| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 www.riag.ri.gov | |
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| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
May 22, 2023
PR 23-46
Richard Langseth
John M. Boehnert, Esquire
Legal Counsel, Buttonwoods Beach Association
Re: Langseth v. Buttonwood Beach Association
Dear Mr. Langseth and Attorney Boehnert:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Richard Langseth (“Complainant”) against the Buttonwood Beach Association (“BBA”). For the reasons set forth herein, we find that the BBA did not violate the APRA.
The Complainant contends that he “was stopped on the highway by the Warwick Police detailed out on the authority of the BBA on July 7, 2019” and a sign on the police cruiser read “Private Grounds,” “Positively No Trespassing.” The Complainant then alleges he submitted an APRA request to the BBA on July 8, 2019, seeking “a list of the BBA shareholders and the list that the officer was checking when he was stopping the public from proceeding down the highway. [The Complainant] explained in that request that the BBA had fallen under the APRA when it ordered the police to stop vehicles on the highway.” The Complainant states that “the BBA has yet to produce the list of shareholders and the list the police used to stop the public on the highway that night of July 7, 2019.”
The Complainant maintains that he submitted a second APRA request to the BBA on November 30, 2020 “for a copy of the BBA Directors and Officers Insurance Policy and supporting documents.” The Complainant alleges that the Buttonwoods Fire District (“BFD”) provided a copy of the insurance policy to the Complainant but “[i]t was redacted in the policy form heading which can still be made out to say ‘Non-Profit Professional Liability.’” The Complainant states that he appealed to the BBA “the withholding of documents, including a complete version of the partially redacted policy form and other documents.” “On December 7, 2020, [the BBA] responded to the appeal with the announcement that [it] was complying with the request for all the documents.” “On December 10, 2020, [the BBA] reported that [it] was having scanner problems and that the documents would be supplied by U.S. Mail.” The Complainant contends he “received a redacted copy of the Directors and Officers Insurance Policy from [the BBA] on December 15, 2020, completing part of” Complainant’s November 30, 2020 APRA request. The Complainant also states that he received a copy of the declaration page of the insurance policy which “confirmed [Complainant’s] reading of the redacted policy form heading” as being “Non-Profit Professional Liability.”
Next, the Complainant contends he submitted a third APRA request to the BBA on June 8, 2022, seeking “access to BBA governance documents. *** The request was for access to the minutes of BBA Board Meetings and the list of shareholders of the BBA.” The BBA purportedly responded that it did not believe it “meets the definition of an agency under the statute.” The Complainant, having not received a substantive response to his June 8, 2022 request within the “statutory deadline,” appealed to the BBA, which reiterated its position that it did not believe it “meets the definition of an agency under the statute.” The Complainant states that “[t]he documents have yet to be produced.”
In November 2022, the Complainant submitted a 57-page Complaint, which included an affidavit from himself, alleging that the BBA violated the APRA by (1) denying Complainant’s July 7, 2019 request for “the list of residents used by the police during a July 6, 2019 BBA authorized traffic stop of” the Complainant; (2) by improperly redacting the heading of the “BBA’s Directors and Officers Liability insurance policy” in connection with Complainant’s November 30, 2020 request; (3) failing to explain the reasons for the redaction when prompted on appeal; (4) failing to produce “BBA governance documents” as requested by Complainant on June 8, 2022; and (5) by asserting that the APRA does not apply to the BBA.
The Complainant contends the BBA is “a body corporate and politic. It is a state actor that regulates land use of the lots in its plats. It regulates the Buttonwoods public highways through police powers. It is not a non-profit association of property owners or condominium plan.” “The BBA has acted as a state actor regarding the maintenance and regulation of Buttonwoods highways.” “The BBA is a legislatively chartered body corporate and politic formed in 1872 with the power to maintain a shoreline resort.” “The BBA presents itself as a State Actor standing in for the City of Warwick in land use matters and the Buttonwoods Fire District in the regulation and maintenance of the public highways in the District.” “The BBA is a public actor as well as an agent of the BFD and is subject to the APRA.” The Complainant also characterizes the BBA as “being a shareholder-owned private corporation.”[1]
The BBA submitted a 67-page substantive response through its legal counsel, Attorney John M. Boehnert. The BBA asserts that Complainant’s characterization of the BBA as “a body corporate and politic” exercising “police powers” acting as an “agent” of the District is “demonstrably false.” The BBA contends that it was established by legislative charter in 1872 as a “body corporate and politic *** for the purposes of establishing a Summer Resort on the shore of Narragansett Bay” and, at the time, the term “body corporate and politic” was synonymous with “corporation.” Additionally, the establishing charter references Chapters 125 and 128 of the Revised Statutes which are “chapters governing corporations (Chapter 125) and manufacturing (Chapter 128).” (Parentheticals in original). The BBA contends that “there is no reference in the Charter for the BBA as being a political subdivision of the state or of a municipality or invested with any public powers.” The BBA argues that “there is no basis to assert that the BBA, by virtue of being a ‘body corporate and politic’ has any police powers or engages in any state action or is a state actor.”
Next, the BBA contends that the BBA’s power to regulate land use “is not done through the exercise of municipal or state police power, it is done by restrictive covenants recorded in the land evidence records for the City of Warwick and imposed on the land in Buttonwoods. *** The restrictions imposed by the BBA give the BBA a measure of control over that land, which was necessary to develop and operate it as a resort, as envisioned by its Charter. *** All the lots are subject to prior deed restrictions of record, which restrictions include restrictions found in the BBA’s Bylaws.”
The BBA also demurs the Complainant’s argument that the BBA’s exercise of power over the roadways is the exercise of police powers since they are “public highways.” The BBA states that “[t]he roadways in Buttonwoods are private, not public” for several reasons, including, but not limited to, “[t]he records of the City of Warwick do not list the Buttonwoods roadways as public roadways,” “they are maintained by the [District] pursuant to a lease between the BBA as lessor and the [District] as lessee” and, in 2004, the BBA granted an easement to the Warwick Sewer Authority to install sewer lines in the streets of Buttonwoods, “which easement was only necessary because the streets were private, not public.” The BBA also contends that in Clark v. Buttonwoods Beach Association, C.A. No. KC-2014-0271 (R.I. Super. 2017), the Rhode Island Superior Court determined that the roadway pertinent to Complainant’s July 2019 request, Promenade Avenue, is a private road as “legal title *** is held by the Association.”
In response to the Complainant’s assertion that the BBA is an “agent” of the District, which is a “public body” under the APRA, the BBA states that there is a lease between the BBA as lessor and the District as lessee wherein the District “was given the operational powers to facilitate the development, preservation and operation of the housing and other facilities provided on BBA lands.” “Quite simply, the BBA does not act as an agent of the” District.
Ultimately, for all these reasons, the BBA contends that it does not fall within the definition of a “public body” under the APRA, had no duty to respond to the Complainant’s APRA requests and thus did not violate the APRA.
The BBA’s substantive response also included an affidavit from former BBA President, Peter Dorsey, attesting to the facts and arguments made in the response.
The Complainant submitted an equally robust rebuttal consisting of 27-pages of arguments and numerous, multiple-paged exhibits.
Both parties submitted additional supplemental filings, exhibits and affidavits. We acknowledge all briefings submitted, but do not find it necessary to outline each in detail as the arguments are substantively similar to those made in the prior filings set out above.
This Office independently reviewed the BBA’s website, which describes the BBA as “a volunteer non-profit organization. The BBA board is comprised of volunteer site owners who coordinate events for the enjoyment of Buttonwood Beach residents and guests. The BBA relies solely on yearly member dues, donations and volunteers.”[2]
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.
As an initial matter, we must address the parties’ disagreement about the BBA’s status as a “public body” within the definition provided under the APRA. Under the APRA, a “public body” means “any executive, legislative, judicial, regulatory, or administrative body of the state, or any political subdivision thereof; including, but not limited to: any department, division, agency, commission, board, office, bureau, authority; any school, fire, or water district, or other agency of Rhode Island state or local government that exercises governmental functions; any authority as defined in § 42-35-1(b); or any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.” R.I. Gen. Laws § 38-2-2(1). We have previously noted that the last clause of this provision contemplates an agency-type relationship with a governmental entity. See Reilly & Olneyville Neighborhood Association v. Providence Department of Planning and Development and/or Providence Redevelopment Agency, PR 09-07B.
In East Bay Newspapers v. Mt. Hope Trust, PR 10-39, we considered whether the Mt. Hope Trust was subject to the APRA. The evidence revealed that the Town of Bristol had no control over the Mt. Hope Trust and that no funds, employees, or services were shared between the two. Although Town representatives had seats on the Mt. Hope Trust and although the Mt. Hope Trust received funds from the Town, we found that these facts were not dispositive because they did not indicate that the Trust was “acting on behalf of and/or in place of any public agency.” R.I. Gen. Laws § 38-2-2(1). As a separate and independent financial entity, we found that the Mt. Hope Trust was not subject to the APRA.
In In re: Newport Public Library, ADV PR 14-04, we examined whether the Newport Public Library was subject to the APRA. We noted that the Library had the sole and exclusive authority over its budget and finances and that the City of Newport had no authority to alter or amend those finances. Although the City did provide contributions to the Library, including sizable funds, we noted that the City had no control over how those funds were expended. We also observed that the Library was not part of the City's Comprehensive Annual Finance report because it was not considered a component of the City under applicable standards of the Government Accounting Standards Board. Based on these facts, we found that the Library was not “acting on behalf of and/or in place of” the City, and, accordingly, that the Library was not a “public body” under the APRA. R.I. Gen. Laws § 38-2-2(1).
Similarly, in DePault v. Rhode Island High School Football Coaches Association, PR 20-14, we determined the Association was not a “public body” under the APRA as it was a private, non-profit corporation comprised of volunteers made up of football coaches from both public and private schools. Additionally, there was no evidence that the Association was “acting on behalf of and/or in place of” a governmental entity, and no formal or informal agreement with the Association and any school district or other government institution. R.I. Gen. Laws § 38-2-2(1).
In support of his argument that the BBA is a public body under the APRA as an “agent” for the District, the Complainant relies heavily on Boynton v. Rhode Island Interscholastic League, PR 18-16. There, the complainant argued that the RIIL was a “public body” subject to the APRA because “the school committees in the state of Rhode Island have turned over ‘their’ responsibility to supervise and administer their sports programs” to the RIIL. Id. In opposition, the RIIL maintained that it “is a voluntary, incorporated, non-profit association of Principals organized to coordinate the efforts of its members toward the ultimate objects of interscholastic activities.” Ultimately, this Office determined that the RIIL was not “acting on behalf of and/or in place of” a government entity and was therefore not a “public body” under the APRA as there was no evidence that any school committee had delegated its services to the RIIL or that the RIIL had any formal connection or partnership with any school committee. The evidence demonstrated that “as a 501(c)(3) nonprofit corporation formally organized in 1932 and incorporated in 1966, the RIIL elects its own members and maintains control of its finances. As membership is voluntarily determined by a school's principal, including private schools, the RIIL operates completely independent from any school committee.” Boynton, PR 18-16.
In Schmidt v. Ashawav Fire District & Volunteer Fire Association, PR 97-09, we found that the Association was a “public body” under the APRA. In making this conclusion, we noted that “the determining factor [] is whether or not such private entity is acting on behalf of a public agency. To make such a determination, one must look at the nature of the functions of the private entity [] and the governmental entity[.]” (Emphasis in original). Because the Association had been delegated fire protection services by the Fire District, we found that the Association was “acting on behalf of” the Fire District and was, therefore, a “public body” under the APRA.
Conversely, in Fernandes v. Foster Center Volunteer Fire Company, OM 18-07, PR 18-07, we found that the Foster Center Volunteer Fire Company was not a “public body” under the APRA. In particular, we noted:
“There is no indication that the FCVFC has any formal connection or partnership with the Town. Indeed, in response to an inquiry from this Department, the Town noted that there was no contract between the Town and the FCVFC. We also note that the Town does not assess a fire tax. A review of the Town's and the FCVFC's respective websites reveals no connection or reference between the two entities. The evidence demonstrates that, as a 501(c)(3) nonprofit corporation who elects its own members and maintains control of its equipment and finances, the FCVFC operates completely independent from the Town.” Fernandes, OM 18-07, PR 18-07.
Additionally, although Complainant argues that the Clark v. Buttonwoods Beach Association matter supports his contention that the BBA is an “agent” of the District, the Court’s findings do not support this characterization. Rather, the Rhode Island Supreme Court stated the following in its April 2020 decision:
“The Buttonwoods neighborhood in Warwick has several common areas, including tennis courts, a chapel, a baseball field, the ‘casino,’ and a beach area at the end of Buttonwoods Avenue. These common areas, as well as the roads within the neighborhood, are owned by the BBA. The BBA leases the roads to the Buttonwoods Fire District (BFD). The BBA is a private corporation, described through trial testimony as founded to be “the steward[ ] of the land, to protect * * * and preserve the land” for future generations. The BBA is owned by stockholders; Buttonwoods property owners were eligible to purchase up to two shares per household at $100 per share after they had been a resident for two years. The BFD was described in trial testimony as “the manager of all of [the common areas] and it has a special taxing authority enabling it to fund those maintenance obligations.” The BFD is run by three supervisors elected by residents of the neighborhood.” Clark, 226 A.3d 683, 685 (R.I. 2020) (emphases added).
It bears noting that our analysis is based upon the significant volume of evidence and argument provided by both parties as well as the case law and our precedent as described above.
The filings submitted show that the BBA was established, and remains, a private corporation, to establish a “Summer Resort on the shore of Narragansett Bay.” It is undisputed that the BBA does not have any taxing authority or any agreement with the City of Warwick to maintain the lands and highways within the BBA’s control; rather, the evidence shows that the roadways within the BBA are privately owned by the BBA itself. Furthermore, the BBA does receive any financial support from the City of Warwick but instead derives funding from member dues and donations and is owned by individual shareholder-residents of the BBA. There are no stated salaries, medical benefits, or pensions for directors of the BBA, who are described as “volunteer site owners.” There is no indication that any members of the BBA are elected by the public at-large or appointed by the City of Warwick. More importantly, the BBA was not created by the City of Warwick and remains a separate entity from the City.
Nor have we been provided sufficient evidence that the BBA is an agent of the District. Instead, the opposite appears to be true. The BBA has provided evidence that the District was chartered in 1925 and “given the operational powers to facilitate the development, preservation and operation of the housing and other facilities being provided on the BBA lands.” The BBA has given a lease to the District to perform certain functions and maintain the lands. None of this suggests an agency-type relationship.
Accordingly, based upon the evidence submitted as well as our precedent, we find that the BBA is not a “public body” within the meaning of the APRA. As we have determined that the BBA is not a “public body” for purposes of the APRA, we therefore conclude that the BBA did not violate the APRA when responding (or failing to respond) to Complainant’s requests for documents.
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] This Office’s authority is limited to investigating alleged violations of the APRA. See R.I. Gen. Laws § 38-2-8. To the extent the Complaint raises additional allegations of other Rhode Island statutes and/or the Rhode Island Constitution, these allegations are outside of the APRA and thus outside of this Office’s authority and will not be investigated.
[2] http://buttonwoodbba.com/ (Last accessed May 9, 2023).