VIA EMAIL ONLY

August 21, 2023

Mr. Patrick Anderson

Mr. Tim White

Peter D. Ruggiero, Esquire

                White v. Town of Jamestown

Dear Mr. Anderson, Mr. White, and Attorney Ruggerio:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaints filed by Mr. Patrick Anderson and Mr. Tim White (“Complainants”) against the Town of Jamestown (“Town”).  Because these Complaints largely pertain to the same issues, we have consolidated them.  For the reasons set forth herein, we find that the Town violated the APRA.

In response to the Complainants’ respective requests, the Town provided the Complainants with records, which included a nomination paper submitted by the Sabina Matos campaign.[1]  The names of the signatories and the street on which they live were disclosed.  The nomination paper was redacted to not disclose the street address number and signatures of signatories.  The Town informed the Complainants that such redactions were made in accordance with R.I. Gen. Laws § 38-2-2(4)(I)(b).  The Town also gave the Complainants the option to view an unredacted copy of the nomination paper without the ability to make a copy or take a picture.

In his Complaint, Complainant Anderson asserted that the information the Town redacted was not exempt under R.I. Gen. Laws § 38-2-2(A)(I)(b) because “[n]omination papers are not personnel records, not deemed confidential under federal or state law and do not constitute an unwarranted invasion of personal privacy.”  Complainant White further asserted that the public has a right to inspect and review nomination papers, which the Town “choke[d]” off by “taking a magic marker to the document.”  He asserted that this public interest was especially important given the allegations that there were improper or fraudulent signatures on the nomination paper in question.

In response, the Town asserted that it did not violate the APRA because it provided the opportunity to inspect the responsive documents without any redactions and the redactions made were appropriate.  The Town asserted that the street address numbers and signatures implicate the privacy interests of the signatories and could potentially lead to identity theft.

The exemption invoked by the Town shields personal individually identifiable records from disclosure when such disclosure would constitute an unwarranted invasion of privacy.  See R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).  There is not a clear bright line rule on whether street addresses and signatures are per se exempt from disclosure under R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).  Rather, such a determination is fact and context dependent.  See Szerlag v. Town of East Greenwich, PR 18-36 (noting that “signatures of government officials are not per se public or private, but largely fact and context dependent” and determining signature was exempt in situation where the asserted public interest pertained to identifying the person behind the signature, not the signature itself).[2]

As recognized by the Rhode Island Supreme Court, the APRA contemplates a “balancing test” whereby the “public interest” in disclosure is weighed against any “privacy interest.”  See Direct Action for Rights and Equality v. Gannon, 713 A.2d 218 (R.I. 1998).  Consequently, we must consider the “public interest” versus the “privacy interest” to determine whether the disclosure of the redacted information “would constitute a clearly unwarranted invasion of personal privacy[.]” R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).

Turning first to the privacy interests of the nomination paper signatories, the United States Supreme Court has held that the “central purpose” of the Freedom of Information Act, and by extension the APRA, “is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”  United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 744 (1989).[3]

Here, the information at issue is not “information about private citizens that happens to be in the warehouse of the Government.”  Id. (emphasis added).  Rather, at issue is information that members of the public voluntarily provided by nominating a candidate for political office.[4]  Providing signatures on nomination papers is necessary to show “a significant modicum of support before” a candidate’s name is placed on the ballot.  See Jenness v. Fortson, 403 U.S. 431, 442 (1971).  Nomination paper signatures establish that a political candidate has “demonstrable support among the voting public.”  Goldstein v. Sec’y of Commonwealth, 484 Mass. 516, 142 N.E.3d 560, 570 (2020) (quoting Barr v. Galvin, 626 F. 3d 99, 111 (1st Cir. 2010), cert. denied, 565 U.S. 929 (2011)).  Indeed, the reforms of the old party system that included the nomination signature process gave individual members of a political party “a greater voice in the selection of party candidates.”  Malinou v. Bd. of Elections, 271 A.2d 798, 804 (R.I. 1970).  And the collection of such information typically occurs in public places, such as the entrance of supermarkets and town centers.  See Goldstein, 142 N.E.3d at 570; Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 762, 17 N.E.3d 1026 (2014) (recognizing the necessity for candidates to solicit nominating signatures outside entrance to supermarkets); Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83, 92, 445 N.E.2d 590 (1983) (“a person needing signatures for ballot access requires personal contact with voters”).

Moreover, the public policy of the State of Rhode Island demonstrates a clear preference for disclosure of certain voter information, including street addresses and signatures, in at least certain contexts.  See R.I. Gen. Laws §§ 17-9.1-6, 15.  Rhode Island General Laws § 17-9.1-15 instructs that voter registration cards, which contain inter alia voter street addresses and signatures, “shall be public records open to public inspection and copying at all reasonable times.”  See R.I. Gen. Laws § 17-9.1-6.  The statutory requirement that this voter information be open to public inspection and copying via voter registration cards diminishes the individual privacy interests in keeping this information private in the instant matter.  We also note that the Town did not cite any specific state or federal law that shields voter information on nomination papers from disclosure.  Additionally, the fact that the Town offered the option to inspect unredacted copies of the records in question further evidences that the records do not contain highly sensitive non-public information.[5] We also note the representation of Complainant Anderson that the Secretary of State’s Office has made unredacted digital copies of nomination signature pages for all 1st District special election candidates available to the public and press — including those papers submitted by the town of Jamestown, with the exception of the nomination paper at issue in this case because it was not passed on to the Secretary of State’s Office.  As such, although this is not dispositive, there is evidence in the record that the type of record at issue in this case is often treated as a public record in unredacted form.

This policy preference for the disclosure of certain voter information does have limits.  As this Office found in The Providence Journal v. Rhode Island Secretary of State, PR 18-38, the birth dates of voters constituted personally identifiable information exempt from disclosure.  However, of note, birth dates, unlike street addresses and signatures, are not included in the voter registration cards made public by R.I. Gen. Laws § 17-9.1-15.  See RI Gen Laws § 17-9.1-6.  Additionally, the APRA request at issue in The Providence Journal v. Rhode Island Secretary of State, PR 18-38, sought a mass, digitized, searchable database containing the birth dates of all 790,000 registered Rhode Island voters as opposed to this request that pertains to a particular nomination paper.

Turning to the second element of the balancing test, 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).  Here, Complainant White avers that the public has an interest in the redacted information on this nomination paper because it was submitted on behalf of a candidate for public office and there are currently “underlying allegations that someone or some people forged signatures on nomination papers.”  This assertion is supported by the July 13, 2023 letter from the Jamestown Board of Canvassers Clerk to the Jamestown Police Department included in the documents the Town produced in response to Complainant White’s APRA request.  In the letter, the Clerk details potential irregularities in the names and signatures on the nomination paper in question.  Additionally, Complainant White avers that his investigative efforts have located individuals who, upon viewing nomination signature papers submitted in connection with the upcoming primary election, stated that the signature was not theirs, despite those signatures having been accepted by the local board of canvassers in those towns.  He asserts that this suggests that the system set up to check signatures statewide is flawed and more information is needed to shed light on that system.[6]

The verification of nominating signatures is an important part of the electoral process in Rhode Island.  See R.I. Gen. Laws §§ 17-6-2, 17-14-11.  And public disclosure “promotes transparency and accountability… related to the important interest of preserving the integrity of the electoral process.”  See John Doe No. 1 v. Reed, 561 U.S. 186, 199 (2010).  Here, the Complainants’ requests were made in the context of allegations that irregularities existed in the names and signatures on the nomination paper at issue.  The public release of the information implicated by this narrowly tailored request can reasonably be expected to shed light on this important public interest.

We note the Town’s asserted concern that disclosure of the redacted information could risk identity theft or chill voter participation in the electoral process.  We appreciate these concerns, but in the specific circumstances of this case find that the balancing test requires disclosure.  It would be within the Legislature’s purview to take steps to increase safeguards for sensitive voter personal information that may be susceptible to identity theft in a manner that is consistent with both privacy interests and the public interest in the electoral process.

We also address one additional issue.  Complainant White’s request was framed more broadly than Complainant Anderson’s request. In addition to the redactions discussed above, Complainant White also takes issue with redactions made to a July 13, 2023 letter from the Town Board of Canvassers to a Jamestown Police Department detective that was responsive to his request. The letter described certain information related to some of the names listed on the nomination paper that led the Town to suspect impropriety.  The Town acknowledges that certain redactions were inadvertently made to this document due to the pressing demands of receiving multiple requests related to the nomination paper and the Town subsequently re-produced the letter to Complainant White with certain redactions removed.  Complainant White, however, still takes issue with the remaining redactions of the names of the private individuals mentioned in the letter, as well as the redaction of one address.  The only exemption invoked by the Town for redaction of this document is the privacy balancing test pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).  We find the nature of these redactions to be different from the redactions on the nomination paper.  Whereas there is a lower privacy and higher public interest in a nomination paper for all the reasons discussed above, the letter is in a different posture.  Private individuals have a privacy interest in their names not being disclosed in connection with a potential police investigation.  Additionally, we do not perceive a substantial public interest in these redacted names.  As noted above, public interest under the APRA encompasses records that shed light on governmental conduct.  The redacted version of the letter already sheds light on government conduct by disclosing the actions of the Town in connection with the nomination paper.  Based on the record before us in this particular case, revealing the names of the individuals referenced in the letter would not shed meaningful additional light on governmental conduct.  As such, we determine it was permissible for the Town to redact the names and street address in the letter.