| 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 | |
| | Attorney General |
VIA EMAIL ONLY
April 19, 2023
PR 23-38
James M. Donelan, Esquire
Nicholas P. Poulos, Esquire
Associate City Solicitor, City of Providence
Re: Donelan v. City of Providence
Dear Attorneys Donelan and Poulos:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Attorney Donelan (“Complainant”) against the City of Providence (“City”). For the reasons set forth herein, we find that the City did not violate the APRA.
The Complainant alleges that he submitted an APRA request to the City on behalf of his client seeking a police report associated with a motor vehicle crash resulting in the death of his client’s spouse. The City denied the Complainant’s request citing R.I. Gen. Laws § 38-2-2(4)(K), which exempts “preliminary drafts, notes, impressions, memoranda, working papers, and work products” and R.I. Gen. Laws § 38-2-2(4)(D) related to law enforcement records, which “(a) could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings”; and “(c) could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Complainant asks this Office to “review” the response and requests that “the report be released to me as a representative of his widow and the estate of the deceased.”
Associate City Solicitor, Nicholas P. Poulos, Esquire. submitted a substantive response on behalf of the City attaching several exhibits, including the Complainant’s initial APRA request and an email thread between Senior Assistant City Solicitor, Steven B. Nelson, and the Complainant. The City contends that the Complainant submitted his APRA request four (4) days after the motor vehicle incident and that the APRA request did not seek the police report associated with the motor vehicle crash, but instead sought “the basic information of the driver of the vehicle that struck him.” This is confirmed by the City’s Exhibit 1, a copy of the Complainant’s request from the City’s NextRequest portal. Notably, the Complainant’s request also acknowledges that “it may be a while before a complete police report is available.” The City provided evidence in the form of an email thread between Attorney Nelson and the Complainant wherein the City indicated that the police report was not complete as the incident was being reviewed by the Office of Attorney General for potential criminal charges. In that same email, Attorney Nelson provided the Complainant with the name, date of birth, vehicle information and motor vehicle insurance information of the driver in response to Complainant’s request for the “basic information of the driver of the vehicle.” Based upon the thread provided, the City emailed the Complainant at least three (3) times prior to denying his request in the NextRequest portal and the Complainant failed to respond.
Regarding the police report, the City maintains that at the time Complainant submitted his request – four (4) days after the incident – “[t]he police report for this fatal incident was not complete” and at the time the City closed the request, the incident was still under review by the Office of Attorney General. Nevertheless, the City maintains that, based upon this Office’s prior guidance under the APRA, it determined that it could provide certain information about the driver of the vehicle to the Complainant outside of the APRA process, which it did.[1]
The Complainant did not submit a rebuttal to the City’s response.
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 mandates that “all records maintained or kept on file by any public body *** shall be public records and every person or entity shall have the right to inspect and/or copy those records.” R.I. Gen. Laws § 38-2-3(a).
Our past findings and the caselaw make clear that the requester must indicate what documents are being sought under the APRA. See Howard v. Department of Environmental Management, PR 11-35. “[I]t is the requester's responsibility to frame requests with sufficient particularity to *** enable the searching agency to determine precisely what records are being requested.” Assassination Archives and Research v. Central Intelligence Agency, 720 F. Supp. 217, 219 (D.D.C. 1989) (citations omitted).[2]
Here, it is undisputed that Complainant’s request did not seek the police report of the incident. Instead, the exact language of Complainant’s request read, “[w]hile it may be a while before a complete police report is available I would like to get the basic information of the driver of the vehicle who struck him.” (Emphasis added). It is further undisputed that the City provided the Complainant with the “basic information” he sought via email, outside of the APRA process and that the subject police report was unquestionably a draft at the time Complainant submitted his request. See R.I. Gen. Laws § 38-2-2(4)(K). Accordingly, we find no violation.[3]
We credit the City for providing responsive information outside of the APRA process to protect the privacy interests of the individuals mentioned and to facilitate access to the Complainant who arguably had a heightened personal interest in the information. In this case, the City did what this Office frequently encourages public bodies to do, namely it considered whether any records or information that pertained to the Complainant (or his client) could be provided to him outside the APRA process to the extent the public body felt it appropriate to do so even though it did not consider the records to meet the definition of being public to everyone under the APRA. As a result, it provided the Complainant with the requested basic information. Although providing information in that manner outside the APRA process may not be appropriate in every situation, doing so, when possible, promotes the interests of being responsive to a citizen and can eliminate or at least narrow the issues in any complaint. Here, had the Complainant responded to the City’s numerous emails concerning his APRA request, it is possible that this Complaint would not have been necessary.
Although this Office has found no violation, nothing within the APRA prohibits an individual or entity from instituting an action for injunctive or declaratory relief in Superior Court as provided in the APRA. 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.
Sincerely,
PETER F. NERONHA
ATTORNEY GENERAL
By: /s/ Adam D. Roach
Adam D. Roach, Special Assistant Attorney General
[1] We also note that in its response to the Complaint, the City provided an additional one-page document to the Complainant – the “face sheet” for the “State of Rhode Island Uniform Crash Report” with minor redactions to dates of birth and a driver’s license number.
[2] The Rhode Island Supreme Court has stated that “[b]ecause [the] APRA generally mirrors the Freedom of Information Act [('FOIA')], 5 U.S.C.A. § 552 (West 1977), we find federal case law helpful in interpreting our open record law.” See Pawtucket Teacher's Alliance Local No. 920 v. Brady, 556 A.2d 556, 558 n.3 (R.I. 1989).
[3] We make no determination whether the Complainant may be able to obtain the requested report through other legal means or if it would now be available under the APRA (in whole or in part, i.e. redacted) if complete.