| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
March 24, 2023
PR 23-32
Mr. Jason Richer
Mr. David Igliozzi, Esquire
Town Solicitor, North Smithfield
Re: Richer v. Town of North Smithfield
Dear Mr. Richer and Attorney Igliozzi:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Jason Richer (“Complainant”) against the Town of North Smithfield (“Town”). For the reasons set forth herein, we find that the Town did not violate the APRA.
The Complainant alleges that he submitted an APRA request to the Town seeking written legal opinions between the solicitor and the Town pertaining to a particular plat of land since January 1, 2013. The Complainant contends that the Town’s withholding of the responsive records violates the Town Charter. The Complainant provided an excerpt of the Town Charter, which states, “All written legal opinions furnished to the town administrator, the town counsel and all departments, offices and agencies of the town shall be filed with the town clerk and become a public record.” The Complainant provided a copy of a portion of the Town’s response to the APRA request, which stated that any communications between the solicitor and the town administrator, town council, or other town officials related to the subject matter of the request “constitute confidential communications protected from disclosure pursuant to the attorney-client privilege, and/or were prepared in anticipation of litigation, and thus are protected from disclosure under the attorney work product doctrine, and confidential pursuant to 5 U.S.C. § 552(b)(5), and confidential pursuant to” APRA exemptions (A)(I)(a), (E), and (K). The Town’s response also asserted that no written legal opinion had been provided pursuant to the relevant section of the Charter. [1]
The Town submitted a response to the Complaint, asserting that “[a]ny interactions or communications that this office may have had with the town administrator, town council, or other town officials related to the matter constitute confidential communications protected from disclosure pursuant to the attorney-client privilege and/or were prepared in anticipation of litigation, and thus protected from disclosure under the attorney work product doctrine.” The Town asserts that the provisions of the Town Charter “are not subject to review under the APRA.” The Town also notes that its APRA response to the Complainant stated that no written legal opinions have been issued pursuant to the section of the Charter cited by the Complainant. The Town provided the withheld records for in camera review, along with a letter providing context and information regarding the withheld records.
We acknowledge the Complainant’s rebuttal, which takes issue with the Town’s assertion that the requested records are confidential under the cited exemptions. The Complainant also disputes that no opinions were issued pursuant to the relevant section of the Charter, noting that he has had conversations with the Town Clerk during which the Clerk indicated that communications occurred between the solicitor and Town officials related to the zoning issues raised by the Complainant.
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 records maintained or kept on file by public bodies are public records unless they are specifically exempt under one of the exemptions set forth in the APRA. See R.I. Gen. Laws §§ 38-2-2(4); 38-2-3(a). Relevant to this matter, the APRA exempts:
· All records relating to a client/attorney relationship, R.I. Gen. Laws § 38-2-2(4)(A)(I)(a);
· Any records that would not be available by law or rule of court to an opposing party in litigation, R.I. Gen. Laws § 38-2-2(4)(E); and
· Preliminary drafts, notes, impressions, memoranda, working papers, and work products, R.I. Gen. Laws § 38-2-2(4)(K).
We have previously noted that Exemption E is a vehicle that incorporates judicially-recognized litigation privileges and court orders into the APRA’s exemptions. Rhode Island Center for Justice v. Rhode Island Department of Corrections, PR 20-44; see also Hydron Labs., Inc. v. Dep’t of Atty. Gen. for State, 492 A.2d 135, 139 (R.I. 1985) (“It was never the Legislature’s intent to give litigants a greater right of access to documents through APRA than those very same litigants would have under the rules of civil procedure. Therefore, exemption [E] of APRA was enacted to limit production under APRA to the scope of production allowed in pending litigation.”).
Based on the Town’s in camera submission, the Town withheld three documents in response to the APRA request. Given the in camera nature of our review, we will only discuss the records in general terms. The first withheld record is a cover email and memorandum from the solicitor to certain Town officials. Although labels are not dispositive, we note that both the cover email and memorandum are labeled “CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED WORK PRODUCT.” The documents also specifically state, “This preliminary information does not constitute a written legal opinion (Article VI, Sect. 4(3) of the North Smithfield Town Charter.[)].” Our review of this record confirms that it is an attorney-client communication regarding legal issues and fits within the ambit of Exemptions (A)(I)(a), (E), and (K).
The second withheld record is a memorandum from the solicitor to certain Town officials. It is similarly labeled “Attorney Client Confidential Communication” and pertains to a legal matter. We find that it also fits within the ambit of the three cited exemptions.
The third document lists information pertaining to a legal matter. Based on the Town’s in camera submission, this document was located in the solicitor’s files and the Town does not have evidence that the document was ever finalized or sent to anyone. The content and context of the document indicate that it is in draft form and was likely drafted by an attorney. We find that this document is also exempt under the three cited exemptions.
This Office reviewed a copy of the Town’s Charter, which is publicly available. The relevant portion cited by the Complainant pertains to the “Town Solicitor.” Under “Duties,” it states, “All written legal opinions furnished to the town administrator, the town council and all departments, offices and agencies of the town shall be filed with the town clerk and become a public record.” There is no other context or content in this section of the Charter regarding this language.
Our task is not to determine whether the Town complied with the Town Charter. The Complainant sought the requested records pursuant to the APRA and it is this Office’s obligation to enforce the provisions of the APRA, which delineates certain categories of records that, per state law, are exempt from the definition of public record under the APRA. See R.I. Gen. Laws § 38-2-8; see also Hydron Labs, 492 A.2d at 139 (“It was never the Legislature’s intent to give litigants a greater right of access to documents through APRA than those very same litigants would have under the rules of civil procedure.”). While the Town Charter might provide additional access above and beyond the APRA — a legal conclusion we need not reach — the interpretation and enforcement of the Charter is beyond the scope of our authority and we limit our conclusion to the APRA.[2]
For these reasons, we find that the Town did not violate the APRA by withholding the three records.
We thank you for your interest in keeping government open and accountable to the public.
Sincerely,
PETER F. NERONHA
ATTORNEY GENERAL
By: /s/ Katherine Sadeck
Katherine Sadeck
Assistant Attorney General
[1] The Town’s response to the APRA also stated, “[t]his office was retained in January 2015, and we have no knowledge of town records prior to this date.” The Complaint in this case focused on alleging that the Town improperly withheld records, it did not raise any allegations regarding the sufficiency of the Town’s search for records for the time period of January 1, 2013 to the date when the office that is currently solicitor assumed that position. If the Complainant has any concerns regarding that issue, he is free to submit a complaint regarding that issue.
[2] We note that the Town represents that the records in question do not convey any final, formal legal opinion, an assertion that is supported based on our in camera review. In that regard, there is some question whether the withheld records are even responsive to the APRA request as framed. Nonetheless, we do not reach that issue since the Town erred on the side of identifying and exempting these records in response to the request and we have determined that, assuming the records are responsive to the request, they were permissibly withheld pursuant to the cited exemptions.