VIA EMAIL ONLY

June 7, 2023

Ms. Katherine Gregg

Mr. Eli Sherman

Ms. Andrea M. Shea, Esquire

Deputy Executive Counsel

Sherman v. Office of the Governor                     

Dear Ms. Gregg, Mr. Sherman, and Attorney Shea:

We have completed our investigation into the two separate Access to Public Records Act (“APRA”) Complaints respectively filed by Ms. Katherine Gregg and Mr. Eli Sherman (collectively, “Complainants”) against the Office of the Governor (“Governor’s Office”). Because both Complaints pertain to a request for the same record and present the same basic issues, we have consolidated these matters. For the reasons set forth herein, we find that the Governor’s Office violated the APRA and is required to disclose the requested record.

Ms. Gregg submitted an APRA request to the Governor’s Office seeking “the email that was shared with the governor and/or his staff that details what happened when DOA Director James Thorsen and DCAMM Director David Patten visited with Scout in Philadelphia, circa March 10-11, 2023, including the allegations of ‘inappropriate conduct.’”[1]

Mr. Sherman submitted a similar request to the Governor’s Office stating: “We’ve received a tip that directors Jim Thorsen and David Patten acted inappropriately while visiting Scout’s Bok last month in Pennsylvania. I’m told an email was shared with the governor and/or his staff that details what happened. I’m seeking that email, along with any other emails since made to or from the governor and his staff in connection with the allegations.”

The Governor’s Office responded to each request by stating that it maintained one responsive email that was being withheld.[2]  The Governor’s Office denied each request based on two exemptions.  The Governor’s Office cited R.I. Gen. Laws § 38-2-2(4)(P), which exempts certain investigatory records, and R.I. Gen. Laws § 38-2-2(4)(A)(I)(b), which exempts records when disclosure would constitute an unwarranted invasion of personal privacy. 

The Complainants then each submitted a Complaint to this Office. Ms. Gregg’s Complaint referenced public reporting that provides some context regarding the APRA request and the withheld email. As described in the public reporting referenced in Ms. Gregg’s Complaint, Scout Urban LLC (“Scout”) is a company that presented the State with a $56 million reuse plan for the Cranston Street Armory. In connection with considering that proposal, Department of Administration (“DOA”) Director James Thorsen[3] and Division of Capital Asset Management and Maintenance (“DCAMM”) Director David Patten took a trip to Philadelphia to view one of Scout’s recent redevelopment projects. According to the public reporting, staff at Scout sent an email to someone at the Governor’s Office regarding that trip. As stated in the public reporting, shortly following the trip, Director Thorsen met with Human Resources and Director Patten went out on paid leave.

Ms. Gregg contends that there is a public interest in the requested email because “[t]he unreleased email from the officials at Scout hangs over the McKee administration’s decision on whether to seek a budget earmark for the $56 million Cranston Street Armory renovation the company has recommended.” Ms. Gregg asserts that “[n]o ‘privacy’ right over-rides the merits of full public disclosure, to remove the specter that an email could sway the decision-making on a potential $56 million contract.” She also asserts the email could give the company leverage over state decision-making if its contents reflect badly on two members of the Governor’s administration.

Mr. Sherman contends that the privacy exemption does not apply because the two subjects of the email have already been publicly identified in news reports. Mr. Sherman also clarified that his APRA request is not seeking any documents related to any personnel review conducted by the Governor’s Office related to this matter. Mr. Sherman argues that the allegations contained in the requested email show that two high-ranking members of the government acted highly inappropriately during a business trip. He states that the email sheds light on how government operates because it relates to Scout’s project proposal for the Cranston Street Armory, which implicates millions of taxpayer dollars. Mr. Sherman also asserts that the investigatory records exemption is inapplicable because the fact that the email may have launched an investigation does not by itself trigger the investigatory exemption.

·         Response of the Governor’s Office

The Governor’s Office provided substantive responses to the Complaints and also provided the withheld email for in camera review. The Governor’s Office asserts that the withheld email is exempt pursuant to Exemption (P) because “[t]he claims made in the email form the basis of a pending personnel review to investigate the occurrence of potential violations of State policies, procedures and rules applicable to State employees.” The Governor’s Office asserts that the phrase “investigatory records” has been defined as “‘those records which originate in or are generated during the course of an investigation concerning the violation of some law, whether the investigatory body is an independent law enforcement agency or an in-house investigatory body of some public agency.’ See Providence J. Co. v. Rhode Island House, No. P.C. 85-1412, 1986 WL 714235, at *5 (R.I. Super. Feb. 19, 1986).”

The Governor’s Office also asserts that the email is exempt pursuant to Exemption (A)(I)(b) and the privacy balancing test. The Governor’s Office contends that the email is a “personnel record” and cites precedent providing that a government employee has a privacy interest “in his or her employment history and record of job performance, not only because of the embarrassment from possible negative disclosures, but also because of the compilation of personal information found in such records.” The Governor’s Office also cites Pawtucket Teachers Alliance v. Brady, 556 A.2d 556 (R.I. 1989), where the Rhode Island Supreme Court determined that a report containing a summary of a consultant’s investigation into complaints about a school’s operations and newly appointed principal was non-public. The Governor’s Office cites precedent recognizing a privacy interest in documents related to employee misconduct or incompetence where disclosure could cause embarrassment. The Governor’s Office additionally states that it “had the benefit of additional information that it considered in conducting its balancing test. The information the Office considered is private, confidential information that the Office is prohibited by law from disclosing, including but not limited to R.I. Gen. Laws § 9-1-28.1(a)(3).”[4]

Moreover, the Governor’s Office stated that no reasonably segregable portion of the requested record was available because the employees identified in the document are specifically referenced in the APRA request and redaction cannot mitigate the privacy interest. Additionally, the Governor’s Office provided an affidavit from DOA Deputy Personnel Administrator Pamela Moscarelli representing that on March 10, 2023, she “became aware of certain allegations of misconduct during an employment-related site visit by State employee(s), which were detailed in an email from a third-party that has been provided to the Division of Human Resources.” The affidavit states that “[t]he Division of Human Resources considers complaints or allegations with respect to employee conduct to be a personnel-related record. The allegations of misconduct, as reported and as found in the email, are presently under investigation.”

·         Additional Submissions

We acknowledge the Complainants’ rebuttals and note that Ms. Gregg’s rebuttal was submitted by legal counsel on her behalf. Among other points, Mr. Sherman’s rebuttal notes that the Governor’s Office has released certain documents that may be related to the ongoing personnel investigation, including a redacted version of a March 12, 2023 internal memorandum from Director Patten to Director Thorsen regarding the “BOK site visit.” Mr. Sherman states that a member of the Governor’s Office staff released the memorandum on May 12, 2023. Both Complainants’ rebuttals attached a copy of the redacted memorandum, in which Director Patten describes aspects of the site visit and speaks positively about the experience.

Additionally, this Office asked the Governor’s Office to provide a supplemental submission addressing two questions and noted that the response of the Governor’s Office could be provided partially or entirely in camera if deemed necessary. This Office asked the Governor’s Office to address: 1) whether the “confidential” information referenced by the Governor’s Office could be shared with this Office in camera; and 2) the status of the personnel review referenced by the Governor’s Office, including whether there is an expected completion date.

The Governor’s Office provided a substantive response to both questions in an in camera submission to this Office. After taking the steps it believed necessary to comply with confidentiality requirements, the Governor’s Office disclosed to this Office the confidential information that it previously referenced. We note that the additional information provided to this Office was of a fairly general nature and this Office did not receive any additional detailed or in-depth information. We also note that as of the date of this finding, this Office has not been informed regarding any resolution of the personnel review.

Pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b), the APRA exempts from disclosure “[p]ersonnel and other personal individually identifiable records . . . the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]” 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 record “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.”).^[5]

This Office has conducted an in camera review of the withheld record. The in camera nature of our review constrains our ability to discuss the email in depth, but we do recognize a privacy interest in its contents. The email discusses two particular government employees and our in camera review confirms Deputy Personnel Administrator Moscarelli’s characterization of the email as containing “allegations of misconduct.” The individuals named in the email have a privacy interest in its contents. See Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1026-27 (9th Cir. 2008) (recognizing government employees’ privacy interest in avoiding harassment and “embarrassment and stigma” that could be associated with being named in a report). Disclosure of the email could be very damaging to the reputation of the employees who are the subject of the email.  Moreover, the privacy interest cannot be remedied by redaction because, as the Governor’s Office notes, the APRA request specifically identifies the individuals who are the subject of the email. Additionally, the fact that certain information related to the withheld email has been the subject of public reporting does not eliminate the privacy interest. See Dep’t. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-773 (1989) (“the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information”) (internal quotations omitted); Kimberlin v. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (“official confirmation of what has been reported in the press and the disclosure of additional details could reasonably be expected to constitute an unwarranted invasion of [staff-level government lawyer’s] personal privacy”).

We now turn to consider the public interest in the email. The public has an interest in a document that “sheds light” on how government operates.  See Reporters Comm. for Freedom of the Press, 489 U.S. at 772-773. In this case, the withheld email concerns allegations of misconduct involving the Director of DOA[6] and the Director of DCAMM. As such, the allegations concern extremely senior government officials who, at the time of the site visit, each respectively held the highest leadership position in important departments of state government. According to state websites, “DCAMM’s Division Director David Patten leads a team of over 120 staff across five state campuses and numerous satellite locations.” See https://dcamm.ri.gov/about-us. Moreover, “DCAMM has the responsibility for managing and maintaining an asset portfolio of 1800 buildings statewide while meeting the highest standards for health, safety, security, accessibility, energy efficiency and comfort for the state employees who occupy these buildings and the public they serve.” Additionally, the significant responsibilities entrusted to DOA “include developing and administering the state budget; determining and maintaining standard specifications for purchases, contracts, bids, and awards for state purchases; maintaining and procuring state facilities; administering the statewide planning program; and managing the personnel of state departments and agencies.” See https://admin.ri.gov/about-us.

The fact that the email contains allegations of misconduct against such senior government officials increases the public interest in disclosure of the document. See Providence J. Co. v. U.S. Dep’t of Army, 981 F.2d 552, 568 (1st Cir. 1992) (“The higher the rank of the public official alleged to have engaged in misconduct, the greater the legitimate public interest in disclosure is likely to be.”); Kimberlin, 139 F.3d at 949 (“[i]n view of the purpose of the FOIA, it will ordinarily be enough for the court to consider, when balancing the public interest in disclosure against the private interest in exemption, the rank of the public official involved and the seriousness of the misconduct alleged”); Bartko v. United States Dep’t of Justice, 128 F. Supp. 3d 62, 70 (D.D.C. 2015), aff’d in part, rev’d in part on other grounds, 898 F.3d 51 (D.C. Cir. 2018) (“Given the public-accountability purposes of FOIA, affording high-level public officials lesser privacy interests is logical, as their conduct and mistakes shed light on official government positions.”); Miller v. U.S. Dep’t of Justice, 872 F. Supp. 2d 12, 25 (D.D.C. 2012) (citing caselaw and recognizing that federal employees’ privacy interests and rank within the agency are often inversely proportional, and that information regarding high-ranking officials should more often be disclosed); Stanley v. U.S. Dep’t of Treasury, No. 206-CV-072, 2007 WL 2025212, at *5 (N.D. Ind. July 9, 2007)  (“Obviously, the public interest in disclosure is higher when the individual under investigation is a high-ranking public official rather than a low-level agency employee.”); see also Lyssikatos v. Narragansett Police Dep’t, PR 21-12 (recognizing in the context of internal affairs reports that the rank and position of the official whose privacy interests are at issue should be considered when conducting the balancing test).

Although the individuals named in the email have some privacy interest, the fact that the email contains specific allegations of official misconduct by senior members of government diminishes the privacy interest, at least to some extent. Cf. Forest Serv., 524 F.3d at 1025 (“[A] government employee’s privacy interests may be diminished in cases where information sought under FOIA would likely disclose ‘official misconduct.”). Moreover, the nature of the alleged misconduct in the case before us is serious, not de minimis or trivial.

There is likewise a public interest because the allegations pertain to potential misconduct by government officials that is directly related to the performance of their official duties. Cf. Dobronski v. F.C.C., 17 F.3d 275, 278 (9th Cir. 1994) (“As for the plaintiff’s interest in disclosure, Dobronski, or any other citizen, has a right to investigate whether government officials abuse their offices and the public fisc by improperly using sick leave to take unauthorized paid vacations.”). As Deputy Personnel Administrator Moscarelli’s affidavit confirms, the withheld email concerns “allegations of misconduct during an employment-related site visit by State employee(s).” As such, not only does the email concern alleged misconduct by senior government officials, but this alleged misconduct also occurred during a work trip when those officials were acting in their official capacities as senior government officials representing the State of Rhode Island. Additionally, based on the record before us, including our in camera review, we believe that the Complainants are correct in reasoning that the email and the allegations contained therein have at least the potential to impact a possible multi-million dollar government contract.

Although the Governor’s Office asserts the email constitutes a personnel record and cites precedent regarding personnel records, we find that precedent distinguishable.  Here, the APRA request is not seeking internal personnel records or a compilation of personal information about a government employee. Rather, the request is seeking a single email that was sent from an outside third-party. Indeed, it seems nothing would prohibit the sender of the email from themselves disclosing it. Moreover, much of the conduct alleged in the email seemingly occurred in a relatively open, public setting, involving interactions between the state officials and third parties. There is no indication that the individuals who are the subject of the email had any expectation of privacy in the purported interactions and communications that are discussed in the email. The allegations do not pertain to intimate or inherently private matters. There is a public interest in allegations regarding how high-level state officials openly acted in front of third parties while they were in the course of representing the State of Rhode Island. Additionally, the Governor’s Office’s reliance on Pawtucket Teachers Alliance v. Brady is of limited application because that case analyzed the withholding of records under a prior version of the APRA that exempted “[a]ll records which are identifiable to an individual . . . employee; including, but not limited to, personnel . . .  records.” 556 A.2d at 558. That provision has since been replaced with the balancing test.

Balancing all these factors, we find that although there is a privacy interest in the email, it is outweighed by a very substantial public interest. Accordingly, the Governor’s Office violated the APRA by withholding the email and it must be disclosed.

We stress that this finding takes no position on the merits of the allegations contained in the email. Where, as here, there have not yet been any official findings regarding the veracity of the allegations, the application of the balancing test is a closer call. However, in Providence Journal Company v. U.S. Dep’t of Army, the First Circuit noted that when allegations of misconduct are raised against an “official of greater authority or importance,” disclosure may be required, even in cases where the allegations are ultimately determined to be unsubstantiated. 981 F.2d at 569. The Court admonished that there are no bright-line rules and the “relevant variables must be determined and weighed in light of the particular circumstances in each case.” Id.

In other contexts, the First Circuit has held that where “the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure, and instead must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 54 (1st Cir. 2014) (internal citations and quotations omitted). Here, one significant “public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties” and the allegations contained in the email constitute “evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Id. (emphasis added). Although the in camera nature of our review would make a detailed discussion of the withheld email inappropriate, we observe that the allegations in the email are specific and detailed. This is not a situation where the allegations being levied are vague or entirely unsubstantiated. The email includes evidence to support some of its allegations and constitutes at least some evidence of official misconduct by one or more high ranking official(s), even if the allegations might ultimately be disproved or mitigated.[7] Additionally, the requesters have established more than bare suspicions;  the existence and general subject matter of the email has been publicly reported, as has the fact that immediately following the trip Director Thorsen met with Human Resources and Director Patten went out on leave.

Relatedly, even if the allegations are ultimately determined by DOA to be meritless, there is a public interest not only in the alleged conduct of the involved officials, but also in how the government responds to these particular allegations. In the face of the particular and specific allegations asserted in the withheld email, we believe the public has an interest in knowing those allegations and being able to critically assess and hold the government accountable for whatever action it does or does not take in response to the allegations. To be clear, we are not expressing that the government should or should not take any particular action in response to the allegations, as it is not our role to evaluate the substance of the allegations. We simply conclude that the public should be able to assess any government response to the allegations in light of the content of the email.     

We emphasize that our finding is based on the particular circumstances of this case, including what we observed from our in camera review, the extremely senior level of the employees involved, and the nature of the allegations, which pertain to an official work trip related to a significant state project.  Cf. Stern v. F.B.I., 737 F.2d 84, 92 (D.C. Cir. 1984) (“the level of responsibility held by a federal employee, as well as the activity for which such an employee has been censured, are appropriate considerations for determining the extent of the public’s interest in knowing the identity of that censured employee” and determining that names of lower level censured employees may be withheld but requiring disclosure of senior employee’s name). Even if DOA’s investigation ultimately concludes that the allegations are unfounded or that there are mitigating circumstances, in these particular circumstances the public has an interest in knowing the allegations that were raised regarding the conduct of these high-ranking government officials during an official work-related trip where they were acting in their official capacities as representatives of this State, especially when those allegations in and of themselves have the potential to impact a substantial state project. See Pawtucket Teachers Alliance, 556 A.2d at 558 (“the basic policy of the act is in favor of disclosure”). We reiterate that this finding is narrowly based on the confluence of all the particular circumstances of this specific case.