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
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VIA EMAIL ONLY
April 24, 2023
Lisette M. Gomes, Esquire
Assistant City Solicitor, City of Pawtucket
Re: Farinelli v. City of Pawtucket
Dear Ms. Farinelli and Attorney Gomes:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Ms. Lynn Farinelli (“Complainant”) against the City of Pawtucket (“City”). For the reasons set forth herein, we find that the City violated the APRA.
The Complainant submitted a three-part APRA request to the City seeking:
“I would like to APRA all questions (emails) Melissa DaRosa has sent to Chief Tina Gonsalves [sic] and yourself [City Solicitor Frank J. Milos, Jr., Esquire] for the last 6 months and any and all responses to those emails (questions).
I would also like all SOP's for the Fire Department Created in the last 5 years.
I would also like Tina Gonsalves [sic] Calendar for the last 6 months for both her time as PSD and the Chief. All appointments, trainings, daily schedule.” (Parenthetical in original).
The City responded by denying Part (1) of Complainant’s request pursuant to APRA exemptions R.I. Gen. Laws § 38-2-2(4)(A)(i)(a) to the extent responsive emails relate to a client/attorney relationship and R.I. Gen. Laws § 38-2-2(4)(M) to the extent they relate to “correspondence of or to elected officials *** in their official capacities.” In connection with Part (2), the City provided copies of Fire Department SOGs (Standard Operating Guidelines) redacting information “the City believes could/would disclose techniques and/or procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions.” See R.I. Gen. Laws § 38-2-2(4)(D). In response to Part (3), the City provided “a copy of [Chief Goncalves] Outlook Calendar dating from October 4, 2021 to April 4, 2022” that contains redactions to “personally identifiable information contained in the calendar such as names, addresses, personal telephone numbers, case numbers and medical information.”
Dissatisfied with the City’s response, the Complainant filed a Complaint with this Office alleging that the City posted an email from Councilwoman Melissa DaRosa to Chief Goncalves on its website. Complainant argues that the denial of her request and subsequent posting of an email is a violation of APRA. The Complainant also argues that “the Chief’s Calendar is OVERLY redacted for no reason.” (Emphasis in original). The Complaint takes no issue with the City’s response to Part (2) of the request or the City’s withholding of all emails responsive to Part (1) of her request for emails between Councilwoman Melissa DaRosa and Attorney Milos. As such, our analysis will focus on the City’s response to Part (1) seeking emails between Councilwoman Melissa DaRosa and Chief Goncalves and the City’s response to Part (3).
Assistant City Solicitor, Lissette M. Gomes, Esquire provided a substantive response on behalf of the City. The City contends that it properly withheld all emails responsive to Part (1) of the Complainant’s request as such emails fell within the ambit of Exemption (M), which exempts “correspondence of or to elected officials *** in their official capacity.” See R.I. Gen. Laws § 38-2-2(4)(M). Next, the City argues that “the only information redacted from the Chief’s calendar included certain personally identifiable information such as names, addresses, personal telephone numbers, case numbers and medical information.”
The City provided this Office with a copy of all responsive records in unredacted form for our in camera review.
We acknowledge Complainant’s rebuttal wherein she reiterates her argument that the City should not be allowed to withhold emails between Councilwoman DaRosa and Chief Goncalves because the City posted an email between these two parties on the City website.  The Complainant does not contend that the email posted on the City website was responsive to her request, nor does she provide a copy of the email or a link to the City’s website for this Office to review. The Complainant also contends that Amanda Milkovitz (a reporter for The Boston Globe) was provided with a month of Chief Goncalves’ calendar unredacted, while Complainant was provided the same month in redacted form.
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 states that, unless exempt, all records maintained by a public body shall be public records and every person shall have the right to inspect and/or to copy such records. See R.I. Gen. Laws § 38-2-3(a). Rhode Island General Laws § 38-2-2(4)(M) exempts from public disclosure “[c]orrespondence of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities.”
The exemption broadly applies to “correspondence” of elected officials “in their official capacity.” R.I. Gen. Laws § 38-2-2(4)(M). It is undisputed that Councilwoman DaRosa was an elected member of the Pawtucket City Council at the time of the request. See Markey v. South Kingstown School Department, PR 18-37 (finding that correspondences of or to elected officials in their official capacities are properly exempt under Exemption (M)); see also Casazza v. Smithfield Public Schools, PR 23-26 (finding that correspondences of or to an elected member of the School Committee were exempt from public disclosure). As formulated in the Complaint, the Complainant does not contend that the redacted documents are outside the ordinary scope of Exemption (M). Instead, the Complainant contends that the City disclosed one email between Councilwoman DaRosa and Chief Goncalves on the City website and thus should not be allowed to “pick and choose” what it categorizes as exempt.
Part (1) of Complainant’s request, in relevant part, sought: “I would like to APRA all questions (emails) Melissa DaRosa has sent to Chief Tina Gonsalves [sic] *** for the last 6 months and any and all responses to those emails (questions).
After conducting an in camera review of all withheld emails between Councilwoman DaRosa and Chief Goncalves, we conclude that the correspondences involved communications between an elected official, to wit: Councilwoman DaRosa, acting in her official capacity as a member of the Pawtucket City Council, with the Chief of the Pawtucket Police Department and sometimes others. The Complainant’s sole argument that the withheld emails should be public is a conclusory statement that the City should not be permitted to “pick and choose” which emails it discloses and which it withholds. However, Exemption (M) broadly applies to “correspondence” of elected officials “in their official capacity.” R.I. Gen. Laws § 38-2-2(4)(M). The Complainant does not provide any evidence or argument that the subject documents fall outside that category.
Seemingly, the Complainant’s argument is premised on a waiver theory, i.e., because the City disclosed one email from Councilwoman DaRosa to Chief Goncalves, it must disclose all emails from Councilwoman DaRosa to Chief Goncalves. Two problems confront this reasoning. First, we have not been provided the email posted to the City’s website, thus, we are unable to determine whether the posted email was responsive to the instant APRA request. Second, no authority has been presented to support a waiver argument and there is at least some Rhode Island authority that counters a waiver argument. See Fuka v. Department of Environmental Mngt., PC 2007-1050 (R.I. Super. April 17, 2007) (Indeglia, J.) (“Simply because the DEM has previously released this information does not strip the licensees of the privacy protections normally afforded to such information.”).
Based on the totality of the evidence before us, including our in camera review, we find that the withheld documents fall within the ambit of Exemption (M). Accordingly, we find no violation.
Acknowledging and accepting Complainant’s argument that the City allegedly disclosed an email between Councilwoman DaRosa and Chief Goncalves – although we have not been provided with confirmation of that or a copy of the alleged posting – we note that “the APRA is a floor and not a ceiling: a public body may, in its discretion, provide access to an exempt document in favor of government transparency and the spirit of the APRA.” Law v. Town of Smithfield, PR 19-26. “This Office's role under the APRA requires us to apply the existing law and determine what documents must be disclosed. Although this Office encourages public bodies to consider disclosing records even when they are subject to an exemption, failing to provide access to properly exempted documents does not violate the APRA.” Providence Journal v. Executive Office of Health and Human Services, PR 20-01.
At the outset, we note that there is no specific APRA exemption for the calendars of public employees. Accordingly, public bodies receiving requests for calendars – and this Office analyzing APRA complaints – must consider whether the particular calendar entries contain information that may be exempt pursuant to the APRA’s existing 27 exemptions. Here, the only exemption cited by the City for redacting certain calendar entries is R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).
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.”). “The touchstone concerning whether public disclosure of a record maintained by the government outweighs an individual's privacy is whether the records concern “official information” about the government agency or sheds light on the conduct of government.” Lardner v. Central Falls Detention Facility Corporation, PR 22-08.
Part (3) of Complainant’s request sought: “Tina Gonsalves [sic] Calendar for the last 6 months for both her time as PSD and the Chief. All appointments, trainings, daily schedule.”
Based upon our in camera review of the unredacted calendar for Chief Goncalves, we have some questions regarding three (3) categories of redactions made and why the City contends said redactions fall within R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).
First, redactions were made to Zoom or virtual meeting call-in or web-access information for meetings that already occurred. While there may very well be a reason to justify redaction, on this record, it is unclear to this Office why this information related to past meetings was redacted as pertaining to “personally identifiable information” or how disclosure of the same would “constitute a clearly unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). Based upon our in camera review of the calendar, each entry for a virtual meeting contained a unique web-link, access code or telephone number rather than a standing link or number that was used more than once, which could enable someone not invited to that meeting to be able to access the same. We note that the City did not redact the title of the meeting event, just the access information. Additionally, the City offers no argument or evidence addressing how disclosure of this information would “constitute a clearly unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).
Similar redactions were made to the locations of Board or Commission meetings, Rhode Island Police Chief’s Association meetings or events at restaurants or other social establishments – all meetings or events having occurred in the past. Our in camera review did not reveal any repeat locations for these meetings, nor does it appear that these meetings occur on the same dates and/or times each month (e.g. the second Thursday at 5p.m.). See cf. Harris v. City of Providence, PR 17-53 (finding prospective calendar entries for the City Solicitor were exempt from public disclosure as drafts and because disclosure would show precisely where and when the Solicitor could be located, potentially placing him in a vulnerable position). Once again, the City offers no argument how the locations, dates and times of these past meetings constitute “individually identifiable information” nor has the City articulated how disclosure of this information would “constitute a clearly unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).
Next, our review revealed several entries related to “interviews” for what this Office understands to be media-related rather than employment-related (e.g. interviewing potential candidates for positions within the Police Department) which were redacted by the City. The redactions made include the name of the interviewer and the organization they represent. Again, it is unclear to this Office why the names of the interviewers and the organizations they represent were redacted pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). We note that the entries regarding these interviews do not disclose any topics of discussion, are for dates occurring in the past, and were seemingly performed by the Chief in her official capacity, rather than personal capacity.
Finally, in regard to the City’s redaction of certain calendar entries pertaining to publicly-filed lawsuits or criminal matters such as meetings with the Court, depositions, and hearings, we again question whether these redactions are appropriate and, if so, whether they are appropriate within the City’s only cited exemption of R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). While we do not discount the possibility that redaction of events related to lawsuits or other criminal matters may be appropriate in certain situations, based upon the record before us, the City has not demonstrated that these redactions are appropriate here and appropriate pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).
The City did not provide any specific arguments regarding the three (3) categories of redactions discussed above and why they pertain to “personally identifiable information” the disclosure of which would “constitute a clearly unwarranted invasion of personal privacy.” Neither can this Office glean any privacy interest in the above-described categories based upon the record before us, which would justify invoking R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). Disclosure of the three (3) categories of redactions above seemingly implicates little to no privacy interest. Importantly, the City has not asserted that the consequences of disclosure are likely to be notable, nor has it invoked any other exemption to withhold this information. There certainly may be circumstances where redactions to certain information in calendar entries may be appropriate. See e.g. Ecological Rts. Found. v. U.S. Env't Prot. Agency, 541 F. Supp. 3d 34, 61 (D.D.C. 2021) (holding privacy of agents who served on former Environmental Protection Agency Administrator’s Personnel Security Detail named in calendar entries outweighed any public interest in the release of their names); Prop. of the People, Inc. v. Off. of Mgmt. & Budget, 394 F. Supp. 3d 39, 43 (D.D.C. 2019) (holding that OMB Director’s calendar entries corresponding to National Security Council (NSC) meetings fell within the scope of FOIA’s Exemption 5, encompassing the deliberative process and presidential communications privileges and were thus exempt from disclosure). However, on this record, we cannot determine that such redactions are appropriate here. Accordingly, based upon the record before us, as well as our in camera review, we find that the City violated the APRA by redacting the above-described information pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).
We recognize that some redactions were to what the City argues are personal telephone numbers, private appointments, calling hours and locations for funeral services, and references to discussions related to employees in which the Chief was involved. There is a privacy interest in this information. Even though the references to discussions involving City employees contain no details regarding the substance of those discussions or other attendees, we find there is at least some privacy interest in the names of the subject-employees and that disclosure of their names may violate that interest and potentially cause concern or embarrassment. See WPRI v. Community College of Rhode Island, PR 14-01 (“The disclosure of information concerning an employee’s promotion prospects, lack of promotion prospects, job performance evaluations, and personal preferences and goals, and the reason for an employee's termination ... would constitute a substantial invasion of the company’s employees’ person [sic] privacy.”). Moreover, we were not presented with, nor did we determine, any argument in favor of the public interest in this information. Based upon the information provided by the City and our in camera review, we find these limited redactions appropriate within the context of R.I. Gen. Laws § 38-2-2(4)(A)(I)(b) and this Office’s precedent. See Jackson v. Town of Coventry, PR 14-35 (finding no apparent public interest but significant privacy interests in home telephone number, home address (street name and number), and/or personal e-mail address); see also National Archives and Records Administration v. Favish, 541 U.S. 157, 171 (2004) (the United States Supreme Court has determined that when balancing the privacy interest versus the public interest in disclosure of documents, the privacy interest of the decedent's family may be considered).
Next, we turn to consider the Complainant’s argument, raised for the first time in her rebuttal, that Ms. Milkovitz was provided a copy of the Chief’s calendar in unredacted form while the Complainant received the calendar redacted. As an initial matter, this Office conveyed in its initial letter to Complainant that any “rebuttal should be limited to the matters addressed in the City’s response and should not raise new issues that were not presented in your complaint or addressed in the Department's response.” As such, we typically decline to review issues raised for the first time on rebuttal since the public body has no opportunity to respond to the new allegations and this Office cannot fully investigate them. See Mulanaphy v. South Kingstown School Committee, OM 19-24. For example, the information provided to this Office in Complainant’s rebuttal does not provide this Office with a full context regarding the two different APRA requests, including the timeframe and circumstances when they were made, and whether any relevant considerations could have changed between the two requests. Furthermore, the unredacted calendar is for a different time period than the calendar sought in Complainant’s request, save for one week in October 2021. We also note that although the version of the calendar for that week that Complainant received contained limited redactions, the City did not redact any of the meetings or events that occurred during that week. In other words, in response to the requests from both Ms. Milkovitz and the Complainant, the City provided the requester with a copy of the calendar for the week that revealed all substantive calendar entries and meetings, the only difference was the redaction of certain information regarding the meeting location. Additionally, when the Complainant requested a copy of the records provided to Ms. Milkovitz, the record reveals that the City provided the Complainant with the unredacted records, and thus she is now in possession of those records. Accordingly, for all these reasons, we decline to further consider this additional argument by the Complainant.
Nonetheless, we remind public bodies that absent a change in circumstances or some other particular considerations (such as a determination that a prior disclosure should not have been made or a case where records are provided to someone who has a particular interest in the records outside of the APRA process), public bodies should respond consistently to APRA requests and a document that has been made public to one person under the APRA should likewise be made public to another requester seeking the same record.
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). Additionally, 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).
Although seeking injunctive relief may be appropriate, we prefer to allow the City an opportunity to provide Complainant with the subject calendar, removing the redactions made to the three (3) categories discussed earlier. Any other redactions besides those three categories may remain. The City should notify this Office within ten (10) business days of this finding whether it has done so. If the City maintains that these redactions are indeed appropriate within the framework of R.I. Gen. Laws § 38-2-2(4)(A)(I)(b), or otherwise permitted by the APRA, the City may, instead, provide a supplemental submission to this Office articulating the specific reason(s) why these redactions are appropriate within ten (10) business days of the date of this finding.
We were not presented with evidence that the City’s violation was willful and knowing, or reckless, nor are we aware of any prior, similar violations by the City. Nevertheless, this finding serves as notice to the City that its conduct violated the APRA and may serve as evidence in a future similar situation of a willful and knowing, or alternatively reckless, violation.
Although this Office will not file suit in this matter at this time, 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). This file remains open pending completion of the steps described above.
We thank you for your interest in keeping government open and accountable to the public.
PETER F. NERONHA
/s/ Adam D. Roach
Adam D. Roach, Special Assistant Attorney General
 It is our understanding that at all times relative to this Complaint, Ms. DaRosa was an elected member of the Pawtucket City Council.
 Although Part (2) of Complainant’s request sought “SOP’s for the Fire Department,” Complainant does not dispute that the SOG’s (Standard Operating Guidelines) provided by the City were responsive to her request.
 The Complainant’s rebuttal also raised a new allegation concerning her request because of the “crazy timeline” described by the City in its response. Specifically, Complainant takes issue with the City’s representation that it invoked the twenty (20) business day extension under the APRA on the same day that it forwarded the request to the Fire Department. Other than expressing “shock” and describing this timing as “crazy,” the Complainant does not articulate how the City violated the APRA by invoking the extension afforded under R.I. Gen. Laws § 38-2-3(e). Notably, the Complainant takes no issue with the predicate conditions set forth in R.I. Gen. Laws § 38-2-3(e). Additionally, in line with this Office’s acknowledgement letters to the parties and our precedent, this Office typically declines to review issues raised for the first time in a rebuttal since the public body has no opportunity to respond to the new allegations and this Office cannot fully investigate them. See Mudge v. North Kingstown School Committee, OM 12-35. To the extent any issues remain in this case, the parties should consult with each other and resolve this issue, if it has not already been resolved; if the parties cannot resolve this issue, the Complainant may file a new complaint regarding this issue articulating the specific provision(s) of the APRA Complainant contends were violated.
 Based upon our review of the record, it appears that in addition to the APRA request that is the subject of this Complaint, the Complainant subsequently sent another APRA request to the City requesting a copy of the records it provided to Ms. Milkovitz in response to an APRA request Ms. Milkovitz submitted to the City. We do not have a copy of the Complainant’s request or Ms. Milkovitz’s request, nor does the City’s response letter to the Complainant identify the precise nature of the records that were provided to Ms. Milkovitz (and later to Complainant in response to her request for the records previously provided to Ms. Milkovtiz). As such, the background, including the date when the City responded to Ms. Milkovitz’s request, is not entirely clear, but based on Complainant’s description, it appears that at some point , the City provided Ms. Milkovitz 212 pages of Chief Goncalves’ unredacted calendar for the period of September 17, 2017 through October 9, 2021. The City then provided the Complainant with a copy of these same records in response to her APRA request for a copy of the records provided to Ms. Milkovitz. The instant Complaint pertains to a request wherein Complainant sought the Chief’s calendar from October 4, 2021 through April 10, 2022. Accordingly, although the Complainant maintains that Ms. Milkovitz was provided “a month” of unredacted calendar entries that the Complainant was not, it appears the overlap between the two requests only involves October 4-9, 2021.
 We reference FOIA caselaw because the Rhode Island Supreme Court has made clear that “[b]ecause APRA generally mirrors the Freedom of Information Act * * * we find federal case law helpful in interpreting our open record law.” Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 558 n.3 (R.I. 1989).