find that DOA violated the APRA. See R.I. Gen. Laws § 38-2-8(a).

As to DOA’s failure to respond to the Complainant’s administrative appeal, we conclude that insufficient evidence exists to find a willful and knowing, or alternatively reckless, violation. The record shows that DOA drafted a response to the Complainant’s administrative appeal and attempted to send it to the Complainant, but through an error in transcription it was sent to an inaccurate email address and DOA was not alerted to this error through a “bounce back email from Outlook.” We also do not find injunctive relief appropriate because the Complainant immediately received a response to her administrative appeal when DOA became aware of this error.

This finding serves as notice that the conduct discussed herein violates the APRA and may serve as evidence of a willful and knowing, or reckless, violation in any similar future situation. Although the Attorney General will not file suit in this matter, nothing within the APRA prohibits the Complainant from instituting an action for injunctive or declaratory relief in Superior Court. 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.

Sincerely,

PETER F. NERONHA

ATTORNEY GENERAL

By: /s/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General