VIA EMAIL ONLY

March 15, 2023

Samuel D. Zurier, Esquire[1]

Eileen Cheng, Esquire

Legal Counsel, Office of the General Treasurer

Dear Attorneys Zurier and Cheng:

We have completed our investigation into the Access to Public Records Act (“APRA”) complaint filed by Attorney Samuel D. Zurier (“Complainant”) against the Office of the General Treasurer (“Treasurer”). For the reasons set forth herein, we find that the Treasurer did not violate the APRA. 

The Treasurer responded to the request producing records responsive to Parts 1(a)-(d) and 4(a)-(d), with limited redactions to ILPA[2] spreadsheets pursuant to R.I. Gen. Laws § 38-2-2(4)(B) (“Exemption B”) “to protect trade secrets and/or commercial or financial information obtained from a person, firm, or corporation that is of a privileged or confidential nature.” In response to Parts 2 and 5 of the request, the Treasurer directed the Complainant to a webpage on the Treasurer’s website for responsive information.[3] In connection with Parts 2 and 5, the Treasurer also withheld “financials and quarterly reports” as confidential pursuant to Exemption (B) and indicated that no portion of these documents was reasonably segregable.

The Treasurer also withheld documents responsive to Parts 3 and 6 pursuant to Exemption (B) and indicated that the withheld documents were not reasonably segregable.

The Complainant filed an administrative appeal with the Treasurer appealing “the non-production of quarterly reports and the non-production of any documents referring to McKinsey on the ground that Treasurer had not produced excerpts from the relevant documents with segregable non-exempt material.” See R.I. Gen. Laws § 38-2-3(b). The Complainant’s administrative appeal also requested a Vaughn index, or privilege log, describing the withheld document and specific reasons for withholding. The Treasurer’s response to the administrative appeal reiterated its decision to invoke Exemption (B) to withhold the quarterly reports and documents referencing McKinsey, including the quarterly reports and “Private Placement Memorandum.” With regard to Complainant’s request for a Vaughn index, the Treasurer replied, “our office does not provide ‘privilege logs’ or the like in response to public records requests.” 

Dissatisfied with the Treasurer’s response, the Complainant filed a fifty-five (55) page Complaint with this Office (inclusive of Exhibits 1-8), in which he narrows his challenge to the Treasurer’s APRA response in two respects: first, he challenges the use of Exemption (B) to withhold the quarterly reports, and second, he argues that the Treasurer should have been required to produce a Vaughn index.

With respect to the quarterly reports, Complainant argues that the financial information the Treasurer claims is exempt has been “disclose[d] publicly and in great detail” by the Paine Schwartz company “as part of its solicitation of public money.” Specifically, Complainant maintains that, “[b]ecause Paine Schwartz chooses to disclose performance information publicly when it is soliciting business, [Complainant] contends that the same information cannot be withheld on the basis of a claim that it is ‘of a kind that would customarily not be released to the public by the person from whom it was obtained.’ See Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 45 (R.I. 2001).” Complainant contends that “Paine Schwartz disclosed extensive commercial and financial information about its investment choices and performance in a May 23, 2018 presentation to the ERSRI Investment Commission soliciting its investment in Paine V,” including disclosing the identity of “portfolio companies,” thus “demonstrat[ing] that this data of past performance, including the performance of named individual companies, did not have ‘trade secret’ or commercial competitive value.”

Complainant also argues that the Treasurer cannot withhold the requested quarterly reports as the Treasurer discloses this “quarterly performance information for both Paine Schwartz funds” and the “Treasurer already produced to [Complainant] the overall performance data on a quarterly basis.”

Next, Complainant contends that “it is worth noting that much of [McKinsey & Company’s] association with Paine Schwartz is a matter of public record,” citing the McKinsey & Company website and the above-mentioned May 23, 2018 presentation to the State Investment Commission. Complainant argues that “Paine Schwartz’s public announcement of its relationship with McKinsey as part of its solicitation for State business amounts to a waiver by it (and McKinsey) of any claims of confidentiality with regard to its subsequent reports to the Treasurer.” (Parenthetical in original).

Finally, Complainant asks this Office “to consider the value of requiring Treasurer (and future government agencies subject to APRA requests) to produce a Vaughn index, so that future inquirers will have a clearer understanding of the types of documents involved and the basis for claiming exemption from APRA.” (Parenthetical in original).[4]  

Senior Legal Counsel, Kara D. DiPaola, Esquire,[5] submitted a substantive response to the Complaint on behalf of the Treasurer[6], consisting of Exhibits A-G and affidavits from General Counsel, Amy L. Crane, Esquire, and Chief Investment Officer, Andrew Junkin. As an initial matter, the Treasurer maintains that the only documents responsive to Complainant’s request for records referencing “McKinsey & Company” are “the identified quarterly reports.”  In responding to the Complainant’s request, the Treasurer gathered and reviewed all documents responsive to the Complainant’s request, worked with the internal Investment Team as well as Paine Schwartz, to determine which documents, or parts thereof, could be released.

The Treasurer argues that the quarterly reports at issue “fit squarely within” Exemption B as they “contain underlying portfolio information, including strategic investing plan and strategies and confidential statements of the fund as well as the identities of underlying portfolio companies. The public disclosure of underlying holdings would impair the ability of fund managers to maximize their performance thereby harming the investment performance of the pension fund.” The quarterly reports “present very specific information about private portfolio companies in which [ERSRI] is invested, including financial metrics, acquisition prices, add-on acquisition targets, future outlooks, and go-forward strategic plans.” The Treasurer states that, within the Paine Schwartz fund, “one portfolio develops and manufacturers new proprietary biopesticides” and:

“The quarterly report documents how each product is performing by region, new products in development, trial success, patent status and/or FDA approval process. The reports include go-to-market initiatives for approved products and updates on manufacturing capabilities and sales.”

The Treasurer contends that, “[r]eleasing this information to the public, which includes competitors of either Paine Schwartz or their underlying portfolio companies, would be detrimental to the business success of the underlying portfolio companies, and thereby cause direct harm to the value and performance of ERSRI’s investments.” Further, “[t]he specific information contained in the quarterly reports is not publicly available and the reports themselves have been clearly and heavily marked ‘confidential’ by Paine Schwartz.”

The Treasurer argues that the quarterly reports “also contain confidential financial statements of the fund” and “no portion of the documents contain reasonably segregable information that is releasable.” “The information that is made available to the [State Investment Commission], and which is conditioned on the presence of confidentiality restrictions, is essential to maintaining the SIC’s/ERSRI’s investments, performing due diligence and properly monitoring investments.” “[D]isclosure of these records would impair the [Treasurer’s] ability to obtain necessary information in the future.” “The requested quarterly reports are primary materials containing data imperative to understanding the health of each investment.” The Treasurer further contends that, “[w]ithout an obligation of confidentiality in certain aspects of pension investments, the SIC would not have the ability to gain access to the necessary information to make prudent investments, nor would it have the ability to invest in strong performing funds at all, ultimately harming the members of the retirement system, the State of Rhode Island, and the taxpayers.”

The Treasurer maintains that it is also “contractually prohibited from releasing the requested documents in their entirety.” The agreement between ERSRI and Paine Schwartz “specifically contemplates delivery to ERSRI of the quarterly and annual reports that are the subject of Complainant’s complaint and characterizes the quarterly reports” as confidential.

The Treasurer acknowledges Complainant’s argument that the Paine Schwartz website contains information about its portfolio companies and fund performance, but counters that this disclosure is of a “general, high-level” nature, “offer[ing] a glimpse into Paine Schwartz’s investment process” but “does not identify the particular details of each investment, the portfolio construction, the underlying investment thesis and strategic plan for each investment, or any other information contained in the requested quarterly reports.” “The information contained in the quarterly reports addressed herein is not otherwise publicly revealed.” The Treasurer maintains that the presentations made to the SIC by Paine Schwartz, which are publicly available, “contain[] information at a higher level than is sought from the quarterly reports.” The Treasurer “maintains information to a much more specific degree, and while high-level, general information may be released, the specific, granular details as are discussed herein are not disclosed publicly.”

At this Office’s request, the Treasurer provided the withheld quarterly reports for our in camera review. These documents consisted of eight .PDF reports totaling approximately 700 pages.

We acknowledge Complainant’s rebuttal as well as Exhibit 9.

Four months after the Complainant filed the Complaint with this Office, he requested an opportunity to submit an additional twenty-eight (28) pages of information (inclusive of Exhibits 10-11) in support of his allegations. This supplemental filing consisted of “a slide deck that Paine Schwartz presented to ERSRI on June 22[, 2022] concerning the practices of a new investment fund (‘Food Chain Fund VI’) *** [and] a June 2022 memo prepared by the Treasurer’s staff concerning the possible investment of ERSRI funds in Paine Schwartz Food Chain Fund VI.” (Parenthetical in original). Complainant argues that these documents support his prior arguments for four reasons, summarized below:

1.      “Slide 2 contains the disclaimer that the presentation was ‘for the exclusive use of the Rhode Island State Investment Commission,’ yet became publicly available. Thus, Paine Schwartz “does not have reasonable expectations that the ‘confidential’ information it provides to ERSRI is exempt from” APRA.

2.      “Slide 11 contains a list of portfolio companies, further reinforcing [Complainant’s] argument that the list of specific companies within Funds IV and V is not a confidential trade secret.”

3.      In its June 2022 solicitation to ERSRI, “Paine Schwartz represents the performance of its prior funds, including Food Chain IV *** [and] represents the performance of a particular portfolio company.” Thus, Complainant argues that “[b]ecause all of this information is public, the information [Complainant] seeks about the portfolio companies in Food Chains IV and V *** should not be deemed confidential.”

4.      The memorandum prepared by the Treasurer’s staff “stated that the Paine Schwartz Food Chain Fund IV yielded a net internal rate of return of 9.63%,” but Paine Schwartz represented in its June presentation “that the net internal rate of return for the same fund was between 10% and 11%” thus creating a discrepancy requiring “greater transparency of the actual investment performance.”

The Treasurer filed an objection to this supplemental filing contending that the information and exhibits contained in Complainant’s supplemental briefing “would improperly expand the record of the underlying appeal” as these documents “came into existence months after the initial APRA request” and the initial round of briefing in the initial Complaint process. The Treasurer contends that the additional exhibits proffered by Complainant “relate to a fund (Fund VI) that was not contemplated in the initial APRA request ***. These documents are unrelated to the instant appeal, and should not be accepted into the record.” The Treasurer also maintains that Complainant’s supplemental briefing and exhibits “do not offer new evidence” as “Complainant has already offered the arguments contained in his request in his appeal.” Finally, the Treasurer states that the State Investment Commission “will continue to do business during the pendency of this Complaint,” which would allow Complainant to “propose exhibit after exhibit *** opening the door to a stream of never-ending additions to the record that are tangentially related to the underlying APRA request.”  

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 provides that all records maintained by public bodies are subject to public disclosure unless the document falls within one of the twenty-seven (27) enumerated exemptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(AA). One exemption is relevant to this matter.

The APRA exempts from public disclosure “[t]rade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature.” R.I. Gen. Laws § 38-2-2(4)(B).  Before proceeding, we believe it appropriate to discuss the nature of Exemption (B), its scope, and the appropriate analytical framework on which the parties express disagreement.

First, in Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (2019), the United States Supreme Court recently had the opportunity to analyze the application of the Freedom of Information Act (“FOIA”) Exemption 4, which in all material respects mirrors R.I. Gen. Laws § 38-2-2(4)(B). [7] Specifically, FOIA’s Exemption 4 exempts from public disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Argus Leader, 139 S.Ct. at 2361 (citing 5 U.S.C. 552(b)(4)). The respondent in Argus Leader sought the release of “the names and addresses of all retail stores that participate in the SNAP [USDA national food-stamp program] and each store’s annual SNAP redemption data,” which the USDA denied in-part on the grounds that this data is customarily kept private due to competitive significance. Id. at 2360-61. The Supreme Court rejected the lower court’s imposition of a “substantial competitive harm” requirement to exempt commercial information under Exemption 4 as such a requirement does not appear in the plain, ordinary text of the statute. See id. at  2366 (“So, just as we cannot properly expand Exemption 4 beyond what its terms permit *** we cannot arbitrarily constrict it either by adding limitations found nowhere in its terms.” (internal citations omitted) (emphases in original)).

The last time the Rhode Island Supreme Court had the opportunity to examine Exemption (B) was prior to Argus Leader, adopting the Critical Mass test, which is substantively similar to the analysis in Argus Leader. In Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992), which is cited with approval by the Rhode Island Supreme Court in The Providence Journal Company v. Convention Center Authority, 774 A.2d 40 (R.I. 2011), the plaintiff sought the release of certain safety reports that had been provided to the Nuclear Regulatory Commission by the Institute of Nuclear Power Operations “on the understanding that the documents would be treated as confidential.” Id. at 872. The Court of Appeals for the District of Columbia reviewed FOIA Exemption 4, which mirrors R.I. Gen. Laws § 38-2-2(4)(B).  As a result, the Court established the so-called Critical Mass test and determined that “financial or commercial information provided to the Government on a voluntarily basis is ‘confidential’ for the purpose of Exemption 4 if it is of a kind that would customarily not be released to the public from whom it was obtained.” Id. at 879. On this basis, the Court determined that the requested safety reports voluntarily provided to the Nuclear Regulatory Commission were exempt from disclosure since, in the Court's opinion, disclosure would threaten continuing access. Id.

Critical Mass is significant to our analysis because the Rhode Island Supreme Court has expressly adopted the Critical Mass test. See The Providence Journal v. Convention Center Authority, 774 A.2d 40, 47 (R.I. 2001) (“We agree with the holding in Critical Mass and its progeny and adopt the test set forth therein, including the protection afforded to commercial and financial information that the provider would not customarily release to the public”).

In the case that adopted the Critical Mass test, The Providence Journal v. Convention Center Authority, the Rhode Island Supreme Court considered several documents requested by a Providence Journal reporter Michael Stanton pertaining to a Celebrity Golf Invitational Tournament hosted by the Westin Hotel and the Verrazano Day Banquet held at the Convention Center Authority. Mr. Stanton was denied various documents comprising the final contracts as well as documents that reflected the negotiations that led to the final agreements. See Convention Center Authority, 774 A.2d at 43. After a lawsuit was filed by The Providence Journal, the Convention Center Authority presented an argument that is similar to the Treasurer’s argument and affidavits of Attorney Crane and Mr. Junkin in this case:

“[t]he affiants [submitted by the Convention Center Authority] collectively detailed what they believed to be the anticompetitive effects of publicly disclosing the information sought by the Journal. Each affiant separately reached the conclusion that the information requested by the Journal contained confidential commercial and financial information of a sort that is not typically shared with the public.” Id. at 43-44.

On appeal, the Rhode Island Supreme Court examined Exemption (B) and noted that FOIA contained “a similar exemption.” Id. at 46. Following this observation, the Court continued and, as noted supra, adopted the test set forth in Critical Mass. Id. at 47. In particular, the Supreme Court explained that with respect to financial or commercial information provided to the Government on a voluntary basis, such information was exempt from disclosure “if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.” Id.

Based upon the foregoing, the Court concluded that with the exception of the final contracts, the remaining documents reflecting the negotiation process “must, of necessity, include confidential financial information that would not customarily be disclosed and cannot be redacted.” Id. at 48. Accordingly, this information was deemed exempt from disclosure. Id. at 48 (“It was established, through affidavit that ‘customers who contract with the [Authority] do not expect that the documents and financial information they provide will be disclosed to the public * * * [I]t is commonly understood during negotiations that the information shared by the customers * * * will remain confidential.”).

Having established the legal framework surrounding Exemption (B), we now turn to analyze the Treasurer’s application of Exemption (B) to the documents it withheld.

Findings

To begin, it cannot be ignored that the Treasurer is contractually prohibited from disclosing “any information or matter relating to the Partnership and its affairs or any information or matter related to any Portfolio Investment (the foregoing, collectively ‘Partnership Information’)” and the confidentiality agreement “specifically contemplates delivery to ERSRI of the quarterly and annual reports as Partnership Information.”

We note that, within the context of Exemption (B) a “contractual obligation to maintain the confidentiality of documents, by itself, [is not dispositive and] cannot supersede the APRA. See The Providence Journal v. Office of General Treasurer, PR 14-15.  While such a contractual prohibition is not dispositive, the existence of a contractual prohibition and the measures taken by Paine Schwartz to maintain confidentiality, is a relevant consideration to determine whether the quarterly reports are “of a kind that would customarily not be released to the public by the person from whom it was obtained.” Id. (citing Convention Center Authority, 774 A.2d at 47).The reason for our conclusion is the Rhode Island Supreme Court's holding requires this Office to review the totality of the circumstances and conclude that the redacted “financial or commercial information provided to the Government on a voluntary basis is ‘confidential”’ if it is “of a kind that would customarily not be released to the public by the person from whom it was obtained.” Convention Center Authority, 774 A.2d at 46; see also Argus Leader, 139 S.Ct at 2363. Here, the Rhode Island Supreme Court's non-disclosure holding in Convention Center Authority is once again relevant and applies in this case with equal force: “It was established * * * that ‘customers who contract with the [Authority] do not expect that the documents and financial information they provide will be disclosed to the public.” Id. at 48; see also Argus Leader, 139 S.Ct. at 2363 (“Presumably to induce retailers to participate in SNAP and provide store-level information it finds useful to its administration of the program, the government has long promised them that it will keep their information private.”).  It is likewise clear that the entities involved in this contractual agreement “do not expect that the documents and financial information they provide will be disclosed to the public.”  Convention Center Authority, 774 A.2d at 48.

Next, Complainant argues that the information in the quarterly reports has already been released to the public by Paine Schwartz and thus Paine Schwartz, and by extension, the Treasurer, has waived the ability to exempt the information contained therein as a confidential trade secret under Exemption (B).[8] However, the Treasurer has provided evidence that the information Paine Schwartz disclosed to the SIC, pursuant to its contractual agreement, is a generalized, high-level version of the itemized, detailed and particularized information contained in the specific quarterly reports provided by Paine Schwartz to the Treasurer that are the subject of Complainant’s request. In fact, Complainant makes no argument that the “particular details of each investment, the portfolio construction, the underlying investment thesis and strategic plan for each investment” contained in the subject quarterly reports, is already in the public domain or is of a kind that “would customarily” be released to the public by Paine Schwartz. More importantly, having reviewed the totality of the evidence - including our in camera review of the subject reports, which confirms the Treasurer’s description of the contents - and arguments submitted, as well as the relevant case law, we conclude that the information in the withheld quarterly reports is “of a kind that would customarily not be released to the public by the person from whom it was obtained.” Id.

We also consider the Treasurer’s argument that if the particular information in the quarterly reports were released to the public it “would be detrimental to the business success of the underlying portfolio companies, and thereby cause direct harm to the value and performance of ERSRI’s investments.” As the Critical Mass court explained, the purpose of Exemption 4 (and here, Exemption (B)) was to “encourag[e] cooperation with the Government by persons having information useful to officials.” Critical Mass Energy Project, 975 F.2d at 878. Accordingly, the argument that disclosure of this information would hinder the government’s ability to obtain similar information in the future was precisely the basis of the decision in Critical Mass. Id. at 877 (“[u]nless persons having necessary information can be assured that it will remain confidential, they may decline to cooperate with officials[,] and the ability of the Government to make intelligent, well-informed decisions will be impaired”).

Further, our analysis is consistent with a substantively similar issue examined in The Providence Journal v. Office of the General Treasurer, PR 14-15. There, a request was made for Due Diligence Reports received from Cliffwater, LLC, which the Treasurer provided, redacting certain commercial and financial information pursuant to Exemption (B). Based upon the totality of the evidence, the redacted material was “of a kind that would customarily not be released to the public by the person from whom it was obtained.”  See The Providence Journal, PR 14-15 (quoting Convention Center Authority, 774 A.2d at 47). Much of the commercial and financial information redacted in the Due Diligence Reports mirrors the information contained in the withheld Paine Schwartz Quarterly Reports such as individual fund “portfolio characteristics, investment history, management structure, industry specialization and investment strategies.” Id.  In PR 14-15, we ultimately found no violation with respect to the redactions made.  

We do question, however, whether only the names of each individual portfolio companies referenced in the quarterly reports can be made public. The Complainant makes only a passing reference to the names/identities of these companies and the Treasurer makes no argument that the identities of the companies themselves constitutes “[t]rade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature.” R.I. Gen. Laws § 38-2-2(4)(B). It is unclear to us whether the Complainant seeks this information, i.e., the names of the portfolio companies referenced in the quarterly report and if this information is reasonably segregable.  See R.I. Gen. Laws § 38-2-3(b).  If the Complainant seeks the names of the portfolio companies referenced in the quarterly report, he should communicate or clarify this request to the Treasurer.  The Treasurer will then have ten (10) business days to either provide the names of the portfolio companies to the Complainant or otherwise respond consistent with the APRA and this finding.  If the Complainant is dissatisfied with the Treasurer’s response, the Complainant may notify this Office. 

Nonetheless, all of the above emphasizes that while we agree that Rhode Island citizens have an interest in knowing how the ERSRI investments perform, it is readily apparent that much of the high-level information is already in the public domain either through the ERSRI website and publicly filed reports or through the SIC. Equally apparent is that the specific quarterly reports provided by Paine Schwartz to ERSRI contain additional information beyond that which is publicly available that constitutes “trade secrets” or “commercial or financial information of a privileged or confidential nature” within the meaning of the APRA. Accordingly, for the reasons explained herein, and consistent with the relevant case law, we find that the Treasurer’s withholding is consistent with Exemption (B) and find no violation.

Lastly, regarding Complainant’s argument that the Treasurer should be compelled to produce a Vaughn index or “privilege log” enumerating the redacted and withheld documents and specifying the reasons for claiming Exemption (B), we note that court’s have generally held that, “the FOIA places the burden on the agency to establish its right to withhold information under one of the enumerated FOIA Exemptions. An agency may do so through producing a Vaughn index, which is an affidavit that indexes and specifically describes withheld or redacted documents and explains why each withheld record is exempt from disclosure.” Schoenman v. F.B.I., 604 F. Supp. 2d 174, 196 (D.D.C. 2009) (internal citations omitted) (emphasis added). While we agree that the APRA does require a public body denying, in whole or in part, access to public records to state in writing “the specific reasons for the denial,” R.I. Gen. Laws § 38-2-7(a), the nature by which a public body fulfills this statutory obligation may vary depending on the facts of each case.  Here, the Treasurer made clear it was withholding the financial quarterly reports and it provided the basis for doing so.  Accordingly, no additional log or index was necessary for the Treasurer to satisfy its obligation that it provide “the specific reasons for the denial.”  R.I. Gen. Laws § 38-2-7(a).  This Office encourages public bodies to be as transparent as possible when responding to APRA requests to facilitate better public understanding of government records and actions and there may be circumstances where a Vaughn index or privilege log may be the best method to achieve that end.