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
June 1, 2023
Mr. Justin Santoro
Solicitor, Town of West Warwick
Re: Santoro v. Town of West Warwick
Dear Mr. Santoro and Attorney Williamson:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Justin Santoro (“Complainant”) against the Town of West Warwick (“Town”). For the reasons set forth herein, we find that the Town violated the APRA with respect to one of Complainant’s allegations.
The Complainant alleges the Town violated the APRA in several ways in connection with a request he purportedly submitted on March 23, 2023 for “police background investigation packet on self” compiled by the Town of West Warwick Police Department related to Complainant’s application to become a police officer.
First, Complainant alleges the Town provided an untimely response when the Town’s written denial of records was received by Complainant on April 8, 2023 via regular mail, outside of the ten (10) business day time period under the APRA. Next, Complainant contends that the denial letter was improperly signed by the Town’s legal counsel, Attorney Timothy A. Williamson, rather than the Town’s “APRA representative.” Finally, the Complainant alleges the Town’s denial of his request for the background investigation packet the Town compiled on himself was improper as there would be no invasion of privacy “as everything in the package is available to the public minus more or less SSN and credit information.”
Attorney Williamson provided a substantive response on behalf of the Town, which included an affidavit from himself. The Town contends that Attorney Williamson’s letter denying the Complainant’s request was proper as Attorney Williamson is the Solicitor for the Town and “was acting on behalf of his client, the Chief Administrative Officer, and the Custodian of the records of the Town of West Warwick.” Next, the Town maintains that its denial letter “was made on April 5, 2023 and postmarked April 6, 2023. Both dates fall within the 10-business day rule as provided by RIGL 38-2-3(e).” Finally, the Town argues that its denial of the Complainant’s request for the background investigation was proper pursuant to the cited exemptions of R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(b) and (D)(c) as well as this Office’s precedent as disclosure of the records would “constitute a clearly unwarranted invasion of personal privacy.”
The Town provided this Office with a copy of the Complainant’s background investigation for in camera review. Based upon our review, and without undermining the in camera nature of the same, the document consists of a Memorandum compiled by the Detective Bureau of the Town’s Police Department outlining an interview between a representative of the Department and the Complainant. The Memorandum contains references to and personally identifiable information about third parties, including minors, and Complainant’s employment and criminal history information.
We acknowledge Complainant’s rebuttal wherein he emphasizes his personal interest in obtaining the records and his intention to pursue legal action if denied because he has been “IRREPARABLY HARMED by the documents in question.” (Emphasis in original).
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).
Here, it is undisputed that the Complainant made an APRA request to the Town on March 23, 2023 and did not receive the Town’s response until April 8, 2023, despite the same being dated April 5, 2023 and postmarked on April 6, 2023. It is further undisputed that the Town received the Complainant’s request on March 23, 2023; therefore, the Town was required to provide a response to the request by April 6, 2023. Although we recognize that the Complainant maintains he did not receive the mailed response until April 8, 2023, he does acknowledge that the same was dated and postmarked within the ten (10) business day time period following the Town’s receipt of his request. Whether this Office applies the April 5, 2023 response date or the April 6, 2023 postmark date, both dates represent a timely response by the Town within ten (10) business days of the receipt of Complainant’s March 23, 2023 APRA request. See R.I. Gen. Laws § 38-2-7(a); Clark v. Department of Public Safety, PR 14-23 (finding DPS received the request on February 7, 2014 and the February 19, 2014 postmark date did not violate the APRA); Miller v. City of East Providence. PR 11-18 (“Based upon the March 28, 2011 receipt date, the City was required to respond to your request on or before April 11, 2011.”). Accordingly, we find no violation.
Rhode Island General Laws § 38-2-3.16 provides that:
“[n]ot later than January 1, 2013, and annually thereafter, the chief administrator of each agency and each public body shall state in writing to the attorney general that all officers and employees who have the authority to grant or deny persons or entities access to records under this chapter have been provided orientation and training regarding this chapter.”
The Complainant contends that the Town violated the APRA when the Solicitor for the Town denied his request for records, rather than the Town’s APRA representative. Although it is undisputed that Attorney Williamson is the appointed Solicitor for the Town providing legal counsel and representation for Town matters, Attorney Williamson is not listed in this Office’s records as an APRA-certified employee of the Town. As such, Attorney Williamson lacked authority to process and respond to Complainant’s APRA request pursuant to R.I. Gen. Laws § 38-2-3.16. See Riggs v. Coastal Resources Management Counsel, PR 17-23 (finding the CRMC attorney “lacked authority to turn a non-APRA matter into an APRA matter” as he was not APRA-certified on behalf of CRMC); Farinelli v. City of Pawtucket, PR 17-19 (finding no violation where complaint was based on request to only a non-APRA certified employee of the City who did not have authority to grant or deny records); Access/Rhode Island v. Town of New Shoreham, PR 15-26 (“Having recognized that the Town Clerk, and not the Police Chief, was the designated public records officer, we are hard pressed to find that the Police Department, through actions or omissions of the Police Chief, violated the APRA when the Police Chief did not direct MuckRock to the proper entity to make an APRA request.”). Accordingly, we find the Town violated the APRA.
The APRA states that, unless exempt, all records maintained by any 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). The APRA exempts from public disclosure “[a]ll records maintained by law enforcement agencies for criminal law enforcement and all records relating to the detection and investigation of crime,” where disclosure, among other reasons, “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38 -2-2(4)(D)(c). The plain language of R.I. Gen. Laws § 38 -2-2(4)(D)(c) contemplates a “balancing test” whereby the “public interest” in disclosure is weighed against any “privacy interest.” Rhode Island General Laws § 38-2-2(4)(A)(I)(b) similarly exempts from public disclosure personally individually identifiable records where disclosure “would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et. seq.” 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, could or would reasonably be expected to constitute a clearly unwarranted invasion of personal privacy.
In this case, the Complainant sought a “background investigation packet on self” compiled by the Town’s Police Department in connection with his application for employment. Law enforcement records involving specific identifiable private persons implicate personal privacy interests, particularly when no arrest takes place. See, e.g., Fund for Constitutional Government (“FCG”) v. National Archives and Records Service, 656 F.2d 856, 864 (D.C. Cir. 1981) (“There can be no clearer example of an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation.”); American Civil Liberties Union v. Department of Justice, 655 F.3d 1, 7 n.8 (D.C. Cir. 2011) (“disclosure of records revealing that an individual was involved or mentioned in a law enforcement investigation implicates a significant privacy interest,” particularly where the individual was never charged or convicted); see also Bernard v. Vose, 730 A.2d 30 (R.I. 1999) (holding that petitioner did not have a right, under the APRA, to review his own parole board files, which contained personal and sensitive information about him, because once the files were made public to him under the APRA, the files would then be available for inspection by the general public). Our in camera review of the requested records confirms that they implicate specific privacy interests and makes references to other private individuals, including minors.
Although normally a person making an APRA request need not provide a reason for the request, see R.I. Gen. Laws § 38-2-3(j), the request at issue here implicates a specific individual’s privacy interests. Accordingly, disclosure is only required if the public interest in disclosure outweighs those privacy interests.
The public has an interest in a document that “sheds light” on how government operates. See Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-773 (1989). The Complainant has not identified any public interest in the requested records and has not asserted that disclosure would shed light on the government’s operations. Neither do we discern an apparent public interest in disclosure of this record. Instead, the Complainant contends that he has a compelling personal interest in obtaining the record separate and apart from any public interest and he has been “irreparably harmed” by the Town’s denial.
Under the APRA, however, our sole function is to determine whether the requested document should be made available to the public at-large, not specific persons who assert a heightened personal interest in a document. If this Office determines that a particular document is a public record, then any person may access or inspect that record regardless of whether that person is an interested party. See R.I. Gen. Laws § 38-2-3(a). Once a record is made public under the APRA, that record is public to all without any restrictions. We note that in Bernard v. Vose, 730 A.2d 30 (R.I. 1999), the Rhode Island Supreme Court held that the petitioner did not have a right, under the APRA, to review his own parole board files, which contained personal and sensitive information about him, because once the files were made public to him under the APRA, the files would then be available for inspection by the general public. For this reason, Complainant’s relationship to any particular person identified in the requested records and personal interest in obtaining the records cannot factor into our analysis. See, e.g., Greichen v. Narragansett Police Department, PR 23-13; Provost v. Narragansett Police Department, PR 22-02; Gagliano v. Narragansett Police Department, PR 21-14; Harper v. Portsmouth Police Department, PR 19-15; Gardiner v. Rhode Island Department of Public Safety, PR 19-08.
Accordingly, we conclude that the privacy interests implicated by disclosing this report outweigh any public interest and that the Town did not violate the APRA by denying the request.
Furthermore, the implicated privacy interests cannot be effectively quelled by redaction since the requested records relate to a specific identifiable individual and names other private individuals, including minors. See Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 559 (R.I. 1989) (“the report at issue in the present case specifically relates to the job performance of a single readily identifiable individual. Even if all references to proper names were deleted, the principal’s identity would still be abundantly clear from the entire context of the report.”).
Although this Office has determined that the Town did not violate the APRA by denying Complainant’s APRA request, we observe that the Complainant may have a personal interest in at least viewing the requested report. While we admittedly do not know all the facts and circumstances concerning the events memorialized in the requested records, we urge the Town to consider options outside of the APRA process for addressing both individual privacy interests and the Complainant’s personal interest in the records. We also make no determination whether the Complainant may be able to obtain the requested report through other legal means as these issues are not before this Office and are outside our APRA jurisdiction.
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).
Here, we do not find injunctive relief appropriate as we have ultimately determined that the records sought were properly withheld under the APRA. Nevertheless, if Attorney Williamson continues to respond to APRA requests, a certification must be provided to this Office consistent with R.I. Gen. Laws § 38-2-3.16. Additionally, we were not presented with evidence that the violation found herein was willful and knowing, or reckless. It is undisputed that Attorney Williamson believed he was carrying out his duties as legal representative of the Town on behalf of the Chief Administrative Officer. We further note that the Town does not have any prior, similar violations. This finding serves as notice to the Town 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, 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 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/ Michael W. Field
Michael W. Field
Assistant Attorney General
 The Complainant also alleges discrimination on the part of the Town and his current employer in connection with his denial of employment. This Office’s authority in this matter is limited to investigating alleged violations of the APRA. See R.I. Gen. Laws § 38-2-8. As the allegations of discrimination are outside of the scope of the APRA, they will not be investigated.
 The Complainant’s rebuttal also challenges this Office’s authority to review the withheld documents in camera. Rhode Island General Laws § 38-2-8(b) gives this Office broad authority to conducts investigations into alleged violations of the APRA. It is standard practice for this Office to request unredacted, withheld records for a private review in order to determine whether the records were properly withheld (either in whole or in part) without compromising the non-public nature of the documents, until a determination is made otherwise.
 We cannot help but wonder if this issue could have been avoided had the Town emailed its response to the Complainant at the address provided on his request form on April 5, 2023 (or April 6, 2023) rather than sending the same by regular mail.
 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).