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 13, 2023
Attorney Dianne L. Izzo, Esquire
Attorney Albert J. Vitali III, Esquire
Senior Legal Counsel, Rhode Island Department of Administration
Re: Izzo v. 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.
On July 28, 2022, the Complainant submitted an APRA request to DOA seeking: “a copy of the mailing list (email addresses) used by Ms. Nancy Hess, Interdepartmental Project Manager, Division of Statewide Planning, on July 26, 2022 to send 2022 Legislative Summary Information via email to ‘Board and Commission members.’” Her request was denied by DOA on August 5, 2022. Citing R.I. Gen. Laws § 38-2-2(4)(A)(b), DOA stated that the records sought by the Complainant were “exempt from disclosure” because “[r]eleasing personal emails of individuals … without their consent would be a clearly unwarranted invasion of personal privacy.” Dissatisfied with this response, the Complainant filed an administrative appeal with DOA, also on August 5, 2022. The Complainant challenges the underlying denial of her request and alleges that she did not receive a response to her administrative appeal.
Senior Legal Counsel to DOA, Albert J. Vitali III, Esquire, provided a substantive response on behalf of DOA. As to the underlying denial of the subject records, DOA explains that the “mailing list” at issue “was created by the Division [of Planning] during a Division sponsored voluntary training provided to various municipal board and commission members across the State” and that “nearly all of the email accounts that comprise the list are personal and not work-related accounts.” DOA acknowledges that it received the Complainant’s administrative appeal “[o]n or about August 11, 2022.” After conducting a “balancing test” that requires a public body to balance “the interests of transparency into government operations with protecting the privacy rights and interests of individuals,” DOA again reached the conclusion that release of the subject records would constitute a “clearly unwarranted invasion of personal privacy.” Concurrent with its Response to the Complaint, DOA sent a separate communication to the Complainant (copying this Office) wherein it attached a response to the Complainant’s administrative appeal “which was sent out on August 22, 2022 at 10:00 a.m.” DOA notes that “[i]t appears that the email address [used by DOA] was incorrect and [DOA] did not receive a bounce back email from Outlook.”
We acknowledge the Complainant’s rebuttal wherein she challenges DOA’s assertion that disclosure of personal email addresses that were previously “provided to a state agency” would constitute “an unwarranted invasion of personal privacy.” She also contends that a reasonably segregable portion of the withheld record should have been produced.
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.
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.
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).
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).
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).
Although seeking injunctive relief may be appropriate, we prefer to first allow DOA an opportunity to comply with this finding. Within ten (10) business days of the issuance of this finding, DOA should provide the withheld document to the Complainant with appropriate redactions and should certify to this Office that it has done so. If the Complainant believes DOA’s production does not comply with this finding, she should inform this Office within five (5) business days of receiving it.
Assuming DOA complies with this finding, we do not intend to seek civil fines for a willful and knowing or reckless violation. Based on the record, it appears that DOA’s response was based on a misunderstanding about what the APRA requires rather than an intentional desire to obstruct access to public records. Additionally, we note that the vast majority of the document contains material that could be redacted consistent with the APRA. We are also not aware of any recent, similar finding of a violation by DOA. Going forward, however, the DOA must be sure to comply with the requirements of the APRA, including taking into account the APRA’s mandate that a reasonably segregable portion of a withheld record should be produced.
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.
PETER F. NERONHA
By: /s/ Adam D. Roach
Adam D. Roach
Special Assistant Attorney General
 Further, DOA would not be required compile such a list in response to an APRA request. The APRA does not require “a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made except to the extent that such records are in an electronic format and the public body would not be unduly burdened in providing such data.” See R.I. Gen. Laws § 38-2-3(h).