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 27, 2023
Mr. Rahim Caldwell
Mr. Albert J. Vitali III, Esquire
Rhode Island Department of Administration
Re: Caldwell v. Department of Administration
Dear Mr. Caldwell and Attorney Vitali:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Rahim Caldwell (“Complainant”) against the Department of Administration (“DOA”). For the reasons set forth herein, we find it unnecessary to determine whether DOA violated the APRA because even assuming a violation occurred, civil fines and injunctive relief would not be appropriate..
On December 19, 2021, Complainant submitted a request to DOA. The request asked DOA to “1. Provide the recipient(s) financial institution(s) relating to all Purchase order number 3585523 payments, which sender is State of Rhode Island” and “2. Provide the recipient(s) financial institution(s) relating all Purchase order number 3488233[ ]payments, which sender is State of Rhode Island[ ] (Name of the financial institution that is the recipient of asset protection funds which the state of Rhode Island . . . is the sender of said funds)[.]”
On December 28, 2021, DOA responded to Complainant by stating that the requested records appeared to be under the custody and control of Rhode Island College (“RIC”) and were therefore not in the DOA’s possession. DOA further asserted that information “related to the financial institutions of a vendor of the State” is exempt from disclosure under APRA because it constitutes “commercial or financial information obtained from a person, firm or corporation that is of a privileged or confidential nature” under R.I. Gen. Laws § 38-2-2 (4)(B) (“Exemption B”).
Complainant responded to DOA by arguing that the names of the financial institutions used by a tax-funded entity are not confidential and do not constitute financial information under Exemption B. Renewing his request for the “name(s) of the financial institution which state of Rhode Island sent [the] funds[,]” Complainant further argued that when DOA sent funds to RIC in connection with Purchase Orders 3585523 and 3488233, it must have done so either by sending cash or by utilizing a financial institution to effect the transaction.
DOA then replied to Complainant by providing unredacted copies of Purchase Orders 3585523 and 3488233 and explaining that RIC had received funds “as a reimbursement” through those Purchase Orders, meaning that “like any vendor, the funds [were] paid to RIC through a financial institution, upon invoice/request.” The Purchase Orders DOA provided do not contain the names of any financial institutions. DOA further explained that it does not disclose “banking information for any third-party entity it is making payment to, especially related to specific transactions” and argued that disclosing such information “would compromise security of the State, the financial institution receiving the money and the vendor receiving the money (in this case RIC) and would expose these entities to fraud attempts and/or phishing attacks using this information.” In support of its position, DOA cited Exemption B and “a general balancing test under APRA weighing transparency interests vs. non-disclosure.” DOA also suggested that Complainant could seek the “banking information” by submitting an APRA request directly to RIC.
Complainant filed the instant Complaint, in which he alleges that DOA knowingly and recklessly denied his APRA request by withholding the names of the financial institutions. Complainant argues that the name of a financial institution does not constitute financial information under APRA and that a “tax funded transaction by a state government has no right to conceal the name of the financial institution funded by tax payer dollars involved in said transaction.” Complainant also requested that DOA provide the withheld information to this Office for in-camera review.
Senior Legal Counsel to DOA, Albert J. Vitali III, Esquire, provided a substantive response on behalf of DOA. The response states that DOA initially interpreted Complainant’s request as seeking Purchase Orders issued by RIC that were not in DOA’s possession; however, upon clarification and further review, DOA determined that the Purchase Orders were issued by DOA and provided Complainant with copies of the Purchase Orders.
DOA’s response reiterates that it does not disclose “banking information” for any third-party entity receiving payments, including RIC; however, DOA notes that RIC is an entity subject to APRA and suggests once more that Complainant could request the information directly from RIC. DOA maintains that it has fully complied with APRA because banking information is exempt from disclosure under Exemption B and providing such information, “which could also be connected with other accessible public records, could be used to perpetrate fraud against the State and its vendors.” DOA did not submit any documents to this Office for in-camera review.
Complainant submitted a rebuttal that primarily focuses on DOA’s decision not to submit documents for in-camera review and speculates that DOA did not provide the name of the financial institution because it did not possess that knowledge. Complainant’s rebuttal also mentions a “similar request” that he made to RIC.
Because DOA invoked RIC’s interests as a justification for withholding the banking information and suggested that Complainant could request the information directly from RIC, this Office contacted RIC to determine whether Complainant had made such a request and how RIC had responded. RIC then provided documents to this Office indicating that Complainant submitted an APRA request to RIC on March 15, 2022 for the “recipient financial institution relating to po # 3488233 and po # 3585523[.]” On March 30, 2022, RIC responded to Complainant by identifying its “bank of record” as Citizens Bank. Complainant has not submitted a complaint to this Office with respect to his March 15, 2022 APRA request to RIC.
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 case law interpreting this statute.
The APRA creates a right of access to “public records[,]” defined as “all records maintained or kept on file by any public body,” except as further provided by R.I. Gen. Laws § 38-2-2(4). R.I. Gen. Laws § 38-2-3(a); cf. § 38-2-2(4) (enumerating types of public records and categories of exemptions). Although the statutory definition of public records is extensive, the APRA—like its federal counterpart, the Freedom of Information Act (“FOIA”)—ultimately deals with “‘records’, not information in the abstract.” Forsham v. Harris, 445 U.S. 169, 185 (1980); see Goldgar v. Office of Administration, Executive Office of the President, 26 F.3d 32, 34 (5th Cir. 1994) (“The distinction that [plaintiff] attempts to make between ‘information’ and ‘records’ does not advance his case; in fact, such a distinction supports the trial court’s dismissal of his suit, because the FOIA applies only to information in record form.”).
At the outset, we question whether the Complainant’s request, which seemed to seek information rather than records, was a cognizable APRA request. DOA did not appear to raise that issue but did indicate that it experienced some initial confusion as to what the request was seeking. In any event, the record demonstrates that after DOA denied his request, the Complainant sent a request to RIC also seeking the “recipient financial institution relating to po # 3488233 and po # 3585523[.]” The record demonstrates that RIC responded to the Complainant’s request by providing the name of the financial institution and the Complainant did not file a complaint with this Office indicating any concerns with RIC’s response. As such, it appears that the Complainant has now obtained the information he was seeking from DOA, through the response by RIC.
On multiple occasions, this Office has found it unnecessary for us to consider whether a public body violated the APRA when a complainant receives the subject documents after filing an APRA complaint and when there is no evidence of a willful and knowing or reckless violation. See Lamendola v. East Greenwich School Committee, PR 20-11; Save the Bay v. Rhode Island Department of Environmental Management, PR 20-62; Farinelli v. City of Pawtucket, PR 17-22. The reasoning behind this approach is that, even assuming a violation occurred, the APRA only provides for two types of remedies: injunctive relief, and civil fines for a willful and knowing or reckless violation. See R.I. Gen. Laws § 38-2-9(d). Here, the Complainant’s request was framed as seeking the name of a financial institution and he has received that information from RIC. On this record, we do not conclude that injunctive relief is appropriate.
Additionally, we do not find evidence of a willful and knowing or reckless violation that would warrant civil fines. DOA provided copies of the Purchase Orders referenced by Complainant and asserted that the requested “banking information” was exempt from public disclosure as the confidential financial information of a third party, and it is sufficient for us to note that there is no evidence that this assertion was not made in good faith. Consistent with our precedent, having determined that no relief would be appropriate even if a violation did occur, this Office need not determine the validity of DOA’s argument that Exemption B applies to the specific “banking information” DOA sought to protect. If there are any records that the Complainant is still seeking, he is free to submit a new request clearly identifying the records being sought.
Although this Office will not file suit in this matter, nothing within the APRA prohibits an individual or entity from filing an action in Superior Court seeking injunctive or declaratory relief. 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.
PETER F. NERONHA
By: /s/ Jeff Kidd
Special Assistant Attorney General
 In referencing FOIA and relevant cases applying that statute, this Office follows the lead of the Rhode Island Supreme Court, which has stated 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).