VIA EMAIL ONLY

March 31, 2023

Allen Durand

David R. Petrarca, Jr., Esquire

Legal Counsel, Scituate Police Department

Jon M. Anderson, Esquire

Legal Counsel, Scituate School District

                Durand v. Scituate School Committee   

Dear Mr. Durand and Attorneys Petrarca and Anderson:

We have completed our investigation into the separate but related Access to Public Records Act (“APRA”) Complaints filed by Mr. Allen Durand (“Complainant”) against the Scituate Police Department (“Department”) and Scituate School Committee (“Committee”). As the Complaints involve the same Complainant, subject matter, and substantively similar allegations and arguments, we will combine the two Complaints and issue one (1) finding. For the reasons set forth herein, we find that neither the Department nor the Committee violated the APRA.  

“All copies of reports, affidavits, witness statements, and documents pertaining to an incident involving [John Doe, a Scituate School District employee][1] on or about 2 weeks ago. Also, any person or persons involved in said incident. Any information of this incident on any police report.”

The Department denied Complainant’s request on the grounds that the documents are exempt pursuant to R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(b) and (4)(D)(c), and that no reasonably segregable portion of the documents was releasable pursuant to R.I. Gen. Laws § 38-2-3(b). The Complainant submitted an administrative appeal to the Department Chief of Police arguing that “any police report is public knowledge.” The Chief of Police affirmed the response of the Public Records Officer and upheld the denial of any responsive documents.

The Complainant submitted a substantively similar request to the Committee seeking:

“Copies of all reports, affidavits, witness statements and documents pertaining to an incident involving [John Doe, a Scituate School District employee] on or about two (2) weeks ago and also any person or persons involved in said incident.”

The Committee responded that it “does not have any affidavits” and that any documents it maintains responsive to the request are “not public documents because they are personnel and other personal individually-identifiable records” exempt from disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b) “and/or investigatory records” pursuant to R.I. Gen. Laws § 42-46-5(4)(P).”[2]

The Complainant submitted an administrative appeal to the Superintendent of the Scituate School Department, who affirmed the denial.

Dissatisfied with both denials, the Complainant submitted Complaints against the Department and the Committee offering substantively similar arguments. Complainant contends that the reports and/or documents he seeks involve an allegedly inappropriate relationship between two (2) Scituate District employees and “is a very serious situation.”

Attorney David R. Petrarca, Jr. submitted a substantive response on behalf of the Department, which included affidavits from Department Chief of Police, Eric C. Rollinson, and Department Administrator/Police Support Specialist, Toni M. DePalo. The Department contends that it maintains one (1) incident report responsive to the Complainant’s request that is exempt in its entirety pursuant to R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(b) and (5)(P). The Department maintains that this document “consists of a single report” and that “[b]ecause of the nature of the contents of the report, it is awkward to articulate with specifics each and every reason why the document is exempt in its entirety, save to say that its disclosure would constitute an unwarranted invasion of personal privacy under both § 38-2-2(4)(A)(I)(b) and § 38-2-2(4)(P)” that “cannot be reasonably abated and segregated through redaction.” The Department argues that “[w]hile the Complainant has stated he believes the School Department employees have partaken in scandalous behavior *** he has not explained how the privacy of these individuals must therefore be invaded based upon his allegations and mere rumors. Nor has the Complainant explained how the public interest would likely be advanced by the release of the information.” (Emphases in original). The Department further states that no arrest was made in connection with the report.

The Department provided this Office with an unredacted copy of the report for our in camera review.

The Complainant did not submit a rebuttal to the Department’s response.

Attorney Jon M. Anderson provided a substantive response on behalf of the Committee. The Committee contends that it maintains one (1) document responsive to the Complainant’s request, which is “an incident report prepared by a Scituate Police Officer.” The Committee states that the report was “not criminal,” involves “two specifically identified individuals” and “contains highly personal information.” The Committee argues that “the focus of both this incident report and Mr. Durand’s APRA request is on two specifically identified individuals, not the operation of the Scituate School Committee. *** Releasing this incident report is not in the public interest where privacy interests outweigh the public’s interest.” The Committee argues further that the incident report is also exempt from public disclosure pursuant to R.I. Gen. Laws § 38-2-2(4)(P) as “the Superintendent of Schools collected this incident report for the purpose of investigating whether there were any possible violations of statute, rule or regulation.” Lastly, the Committee maintains that “redaction is not a viable solution” as “Mr. Durand himself claims to know exactly who is identified in this incident report. Redaction would accomplish nothing for anyone in terms of either the privacy interest of those persons identified in this incident report or the Superintendent’s duty to investigate whether any statutes had been violated.”

The Committee provided this Office with an unredacted copy of the incident report for our in camera review.

The Complainant did not submit a rebuttal to the Committee’s response.  

Unless exempt, all records maintained by a public body are presumed to be public records. See R.I. Gen. Laws § 38-2-3(a). The APRA exempts from disclosure “[p]ersonnel and other personal individually identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et seq.” 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.” R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). See Judicial Watch, Inc. v. U.S. Dept. of Justice, 898 F.Supp.2d 93, 100 (D.C. Cir. 2012) (“The Freedom of Information Act's (FOIA) strong interest in transparency must be tempered by the legitimate governmental and private interests that could be harmed by release of certain types of information.”).[3]

In this case, the record reflects the Complainant sought law enforcement and other records related to two (2) specific Scituate School District employees and a particular incident. Although the APRA provides that records “reflecting the initial arrest of an adult” are public, see R.I. Gen. Laws § 38-2-2(4)(D), the Complainant does not dispute that the records he seeks do not pertain to an arrest.

Based on our in camera review, the documents maintained and withheld by the Department and the Committee are substantively similar, containing the same title (“Scituate Police Department Incident Report”), incident number, date/time reported, reporting officer and status (“No Crime Involved”). The report withheld by the Department contains specific references to private citizens’ home addresses, telephone numbers, dates of birth and social security numbers, while this information is redacted on the Committee’s copy. Nonetheless, the narrative of the incident contained in both copies of the report are identical and involve two (2) specifically identified Scituate School District employees and names other School District employees and/or representatives. The statements made in the report are highly personal and include information about the employees that would implicate privacy interests.

Although normally a person making an APRA request need not provide a reason for the request, see R.I. Gen. Laws § 38-2-3(j), the requests at issue here implicate specific individuals’ privacy interests. Accordingly, disclosure is only required if the public interest in disclosure outweighs those privacy interests.

The public has an interest in a document that “sheds light” on how government operates. See Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-773 (1989). The Complainant emphasizes that this is “a very serious situation” and that “this report is damning” and calls for the School Committee’s resignation as he believes they attempted to “cover” the situation. However, the Complainant has not adequately identified a public interest, as defined in the APRA, in the requested records or demonstrated that disclosure of the records would shed light on the government's operations. Complainant provides no support for his conclusory statement of a “cover” by the Committee, nor does such a document appear to provide any support to such a conclusion. Complainant also states that this matter was discussed publicly during open session of a Committee meeting (albeit because Complainant himself brought the matter up during public comment). Complainant’s contention that his request pertains to records which would shed light on the Committee’s “cover” is undermined by the fact that Complainant's APRA request only seeks records pertaining to two (2) specific individuals and a specific incident. Further, the details provided by Complainant in his filings with this Office further undermine his argument that the Committee tried to “cover” the situation. It appears from our review that Complainant's request is aimed at shedding light on the alleged conduct of John Doe and another actor rather than the government. Based on the record provided to us, we conclude that the privacy interests implicated outweigh any public interest that would be served by disclosing the requested documents, assuming any exist.

Further, redaction of the employees’ names will not address the privacy interests because the APRA request specifically sought records pertaining to a particular person and incident. See Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 559 (R.I. 1989) (“the report at issue is in the present case specifically relates the job performance of a single readily identifiable individual. Even if all references to proper names were deleted, the principal's identity would still be abundantly clear from the entire context of the report.”).

For all these reasons, we find no violation on the part of the Department or the Committee.[4]