Rhode Island Advisory Opinions October 03, 2003: PR 03-18 (October 3, 2003)

Rhode Island Attorney General Opinions

2003.

PR 03-18 (2003).

Dear Ms. Hayden,

The investigation into your Access to Public Records Act ["APRA"] complaint against the City of Warwick is complete. By letter of February 27, 2003, you relate that in September 2002, you were an election moderator employed by the Warwick Board of Canvassers. Following the primary held that month, you were informed by Mr. Joseph Gallucci, Clerk of the Board of Canvassers, that he had received a letter that you describe as "against you." At some point in October 2002, you met with Mr. Gallucci and reviewed the substance of the letter's contents with him. Mr. Gallucci did not allow you to see the letter, nor were you permitted to learn the identity of the person who wrote it. You further indicate that in October, you were "demoted" to the position of election supervisor by the Board.

You subsequently sent a written request to Mr. Gallucci dated December 4, 2002, asking for the "written letter complaint" received by the Board. There is no evidence that you ever received a reply to your December 4, 2002, letter from the City.

This Department has received a substantive response to the allegations from City Solicitor John G. Earle. Mr. Earle submits that the document requested is not a public record because it is a personnel record which can be identified to an individual employee. See R. I. Gen. Laws § 38-2-2(4)(i)(A)(I). With respect to your work for the Board of Canvassers, Mr. Earle states:

Although Ms. Hayden is not a permanent employee of the City of Warwick, I would submit that her role as a poll worker during elections places her in the position of an 'employee' for purposes of the Act. She is engaged by the City of Warwick to perform services and is compensated by the City for same. Her work is directed by the City of Warwick Board of Canvassers. The Board of Canvassers reviews and evaluates the qualifications of all potential and current poll workers, provides for their training, and assigns and controls their work stations and duties.

Mr. Earle indicates that during your October meeting with Mr. Gallucci, Mr. Gallucci informed you that "the author of the letter had been assured confidentiality" and told you that "he would not release the letter to [you] as he believed that the letter was not a public document."

The Access to Public Records Act provides a specific exception for certain records that can be identified to an individual employee:

All records which are identifiable to an individual . . . employee, including, but not limited to, personnel, medical treatment, welfare, employment security, pupil records, all records relating to a client/attorney relationship and to a doctor/patient relationship, and all personal or medical information relating to an individual in any files, including information relating to medical or psychological facts, personal finances, welfare, employment security, student performance, or information in personnel files maintained to hire, evaluate, promote, or discipline any employee of a public body; provided, however, with respect to employees, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state or municipality, work location, business telephone number, the city or town of residence, and date of termination shall be public.

R. I. Gen. Laws § 38-2-2(4)(i)(A)(I).

Based on the evidence presented, we conclude that the City of Warwick did not violate the APRA by refusing to give you a copy of the letter at issue. As an initial matter, for the purposes of the APRA we conclude the evidence establishes you were in fact an "employee" of a "public body" (i.e., the City of Warwick). Mr. Earle indicates that you received compensation for the services you provided during elections, received training, and were supervised by other employees of the City. The City was responsible for the operation of the polling station in which you worked and for determining the nature of your job responsibilities. These are all indicia of an employer-employee relationship.

We also conclude the specific document you requested is not a public record and therefore not subject to the APRA. Documents are not public records under the APRA insofar as they "are identifiable to an individual . . . employee, including, but not limited to . . . information in personnel files maintained to hire, evaluate, promote, or discipline any employee of a public body." R. I. Gen. Laws § 38-2-2(4)(i)(A)(I). The evidence establishes that the document you seek is identifiable to a particular employee, namely, you. Accordingly, this document is not a public record under the APRA.

The fact that you have made a request for a document that is in your own personnel file and identifiable to you does not affect our analysis under the APRA. If we were to conclude in this case that this document is a public record, then any person making the same APRA request would be entitled to it. Rhode Island law does establish a right for employees to inspect their personnel files, but not by way of a public record request under the APRA. See R. I. Gen. Laws § 28-6.4-1 This finding does not address your rights, if any, under § 28-6.4-1, because the Attorney General's jurisdiction in this matter is limited to issues arising under the APRA.

The final issue raised by your complaint is the City's failure to respond to your December 4, 2002, request to Mr. Gallucci. The APRA requires:

Any denial of the right to inspect or copy records provided for under this chapter shall be made to the person or entity requesting the right by the public body official who has custody or control of the public record in writing giving the specific reasons for the denial within ten (10) business days of the request and indicating the procedures for appealing the denial. Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.

R. I. Gen. Laws § 38-2-7. Mr. Earle concedes that neither Mr. Gallucci nor any other City official responded to your December 4 request. Because the City did not respond to your request within ten days, we find it violated the APRA's time provisions.

Upon a finding that a complaint brought pursuant to the APRA is meritorious, the Attorney General may initiate suit in the Superior Court. See R.I. Gen. Laws § 38-2-9. There are two remedies available under the APRA: (1) the Court may issue injunctive relief or declaratory relief, or (2) the Court may impose a civil fine not exceeding one thousand ($1,000) dollars against the public body or any of its members found to have committed a willful and a knowing violation. See id.

In this case, we believe that neither remedy is appropriate. Specifically, we have been presented with no evidence that the City of Warwick's failure to respond to your December 4, 2002, request was a willful and knowing violation of the APRA. Moreover, we have found that the document was not a public record under the APRA, so injunctive relief is not appropriate. This finding shall serve as notice to the City of Warwick that it must comply with R. I. Gen. Laws § 38-2-7 when responding to any request under the APRA.

Nothing within the APRA prohibits an individual from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in the Superior Court. Please be advised that we are closing your file as of the date of this correspondence.

We thank you for your interest in keeping government open and accountable to the public.

Sincerely,

Joe Gaeta

Special Assistant Attorney General

cc: John G. Earle, City Solicitor, City of Warwick