| 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 23, 2023
PR 23-47
Ms. Nina Sparling
Reporter, The Public’s Radio
Michael J. Lepizzera, Jr.
Solicitor, City of Woonsocket
Re: The Public's Radio (RI NPR) v. City of Woonsocket
Dear Ms. Sparling and Attorney Lepizzera:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Ms. Nina Sparling, reporter for The Public’s Radio (“Complainant”), against the City of Woonsocket (“City”). For the reasons set forth herein, we find that the City violated the APRA.
The Complainant alleges that she submitted three (3) APRA requests to the City on November 30, 2022, seeking certain tax roll information. On that same day, City Clerk, Christina Harmon, indicated that the City would be “requesting a 20-day extension due to the voluminous nature of search and retrieval and staff shortages.” Having received no further communication from the City, the Complainant contends she called the Clerk on January 5, 2023 to inquire as to the status of her request and maintains that she was verbally informed by the Clerk that any records responsive to the Complainant’s requests would be provided by January 13, 2023. The Complainant states that she then “amended two of the requests in an effort to expedite the search process.”
The Complainant next alleges that she filed a fourth APRA request on January 5, 2023, seeking certain emails of the Mayor. The Complainant contends she did not receive any response or communication from the City regarding this request within the ten (10) business day period.
The Complainant states that she spoke with City Solicitor, Michael Lepizzera, on January 23, 2023 to discuss her outstanding requests and provided him with copies of the same. On January 25, 2023, Complainant maintains Attorney Lepizzera sent “documents that he believed were responsive to one of [her] November 202[2] requests. The documents were not responsive to the request at all.” Complainant states that she spoke with Attorney Lepizzera on January 26, 2023 to explain why the documents he provided were nonresponsive and advised him that she had yet to receive any written response to her January 5, 2023 request.
The Complainant provided a copy of a text message thread purportedly between herself and Attorney Lepizzera from January 27, 2023. In this thread, the Complainant again requested a status of her outstanding APRA requests and indicated that if she did not receive a response, she would file a Complaint with this Office. Based upon the text messages provided, Attorney Lepizzera requested until February 1, 2023 to provide the outstanding records.
Having received no records or additional communications from the City as of February 3, 2023, the Complainant filed the instant Complaint with this Office alleging the City violated the APRA by failing to timely respond to her four (4) APRA requests.
Despite this Office’s numerous requests to the City, through its Solicitor, Michael Lepizzera, Esquire, this Office has not received a substantive response to the Complaint. Our records evince that by letters and/or emails dated February 6, March 29, April 5, and May 8, 2023, this Office provided ample opportunity for the City to respond to the allegations set forth in this case.[1] However, we are still without any response. Therefore, due to the “failure to respond to the Department of Attorney General's request for additional information, we must draw an adverse inference against” the City when reviewing the Complaint. Woonsocket Fire Fighters Association Local No. 732 v. City of Woonsocket, PR 09-28 (citing Allen v. Claims Committee of the Lincoln Town Council, et al., OM 00-22). Wholly consistent with our precedent, this Office will consider only the Complaint and submissions when issuing this finding.
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.
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. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7. If no response is sent within ten (10) business days, the lack of response will be deemed a denial. See R.I. Gen. Laws § 38-2-7(b).
Here, it is undisputed that the Complainant made four (4) APRA requests to the City on November 30, 2022 and January 5, 2023. As it is further undisputed that the City failed to respond to the requests within the ten (10) business day timeframe, we find the City violated the APRA. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7.
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, injunctive relief may be appropriate, but we will allow the City to respond to the Complainant’s four (4) requests in accordance with this finding within ten (10) business days of this finding, at no cost to the Complainant. See R.I. Gen. Laws § 38-2-7(b) (“All copying and search and retrieval fees shall be waived if a public body fails to produce requested records in a timely manner”). If the City fails to respond within this time frame, the Complainant should contact this Office so that we may further review this matter.
Additionally, we have concerns over the City’s failure to timely respond to the Complainant’s numerous requests as well as the numerous requests from this Office relative to the Complaint. This is also the second time that the City has failed to cooperate with this Office's complaint procedures. See Woonsocket Fire Fighters Association Local No. 732 v. City of Woonsocket, PR 09-28 (drawing an adverse inference against the City for its failure to provide a substantive response to the complaint). Recognizing that it has been over ten (10) years since Woonsocket Fire Fighters Association and the legal counsel for the City has changed, we nonetheless express great frustration with the City’s dilatory tactics. Although this Office provided numerous opportunities for the City to provide a response over the course of four (4) months, we expect that the City’s response to any future complaints will be timely. We direct the City to provide a supplemental submission to this Office within ten (10) business days of this finding, copying the Complainant, addressing whether the violations found herein were willful and knowing, or reckless. See R.I. Gen. Laws § 38-2-9(d). Any response should be substantive and not conclusory, with supporting evidence or arguments explaining the City’s failure to respond to the four (4) APRA requests, despite repeated assurances to the Complainant that it would do so.
The Complainant may submit a supplemental rebuttal within five (5) business days of receipt of the City’s response.
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). Please be advised that our file remains open pending completion of the steps above. After these steps have been completed, we shall issue a supplemental finding.
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] Indeed, our May 8, 2023 email stated, “This Office does not have a record of having received a Response relative to this matter. Kindly submit a Response within five (5) business days. This Office will proceed based on the record before it after five (5) business days have elapsed.”