VIA EMAIL ONLY

April 18, 2023

Mr. Josh Fenton

GoLocalProv

Mr. Matthew Jerzyk, Esquire

Central Falls City Solicitor

Dear Mr. Fenton and Attorney Jerzyk:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Josh Fenton on behalf of GoLocalProv (“Complainant”) against the City of Central Falls (“City”). For the reasons set forth herein, we find that the City violated the APRA by failing to provide all responsive records within the deadline required by the APRA.   

The Complaint to this Office followed.[1]

The City provided a substantive response from its solicitor, Matthew Jerzyk, Esq., that included four affidavits from City officials, as well as a copy of the records provided in response to the APRA request. The City’s response to the Complaint asserts that conducting a search for records responsive to the Complainant’s APRA request required a “laborious” process. The City was required to search for records from a nine-year timespan between 2013-2021 that pertained to a prior administration. Solicitor Jerzyk represents, “[t]he City’s search proved to be a difficult one and requests had to be submitted to the City’s off-site storage location, Iron Mountain, for boxes of financial records that could potentially include the requested records for the requested years.”  While the request was pending, the City’s legal clerk was out of the office for a number of days due to illness, as well as a pre-planned vacation. The City asserts that its initial substantive response to the APRA request “included all documented travel records as provided by the finance department and copies of the city’s annual budget for certain responsive years which included the line item for executive travel both as a prospective budgeted item as well as prior year actual expenditures.” Regarding the issue with the ledger document, the City Solicitor asserts that in response to the Complainant’s concern that the “memo line” column that was not fully readable, the Solicitor invited the Complainant to come in person to visually inspect the document, and that the Finance Department was subsequently able to “discover the un-truncated memo line in underlying purchase orders and those documents were forwarded” to the Complainant.

The City also explains that on October 1, 2022, the former administrative aide to the former Mayor “discovered additional travel related documents in the mayor’s office” that were reviewed and transmitted to the Complainant “without redaction or withholding on October 4, 2022 in a Second Supplemental Response.” Additionally, the Finance Department notified the Solicitor that it had identified two credits to the City in the Fiscal Year 2017-2018 General Ledger that the Finance Department identified as the former Mayor’s reimbursement to the City for his travel costs relative to a certain trip, and that these documents were forwarded to the Complainant “without redaction or withholding on October 4, 2022 in a Second Supplemental Response.”

The City asserts that in connection with this APRA request, it “attempted to be accessible and responsive including waiving any fee requirement for the dozens of hours that were required for the search and retrieval and review of documents.”  The City also acknowledges that “this search and retrieval process demonstrated that the City’s policies and record keeping relating to municipal travel were not sufficient and, subsequently, [the City’s Finance Director] promulgated a new municipal travel policy for all travel - whether paid by taxpayers or not - that will provide clear and direct travel records for all city officials traveling in their official capacity.”

We acknowledge the Complainant’s rebuttal, which argues that the former Mayor went on dozens of trips and that dollars were expended without proof of the cost. The Complainant asserts that “[t]ens of thousands of dollars were transferred, and there are no reasonable records of how Diossa’s travel was paid or if he went on all the trips. These are basic requirements at the federal, state, and municipal levels of government for authorizations before payment or reimbursement.” 

Upon reviewing the parties’ submissions in this matter, this Office noticed a line in Solicitor Jerzyk’s affidavit attesting that he “sent out the response to the records request by [Complainant] that included all documented travel records as provided by the finance department and copies of the city’s annual budget for certain responsive years which included the line item for executive travel both as a prospective budgeted item as well as prior year actual expenditures, except for elected official correspondence exempt under the statute.” (Emphasis added). This single line in Solicitor Jerzyk’s affidavit filed in response to this Complaint was the first indication in the record that the City may have withheld responsive records. This Office required the City to provide a supplemental response clarifying whether any responsive records had been withheld, and if so, addressing the basis for withholding, whether any claimed exemption had been waived by failing to cite it, see R.I. Gen. Laws 38-2-7(a), and whether any violation was willful and knowing or reckless. This Office also permitted the Complainant to submit a response to the City’s supplemental submission.

On February 23, 2023, the City provided a supplemental submission stating that elected official correspondence had been withheld in response to the request and acknowledging that the City had failed to cite an exemption for doing so.  Specifically, the city stated, “[t]hese mayoral emails were withheld pursuant to R.I. Gen. Laws 38-2-2(4)(M) and the historic practice of the City to utilize this exemption for mayoral correspondence. The City’s response to the APRA did not properly state this exemption.” As part of its supplemental submission, the City provided the Complainant and this Office with 146 pages of emails that previously had been withheld. The City acknowledged that it had likely waived the exemption by failing to cite it in its response to the APRA request and asserted that it was accordingly providing the previously withheld emails, with only limited redaction to personal information such as cell phone numbers. The Complainant submitted a supplemental response asserting that the City had engaged in “repeated and blatant violations of the public records and access to public records statutes.”  The Complainant did not take issue with the limited redaction of personal information, such as cell phone numbers, in the emails that were provided.

·         Whether the City failed to timely produce all responsive records it maintains.

Pursuant to the APRA, a public body has ten (10) business days to respond in some capacity to a records request, whether by producing responsive documents, denying the request with reason(s), or extending the period necessary to comply as provided in the APRA. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7. A public body may extend the time to respond to an APRA request by an additional twenty (20) business days “if it can demonstrate that the voluminous nature of the request, the number of requests for records pending, or the difficulty in searching for and retrieving or copying the requested records, is such that additional time is necessary to avoid imposing an undue burden on the public body.” R.I. Gen. Laws § 38-2-3(e).

Here, the APRA request was submitted on August 12, 2022.  The City asserted the extension provided for in the APRA and the Complainant has not argued that it was impermissible for the City to assert the extension.  Accordingly, the City’s response was due by September 26, 2022. The record is undisputed that although the City sent its initial response on September 26, 2022, it subsequently located and provided additional responsive records to the requester on September 27, 2022 and October 4, 2022. These supplemental productions were after the deadline provided for in the APRA.

The APRA requires public bodies to conduct a reasonable search for records. See J.H. Lynch & Sons v. Rhode Island Department of Transportation, PR 19-06 (“the APRA requires a public body to conduct a reasonable search aimed at locating documents that are responsive to the particular request”). We recognize that it is entirely possible that a public body could conduct a reasonable search that complies with the APRA and subsequently discover additional responsive records. Under those circumstances, we would encourage public bodies to supplement their response, as Central Falls has done here. However, the City has not provided evidence that it conducted a reasonable search for records in the first instance.

The City states that some of the subsequently discovered records were located in the mayor’s office. The City has not provided any explanation why those records should not have been discovered as part of a reasonable search for responsive records related to the former Mayor’s travel. Additionally, after the APRA’s deadline, the City provided a document revealing an un-truncated memo line related to the ledger and records related to two items listed in the ledger. There is no dispute that the ledger itself was located during the initial search and provided to the Complainant so there is no apparent reason (at least on this record that we have reviewed) these additional documents related to the ledger should not also have been identified and produced initially.  The City does not provide any evidence that these documents should not have been identified as part of a reasonable search prior to responding to the APRA request.  Accordingly, based on these undisputed facts, we find the City violated the APRA by failing to timely provide all responsive records.

Additionally, as a result of this Office’s investigation into this Complaint, the City revealed that it maintained 146 pages of emails that it had withheld without citing an exemption. Indeed, based on our review of the City’s APRA response, the City not only failed to cite an exemption as a basis for the withholding, but also failed to even state that it maintained additional responsive records that it was not providing. The City’s supplemental response in connection with this Complaint indicates that the withheld emails were “obtained in the search and retrieval process with the city’s IT vendor” and notes that the City’s response to the APRA Complaint and request both referenced an IT search. But a timeline provided in the City’s response to the APRA request gives the impression that any responsive records identified during the IT search were being produced:

“Saturday, September 24 and Sunday, September 25 – Jerzyk finalizes review of hundreds of pages of documents and records identified by both IT and finance departments.

[]Monday, September 26 – Records sent to GoLocalProv.”

The undisputed evidence demonstrates that the City failed to timely produce these withheld emails, or to even indicate, prior to this Office’s inquiry, that responsive records were being withheld. Accordingly, the City violated the APRA by failing to indicate that it was withholding records in response to the request and failing to cite the basis for withholding.  See R.I. Gen. Laws § 38-2-7(a) (“Any denial of the right to inspect or copy records, in whole or in part provided for under this chapter shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial[.]”); see also R.I. Gen. Laws § 38-2-3(b) (“If an entire document or record is deemed non-public, the public body shall state in writing that no portion of the document or record contains reasonable segregable information that is releasable.”).

·         Whether there is evidence the City maintains additional responsive records that have not yet been produced.

The APRA also states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or copy such records.  See R.I. Gen. Laws § 38-2-3(a).  The APRA does not require “a public body to reorganize, consolidate, or compile data not maintained by the public body.” R.I. Gen. Laws § 38-2-3(h). “A public body that receives a request to inspect or copy records that do not exist or are not within its custody or control shall *** state that it does not have or maintain the requested records.” R.I. Gen. Laws § 38-2-7(c).

Here, the Complainant generally asserts the City did not produce all the responsive records that should have been in its possession. In response to this Complaint, the City produced several affidavits attesting to its search process.  The Law Department clerk provided an affidavit attesting that when an APRA request is received, she forwards the request to “the necessary city department that may have the requested information.” In connection with this particular request, she coordinated with the Finance Department and IT Department to locate and retrieve responsive records. Solicitor Jerzyk submitted an affidavit wherein he attests that his response to the APRA request “included all documented travel records as provided by the finance department and copies of the city’s annual budget for certain responsive years which included the line item for executive travel both as a prospective budgeted item as well as prior year actual expenditures.”  He attests that “[n]o documents that were provided by the finance department were withheld from the response.” As discussed above, Solicitor Jerzyk’s affidavit did indicate that certain elected official correspondence may not have been provided, but that correspondence has now been provided to the Complainant in response to this Office’s inquiry to the City. The City’s supplemental response states that “the City certifies that all responsive records are included in the response to this email and have been provided to the Complainant.”

The Finance Director for the City also submitted an affidavit. She attests that once the Finance Department received a copy of the Complainant’s APRA request, “both paper files and electronic files were reviewed.” Upon determining that the majority of responsive records would be located at the offsite storage facility, a member of the Finance Department staff contacted the City Clerk’s office with a list of storage boxes that would need to be retrieved. Once the records were retrieved from storage, “[t]he Finance Department then reviewed the boxes for relevant documents” and “[a]ll relevant documents were hand delivered to our Legal Department.”  The Finance Director attests that “[o]n September 30, 2022, the Legal Department asked me to confirm again that there were no additional documents outstanding” and she “responded verbally and reiterated that the Finance Department has provided all the documents that we had found which were responsive to the [APRA] request.” The chief of staff for the City also attests that to the best of her knowledge, “there are no other documents in the mayor’s office that pertain to” the former Mayor’s travel while he was Mayor.

The Complainant did not provide any specific evidence that the City maintains any particular additional responsive records that it failed to produce, but rather generally alleges that the City should have possessed additional records related to the subject matter of the former Mayor’s travel. It is well-established that “the APRA does not require a public body to disclose records that do not exist or that are not within its custody or control.” Lopez v. City of Providence, PR 20-03; see also R.I. Gen. Laws §§ 38-2-3(h), 38-2-7(c). Based on the record before us, there is no specific evidence that the City failed to conduct a reasonable search or failed to produce responsive records that are within its custody or control.[2] Consistent with the text of the APRA and this Office’s prior findings, the City did not violate the APRA by not producing records it does not maintain. See, e.g., Lopez v. City of Providence, PR 20-03; Hoff v. Town of Charlestown, PR 22-7; Murphy v. City of Providence, PR 15-07; O’Rourke v. Bradford Fire District, PR 13-11; see also R.I. Gen. Laws §§ 38-2-3(h), 38-2-7(c).

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).

Here, we do not find injunctive relief to be appropriate because even though the City’s production of certain records was tardy, the City ultimately produced the records to the Complainant with limited redaction and without cost.[3] Additionally, we have not been presented with evidence that the City maintains any additional responsive records that have not been produced.

We now turn to whether the City’s violation was willful and knowing or reckless. The record reveals that in order to respond to the request, the City was required to search documents from a nine year timeframe and a prior administration, which required searching offsite storage locations. Although the City located additional responsive records after its deadline for responding to the request, the City promptly provided supplemental productions. The record also reveals that the City expended substantial time responding to this request without assessing costs. However, we are very troubled by the City’s withholding of 146 pages of emails without indicating to the Complainant that any responsive records were being withheld. This violates the letter and spirit of the APRA, which provides that members of the public should be provided access to public records and should be clearly informed when they are being denied access to requested records. We consider this to be a very close call regarding whether the City’s violation was willful and knowing or reckless. Given that the emails have now been produced, we have not conducted an exhaustive review of those previously withheld documents, but we note that each document consists of an email or email chain that was to, from, or cc’d James Diossa and appears to relate to official business. As such, the previously withheld emails all seem to fit within the ambit of Exemption M, which permits withholding correspondence of elected officials in their official capacities.  R.I. Gen. Laws § 38-2-2(4)(M).  Accordingly, it appears that the City would have been permitted to withhold these emails had it properly asserted Exemption M in its response to the APRA request. This factor mitigates against finding that the City’s violation was intentional given that its failure to acknowledge the withheld emails primarily harmed the City by depriving it of the opportunity to cite an exemption that would otherwise have been available to it. As such, the City’s disclosure of these emails as a result of this Office’s investigation is itself a consequence of the City’s violation.

The City’s supplemental response also noted that “[w]hile the withheld records provide some background information on the ‘back and forth’ of travel logistics via email, the material financial records for taxpayer-funded travel were provided in the prior City responses.” We also do not find evidence of a similar violation by the City in the last several years. Although this is a very close question, on this record, we do not find the violation to warrant civil fines. Nonetheless, this finding serves as notice that the conduct discussed herein violated the APRA and could serve as evidence of a willful and knowing or reckless violation in a future similar case. The City is admonished to be extremely mindful of the importance of candidly and completely responding to APRA requests going forward, including by clearly indicating whether any records are being withheld and the basis for any withholding.

Although this Office will not file suit in this matter, nothing within the APRA prohibits the Complainant from filing an action in Superior Court seeking injunctive or declaratory relief. See R.I. Gen. Laws § 38-2-8(b).

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