Rhode Island Advisory Opinions March 29, 2005: OM 05-04 (March 29, 2005)

Rhode Island Attorney General Opinions

2005.

OM 05-04 (2005).

Black v. Barrington Board of Tax Assessment Review II

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With respect to the second issue, this question boils down to whether the Town is permitted to charge $15.00 per search and retrieval hour for the time dedicated to making photocopies. The reason we hone in on this question is because in response to your complaint, the Town has provided an affidavit by the Tax Assessor, which affirms that the search and retrieval time assessed was devoted to preparing the requested documents for photocopying, actually photocopying the requested documents, and returning the original documents to their regular place of business. In the typical case, this would be a moot question since the photocopying and its attendant duties can be accomplished in less than one hour, which would of course be free pursuant to R.I. Gen. Laws § 38-2-4(b), but here, hundreds of photocopies were made and several hours were expended in doing so.

In Direct Action for Rights and Equality v. Gannon, 819 A.2d 651, 661 (R.I. 2003), the Rhode Island Supreme Court addressed the City of Providence's argument that the time expended redacting non-public information from otherwise public documents should be borne by the requesting party because, the City argued, it was part of the search and retrieval process. Referencing its prior opinion in The Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1139 (R.I. 1998), the Court observed that R.I. Gen. Laws § 38-2-4 (a) & (b) "require[s] that a party seeking production of public records pay the costs relating to copying, search and retrieval of such documents." DARE, 819 A.2d at 611. Based upon this provision, the Court concluded that "the costs of redaction should be borne by the requesting party because it is part of the process of retrieving and producing the requested documents." Id.

Based upon DARE it is clear that search and retrieval fees assessed pursuant to R.I. Gen. Laws § 38-2-4(b) encompass more than time physically expended searching for and retrieving public records. Were this to be the case, as the Blacks argue, a public body would have no recourse where physical search and retrieval was relatively minimal, but where other factors, such as redaction or volume, necessitated an expenditure of great time and effort to make the public records available. The DARE Court had the opportunity to embrace the Blacks' argument, but the Court rejected it. Instead, the DARE Court concluded that not only was the time devoted to a physical search and retrieval properly allocated to R.I. Gen. Laws § 38-2-4(b), but also the time dedicated to reviewing the requested documents and making redactions. The Court explained that this "redaction time" properly fell within the ambit of R.I. Gen. Laws § 38-2-4(b) because this time was "part of the process of retrieving and producing the requested documents." DARE, 819 A.2d at 661 (emphasis added). Similar to the "redaction time" expended in DARE, we conclude that the "photocopying time" expended in this case is properly allocated to R.I. Gen. Laws § 38-2-4(b) "because it is part of the process of retrieving and producing the requested documents." Id. (Emphasis added). [37]

Moreover, we do not believe that the time devoted to the above falls within the ambit of R.I. Gen. Laws § 38-2-4(a), which provides that a $.15 charge may be assessed for "[t]he cost per copied page of written documents provided to the public." (Emphasis added). According to its plain language, this provision provides for the assessment of the "cost" for each photocopied page. The time expended preparing documents to be photocopied, as well as the time devoted to photocopying documents, cannot be associated with the "cost" of photocopied documents, and instead, is more properly attributable to the "process of retrieving and producing the requested documents." DARE, 819 A.2d at 661.

In a similar vein, the third issue concerns the search and retrieval time charged for copying various audio tapes of Board meetings. You assert that you should not have been charged the time it took to copy these audio tapes because the person copying the audio tapes could have been doing other work while the tapes were recorded. The Tax Assessor, however, affirms that:

"[t]he taped [meetings] can only be recorded by placing two recording devices next to one another and having one replay the audio while the other records the audio. I do not have at my disposal a stereo system which would allow me to place two tapes in a dual tape deck and simply tape the audio internally. The tapes must be recorded in the manner described above which necessitates a completely quiet location. I first attempted to record the tapes in my office, but after reviewing the audio for quality I found there to be a considerable amount of background noise. I then decided to record the tapes in a meeting room behind the Council chambers so as to ensure complete quiet. I did not leave the room during the taping to ensure that there were no interruptions during the taping process. No other work was done during this time period and it was not possible to record these tapes in the unmonitored room, which is on a completely different floor from the Assessor's office adjacent to the Council chambers."

For the reasons discussed in DARE, as well as above, we find that the time expended to copying the audio tapes was properly allocated to R.I. Gen. Laws § 38-2-4(b) because this process was part of "retrieving and producing the requested documents." DARE, 819 A.2d at 661. (Emphasis added). [38] With this foundation, we address your specific complaints.

We start by addressing your complaints that you were improperly charged $65.25 and $91.75 for search and retrieval. With respect to these charges, we have already explained that pursuant to DARE the time assessed for preparing and photocopying documents is properly allocated to the "search and retrieval" process. Accordingly, we find no violation here. Nevertheless, we find no evidence that you were provided an hour of free search and retrieval for these two APRA requests and, although you have not provided this Department with copies of your requests, despite our request, based upon information provided by the Town it appears that both requests were made at separate times, thus entitling you to a free hour of search and retrieval for each request. Thus, the proper charges should be $50.25 and $76.75, respectively.

Next we address the charges associated with your July 12, 2004 APRA request where you sought: (1) a copy of the May 10, 2004 Board minutes, (2) audio tapes for the Board's June 29, 2004 meeting, (3) any decisions issued by the Board since April 23, 2004, and (4) copies of the individualized notices mailed to all appellants prior to each meeting for the past year. You claim that the 3.15 hours charged for search and retrieval and the 43 documents charged for photocopies was improper.

With respect to your assertion that the 3.15 hours charged for copying the June 29, 2004 Board meeting is unreasonable, we agree. Specifically, our review of the June 29, 2004 audio tape revealed that the meeting lasted approximately two hours and forty-five minutes, and although it is possible that the remaining 30 minutes is attributable to start-up and ending procedures, we have not been presented with any evidence to draw such a conclusion. Thus, based upon the evidence presented, you should have only been charged for 2.75 hours. As to your remaining arguments that you should have not been charged the search and retrieval time to copy the June 29, 2004 audio tape, for the reasons explained in DARE, we find that this assessment was not improper. Likewise, you claim that the $21.45 assessed for 43 photocopies violated the APRA. We disagree. The evidence demonstrates that you were charged $.15 for 43 photocopies, which totals $6.45; and that you were charged one hour search and retrieval time for the time associated with making these photocopies. Although we find no violation with these assessments, we also find no evidence that you were provided an hour of free search and retrieval for your July 12, 2004 APRA request. You also claim that relative to your July 26, 2004 APRA request, the $19.69 charge for 1.12 hours of search and retrieval needed to copy the July 21, 2004 Board meeting was violative. Our review of this audio tape finds this time to be reasonable, but that one hour of free search and retrieval time was not provided for your July 26, 2004 request.

Lastly, you contend that R.I. Gen. Laws § 38-2-4 was violated because the Town Hall maintains a photocopy machine that charges $1.00 per photocopy. In Murray v. Town of North Providence, PR 00-15, we examined an identical issue where a photocopy machine charged $1.00 and found no violation because there was no "evidence that [Mr. Murray] informed any Town employee that [the complainant] wished to photocopy what [he] believed to be public records." Murray is controlling here. Specifically, with regard to the only document that we have been advised that you photocopied on this machine, we have been presented no evidence to suggest that you informed any Town employee that you wished to photocopy a public record. In fact, we are informed by the Tax Assessor that the handwritten receipt that you submit as evidence is "from using a copy machine on [your] own, not from asking [the Tax Assessor's] office to make copies."

Moreover, with respect to your overall argument that a photocopy machine charging $1.00 per copy at the Town Hall violates R.I. Gen. Laws § 38-2-4, we observe that this provision only applies to records deemed to be a "public record," and not every document maintained at Town Hall is a "public record" pursuant to the APRA. Accordingly, since R.I. Gen. Laws § 38-2-4 does not apply in every situation where documents are copied at Town Hall, your argument that a photocopy machine that charges $1.00 per copy in all circumstances violates the APRA must fail. See Murray, PR 00-15.

C. Other Allegations

By letter dated August 18, 2003, and pursuant to the APRA, you requested a copy of a "manual," to which the Tax Assessor responded that "the above request is not public record and ther[e]fore unavailable." Blacks' Letter dated June 4, 2004, p. 79 (Exhibit G). You indicate that "[t]he response did not include the specific reason for denial, as required under RIGL Section 38-2-7(a)." Id. You further contend that "[t]he manuals are public records, and do not meet the criteria of any of the exceptions listed in RIGL Section 38-2-2(4) and, therefore, the Assessor is not in compliance with RIGL Section 38-2-3." Id. (Allegation #179).

In a related complaint, you allege that the Tax Assessor failed to respond to your April 22, 2004 APRA request, which appears to request information similar to your August 18, 2003 APRA request. Id. at Exhibit C. (Allegation #178). Thereafter, on May 10, 2004, you apparently re-submitted your April 22, 2004 APRA request to the Town Manager, who responded by letter dated May 13, 2004 that:

"[i]t is my understanding that [the April 22, 2004 APRA requests] were forwarded to the Town Solicitor for his review. Since I have had no previous involvement in [the April 22, 2004 APRA requests], I am not familiar with their status. I am hereby forwarding this inquiry to Town Solicitor Michael Ursillo for his review and response."

It is your position that the Town Manager's response violated R.I. Gen. Laws §§ 38-2-7 and 38-2-8 since the Town Manager's response that "he has nothing to do with this issue and that the matter has been forwarded to the Solicitor, is not an acceptable response to a public records request." Blacks' Letter dated June 24, 2004, page 4, Exhibit M. (Allegation # 180).

In response to these allegations, the Tax Assessor affirms that your April 22, 2004 APRA request was a "re-request" of your August 18, 2003 APRA request and "was in error because [you] already possessed the documents [you] were requesting." The Tax Assessor adds that the August 18, 2003 APRA request, which was originally denied, was fulfilled on or about February 6, 2004. As for the basis of the original denial, the Tax Assessor states that she "was originally under the impression that my pricing guide was my own personal property, but Solicitor Ursillo informed me otherwise and the requested documents were immediately disclosed to the [Blacks] . . . on February 6, 2004."

We begin by addressing your complaint regarding the non-response to your April 22, 2004 and May 10, 2004 APRA requests. Although the Tax Assessor argues that these requests were made in error and duplicative of other requests relating to the manual, nothing within the APRA prohibits duplicative requests and the failure to respond timely violated the APRA.

Next, we consider your complaint that your August 18, 2003 APRA request was improperly denied. We agree. Specifically, we observe that the denial on or about August 18, 2003 did not meet the requirements of R.I. Gen. Laws § 38-2-7(a), and the evidence presented demonstrates that although the Town originally believed the requested manual was exempt from public disclosure, the Town later determined that the manual was a public record.

Thereafter, by letter dated December 30, 2003, you requested, inter alia, "a copy of the new cost rate tables, as well as the former tables (for all classifications of property, including commercial and residential)." It is helpful to our understanding that on February 6, 2004 you were provided with over 700 photocopies responsive to your December 30, 2003 APRA request, including 61 pages designated as "tables." Later, by letter dated December 20, 2004, you submitted an application for appeal relating to your 2003 tax assessment, which sought a litany of material, including "[t]he Assessor's Manual." On January 8, 2005, you received 52 pages in response to your request. [39]

Despite the foregoing events, you maintain that you have never been provided a copy of the "manual" and the Town maintains that it has twice provide you a copy of the manual. Subsequent letters from you dated December 9, 2004, December 13, 2004, and January 13, 2005 stated respectively that "[t]he manual has not been provided;" that you have received the "tables," but not the "manual," and the "'[t]ables' are not the '[m]anual;'" and that "while the 'tables' may be contained in the 'manual,' they do not constitute the entire manual." These events, particularly that you had received some, but not all of the manual, led this Department to seek additional information from you concerning the manual, namely the number of pages the manual contained and the number of pages you received. [40]

By letter dated February 18, 2005, you identify two reasons for your conclusion that you have not been provided the entire manual. First, you claim that no Town official has told you that you received the "manual," as opposed to receiving the "tables." For instance, in response to your December 30, 2003 APRA request, wherein the Town provided 61 pages of "tables," you relate that the Solicitor "did not indicate that any of that which was provided in response to this request constituted the previously-refused manual, in whole or in part; therefore, it was not our expectation, nor understanding, nor our conclusion, nor the town's representation nor the town's statement that this information constituted all or any part of that manual." Later, in your February 18, 2005 correspondence, you continued that:

"[t]he town's [February 6, 2004] invoice identified the charges as being for 'tables. Nowhere was there any statement or indication that these 'tables' constituted the manual or any part of the manual; therefore, we did not expect nor think, nor conclude that these 'tables' constituted the entire manual or, necessarily, any part of the manual."

Such reasoning does not support an APRA violation.

As for your second reason, you compared the Town's February 6, 2004 response wherein you received 61 pages related to "tables" to the Town's January 8, 2005 response wherein you received 52 pages [41] related to the "manual." Comparing these two responses, you relate that pages 32 and 34 of the February 6, 2004 response where not included in the January 8, 2005 response; and that pages 4, 5, 11, 15, 16, 17, 18, 29, 34, 45, 53, 54, 55, and 56 [42] of the January 8, 2005 response were not included in the February 6, 2004 response. In addition to these discrepancies, you direct our attention to the computer generated page numbers in the upper right hand corner of the January 8, 2005 response (the previously cited page numbers are the sequential page numbers that you have designated), which demonstrate computer generated pages 1 through 65, but does not include computer generated pages 2, 15, 20, 24-28, 30, 40, 42, 46-47, 52, 56, 58-60, and 64.

Based upon the foregoing, the undersigned visited the Tax Assessor's Office and learned that the Tax Assessor's Office maintains a computer program consisting of many tables and a white binder book, sometimes referenced as the manual, which consists of some of the tables in the computer. According to the Tax Assessor, the manual binder consists of the tables used in the ordinary course of business, while some of the tables in the computer may never be used in the ordinary course of business. Further it was learned that the 61 pages of "tables" you received on February 6, 2004 were provided after entering these computer screens and printing the respective tables directly from the computer. In contrast, the 52 manual pages you received on January 8, 2005 were provided after photocopying the manual binder and our inspection of this binder confirms that you did receive the entire manual binder. The foregoing explains, as opposed to justifies, the discrepancies noted above. The foregoing also makes clear, in our opinion, that the Town's February 6, 2004 response to your request for "a copy of the new cost rate tables, as well as the former tables (for all classifications of property, including commercial and residential)" was incomplete. At a minimum, pages 18, 29, 53, 54, 55, and 56 of the January 8, 2005 response were not included in the February 6, 2004 response.

Next, we address your contention that R.I. Gen. Laws § 38-2-3(a), requiring that "every person shall have the right to inspect and/or copy those [public] records," was violated "by virtue of Solicitor Mr. Ursillo's December 29, 2003 letter to Complainants." Specifically, you indicate that the Solicitor's letter required that your APRA requests be made on a monthly basis and that, as opposed to examining records publicly available in a common hallway, the Solicitor's letter prohibited you from this area and required you to seek access through the APRA. See Blacks' Letter dated June 4, 2004, page 81-82 (Exhibit S). With the exception of an introductory and closing sentence, the Solicitor's letter reads:

"As you are aware, you are in the Office of the Tax Assessor on a frequent basis - up to three time[s] per week - with constant requests for information from the Assessor. At this point, your inquiries are interfering with the operation of the Assessor's Office. The Assessor cannot continue to devote time and energy to your multitude of questions on an almost daily, and certainly weekly, basis. In fact, your behavior is close to harassment.

"Beginning immediately, if you have requests for information pursuant to the Access to Public Records Act, you may submit them in writing on a monthly basis. The assessor will make every effort to respond to your requests pursuant to the Act.

"You must refrain from constantly appearing at the Town Hall Assessor's Office, so please either drop off your written requests to the Clerk's Office or mail them directly to the Tax Assessor."

Similarly, you claim R.I. Gen. Laws § 38-2-3(c), stating that a written request for information is not required for documents "readily available," was violated by virtue of the Solicitor's December 29, 2003 letter. (Allegation # 185). Specifically, you relate that "[t]he public area of the Tax Assessor's area includes field cards, maps, binders, and computer[s] for the public use which provides access to property record cards. This is the information which Complainants were primarily viewing and copying [and the Solicitor's letter] improperly denies Complainants access to this area." In pursuit of our investigation of this aspect of your complaint, this Department requested on several occasions to be directed to a copy of a request you allege was required for "readily available" documents. You have not directed us to a specific request and instead replied that this Department should "review the complaint itself which lists the types of public records we are being, and have been, denied free access to." Blacks' Letter dated December 9, 2004, p. 2. You relate that these documents "include all of the public records which are housed in the Tax Assessor's Office," and that "[a]s a practical matter, all public records to which we are entitled to have access should exist and be 'readily available.'" Id. You define "readily available" to mean not "packed away in storage at some other facility." Blacks' Letter dated December 18, 2004.

In response, the Town Solicitor indicates that his December 29, 2003 letter:

was not intended to prevent the Blacks from making inquires and obtaining records pursuant to the Access to Public Records Act. I believe the letter is quite clear that they had every opportunity to continue to make requests. The intent of the letter was to permit the Assessor's Office to conduct its daily business without interruption by the Blacks. * * * The intent here was to simply set up some type of procedure whereby the Assessor's Office could continue to perform its functions while allowing the Blacks the opportunity to request the information that they were entitled to under the Act.

According to R.I. Gen. Laws § 38-2-3(a) unless exempt "all records maintained or kept on file by any public body * * * shall be public records and every person or entity shall have the right to inspect and/or copy those records at such reasonable time as may be determined by the custodian thereof." Also, R.I. Gen. Laws § 38-2-3(c) states that "[e]ach public body shall establish procedures regarding access to public records but shall not require written requests for public information available pursuant to R.I.G.L § 42-35-2 or for other documents prepared for or readily available to the public." (Emphasis added). Based upon the evidence presented, we find no violations.

Specifically, the Solicitor's letter states that "[y]ou must refrain from constantly appearing at the Town Hall Assessor's Office, so please either drop off your written requests to the Clerk's Office or mail them directly to the Tax Assessor." We do not read this letter to be as prohibitive as you interpret, i.e., barring you from the Tax Assessor's Office. Nowhere in the Solicitor's December 16, 2003 letter is such a blanket and prohibitive restriction imposed. Further, we have been presented with some evidence to support the Solicitor's position that the December 16, 2003 letter was not intended to bar you from the Tax Assessor's Office en toto. For instance, prior to your filing the instant complaint, a May 14, 2004 letter from the Solicitor's Secretary informed you that you should "feel free to contact Becky Lefebvre [the Tax Assessor] to pick up copies of the tapes and records that she has copied for you." In accordance with these instructions, you did retrieve these audio tapes as evidenced by the manila envelope submitted to this Department containing the audio tapes. This envelope is initialed by Ms. Black and indicates that on May 14, 2004 the envelope was "picked up at Barrington Town Hall from Tax Assessor." Had the Solicitor's letter been intended to prohibit your appearances in the Tax Assessor's Office en toto, we doubt that the Solicitor's Secretary would have advised you to contact the Tax Assessor to retrieve documents you had requested. A requirement that you submit your APRA requests in a manner that allows the Tax Assessor to attend to other municipal duties does not violate the APRA. [43]

Moreover, we do not believe that the Solicitor's admonition to submit your APRA requests in writing violated R.I. Gen. Laws § 38-2-3(c). First and foremost, this Department twice sought information from you directing our attention to the requests for "readily available" records that you allege were required to be submitted in writing. You did not direct our attention to any specific request, and instead, related that this Department should "review the complaint itself which lists the types of public records we are being, and have been, denied free access to." The complaint itself, however, does not provide us any information to find a violation. Specifically, among the documents contained within your complaint are requests for various audio tapes of Board meetings. Clearly, access to copies of these audio tapes, as you have requested, are not "readily available" records and the amount of search and retrieval time expended to make these records available to you supports this conclusion. Other non-readily available documented referenced within your complaint include individualized notices and decision letters. Based upon the foregoing, it is clear that not all the documents you have requested are "readily available," and that your assertion that "[a]s a practical matter, all public records to which we are entitled to have access should exist and be 'readily available'" is incorrect. Although this Department has never specifically examined the legislative intent behind this verbiage, based upon the context in which it is used, it is clear that the Legislature intended this phrase to apply to a small subset of documents, i.e, "documents prepared for or readily available to the public," R.I. Gen. Laws § 38-2-3(c)(emphasis added), and not the large mass of documents you seek to attribute its meaning. We find no violation.

We next address your remaining allegations. You contend that R.I. Gen. Laws § 38-2-3(c) was violated because no procedures were promulgated to ensure access to public records. (Allegation #182). The Tax Assessor responds that "established procedures" exist, but this Department has been provided no evidence of these procedures other than the representation that documents are provided in accordance with the APRA. Had it been the Legislature's desire that public bodies abide by the APRA without promulgating "procedures regarding access to public records," there would have been no need to enact R.I. Gen. Laws § 38-2-3(c). Accordingly, we find that the failure to establish additional procedures pursuant to R.I. Gen. Laws § 38-2-3(c) violated the APRA.

You also allege that the APRA was violated when the Board failed to provide copies of all recommendations provided by the Tax Assessor. (Allegation #186). You relate that during 2003, copies of written recommendations were provided by the Tax Assessor. Your April 23, 2004 APRA request sought copies of recommendations made "during the past year." In response to this allegation the Tax Assessor affirms that previous Boards requested written recommendations from her, but that the current Board "has not requested recommendations." Since there is no evidence that the Board maintains the written recommendations you seek, we find no violation. To the extent that you object to this practice as violative of R.I. Gen. Laws § 42-46-3, we find no evidence to support this allegation.

By letter dated July 3, 2004, you contend that the Town Council did not respond to your June 4, 2004 APRA request, and moreover, you also contend that the Town Council did not respond to your June 21, 2004 "Second Request." (Allegation #187-188). During our investigation of this matter, the Town did respond to your June 21, 2004 request by letter dated January 31, 2005. [44] Because there is no evidence that the Town responded in a timely manner, we find it violated the APRA.

Also by letter dated July 3, 2004, you allege that the Board violated R.I. Gen. Laws § 42-46-6(b)&(c) since the public notice for its June 29, 2004 meeting was inadequate by failing to identify the location of the meeting. As a result of this alleged inadequacy, you contend that the Board met at 6:30 pm in the hallway outside the Tax Assessor's Office, and then after conducting some business, reconvened to the Town Council Chambers where you expected the meeting to take place. You also relate that after entering the Town Hall on June 29, 2004, but before entering the Town Council Chambers, you inquired of a Board member whether the meeting was upstairs, whereupon you relate that this member indicated that "he guessed that it was."

In response, the Tax Assessor affirms that notice for the June 29, 2004 meeting "was posted that the Board was to meet in the Town Hall." The Tax Assessor continues that:

"[w]hen the Board arrived, the Town Council was meeting in Council Chambers where the Board meets. The Board announced that it was temporarily moving to the Tax Assessor's Office (it is not a hallway) and conducted the first part of its meeting there. Anyone was able to attend, and no one was barred from attending. After the Town Council had left Council Chambers, the Board resumed their meeting in Council Chambers."

Rhode Island General Laws § 42-46-6(b) provides that a public body shall post a supplemental public notice within a minimum of forty-eight hours before a meeting and that this notice must include, inter alia, the date, time, and place of the meeting. In this case, we have been provided a copy of the June 29, 2004 public notice. This notice indicates that the meeting would begin at 6:30 pm at "Town Hall" and would concern the appeals of two parties, and that at 7:00 pm, the Board would address the Blacks' appeal. Since the June 29, 2004 meeting was advertised, and convened, at the Town Hall, we find no violation. Moreover, we observe that in convening the meeting in the Tax Assessor's Office, rather than the apparent usual location of the Town Council Chambers, there is no evidence that the Board attempted to circumvent the OMA. Specifically, we observe that according to the Tax Assessor's affidavit, prior to convening in the Tax Assessor's Office, an announcement was made that the first part of the meeting would not take place in the Town Council Chambers and that this decision appears to have been made only because the Town Council Chambers were being used by the Town Council.

Although we find no violation, we do acknowledge your arguments to the contrary. For instance, you direct our attention to a June 11, 2004 letter you received from the Board indicating that your appeal would be heard on June 29, 2004, beginning at 7:00 pm, in the "Barrington Town Hall Council Chambers." Obviously, there is nothing misleading about this notice since the appeal of your tax assessment was indeed heard in the Town Hall Council Chambers beginning at or about 7:00 pm, but nevertheless you aver that based upon this individualized notice that you received "the inference to [you] was that the Board was meeting in the Council Chambers all evening beginning at 6:30 pm." Blacks' Letter dated July 3, 2004, p. 2-3. This inference is unwarranted since, for OMA purposes, it is the public notice that controls. Moreover, according to the OMA, personal notice is not even required. See R.I. Gen. Laws § 42-46-6.

Your complaint also contains an allegation that as you were climbing the stairs to enter the Town Council Chambers you had a chance encounter with a Board member who, in response to your inquiry concerning whether the meeting was upstairs in the Council Chambers, indicated that "he guessed it was." In response to this allegation, we received an affidavit from this Board member who indicated that he did not recall this encounter, but "[i]f [he] did state that the meeting was upstairs in Council Chambers, it was prior to [him] learning that the Chambers were occupied and that the meeting was going to commence downstairs." In our opinion, this Board member's representation seems to be consistent with the less than definitive response that you contend you received, which was that the Board member "guessed" the meeting was upstairs. Nevertheless, it is unnecessary for us to resolve this discrepancy because even if we assume that your version of events is correct, the actions of one Board member, as opposed to the actions of a majority of the Board members, does not implicate the OMA. See Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999).

Lastly, you contend that the Board violated the OMA by failing to maintain written minutes for its May 10, 2004 and June 29, 2004 Board meetings. (Allegation # 191-192). As we have already discussed, the Board acknowledges that it did not maintain written minutes and its failure to do so violated the OMA. [45]

III. Conclusion

Upon a finding that a complaint brought pursuant to the OMA is meritorious, the Attorney General may initiate suit in Superior Court. R.I. Gen. Laws § 42-46-8(a). There are two remedies available in suits filed under the OMA: (1) "[t]he court may issue injunctive relief and declare null and void any actions of a public body found to be in violation of [the OMA];" or (2) "the court may impose a civil fine not exceeding five thousand dollars ($5,000) against a public body or any of its members found to have committed a willful or knowing violation of [the OMA]." R.I. Gen. Laws § 42-46-8(d). Further, there are two remedies available under the APRA: (1) the Court may issue injunctive 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 R.I. Gen. Laws § 38-2-9.

Here, the Blacks have submitted evidence that they believe supports a finding of a willful and/or knowing violation. We have reviewed this evidence and do not find it persuasive. Instead, our decision is guided by the Supreme Court. In general, the Rhode Island Supreme Court has explained that "to act either 'knowingly' or 'wilfully' is to act voluntarily and intentionally, and not because of mistake or accident or other innocent reason." Carmody v. Rhode Island Conflict of Interest Commission, 509 A.2d 453, 459 (R.I. 1986). The Court elucidated, "the requirement that an act be 'knowingly and wilfully' committed refers only to the concept that there be 'specific intent' to perform the act itself, that is, that the act or omission constituting a violation of law must have been deliberate, as contrasted with an act that is the result of mistake, inadvertence, or accident." Id.

In DiPrete v. Morsilli, 635 A.2d 1155 (R.I. 1994), the Court revisited the knowing and willful standard. Citing its previous opinion in Carmody, the Court stated that:

when a violation of the statute is reasonable and made in good faith, it must be shown that the official 'either knew or showed reckless disregard for the question of whether the conduct was prohibited by [the] statute * * *. Consequently an official may escape liability when he or she acts in accordance with reason and in good faith. We have observed, however, that it is 'difficult to conceive of a violation that could be reasonable and in good faith.' In contrast, when the violative conduct is not reasonable, it must be shown that the official was 'cognizant of an appreciable possibility that he [might] be subject to the statutory requirements and [he] failed to take steps reasonably calculated to resolve the doubt. DiPrete, 635 A.2d at 1163-64.

A. The Open Meetings Act

With respect to the Board's failure to maintain minutes pursuant to the OMA for its December 16, 2003; January 20, 2004; January 28, 2004; February 3, 2004; February 10, 2004; March 16, 2004; May 10, 2004; June 29, 2004; and November 21, 2001 meetings, we find no evidence to support a willful or knowing violation. In particular, we observe the Tax Assessor's prior representation that it was her understanding that audio tape recordings of the meeting would suffice for minutes under the OMA, and although the Tax Assessor was correct for purposes of the APRA, she was incorrect for purposes of the OMA. Although legally incorrect, the Board's omission to maintain written minutes can hardly be considered a willful or knowing violation, particularly in light of the availability of audio recordings, which in many cases provided a more complete record of the Board's activities than written minutes maintained pursuant to R.I. Gen. Laws § 42-46-7(a). We also do not find the Blacks' argument that the Town's receipt of their June 4, 2004 complaint evinces that the Board's failure to maintain minutes for its June 29, 2004 meeting was willful or knowing. [46] Even assuming that a public body is on notice of its failure to comply with the OMA by virtue of a complaint, our records indicate that it was not until June 22, 2004 that this Department mailed its initial letter to the Town advising it of the Blacks' complaint. In our opinion, and with particular consideration to the volume of the Blacks' June 4, 2004 eighty-four page complaint, failing to maintain minutes for the Board's June 29, 2004 meeting does not evince a willful or knowing violation when the Solicitor was not notified of the Blacks' complaint until at least June 23, 2004. We also have no evidence that the Board willfully or knowingly violated the OMA by failing to post public notice of the three site visits at issue. In particular, we observe that all other meetings were properly posted.

B. The Access to Public Records Act

Next, we address the violations of the APRA's cost provisions wherein you were not provided one free hour of search and retrieval for your requests dated December 30, 2003, July 12, 2004, July 26, 2004, and of unknown date, but included in your complaint # 177. We find no willful and knowing violation here. In particular, as we already discussed, the APRA does not define what constitutes a "search and retrieval," and it was not until this finding that this Department examined this provision. Given the dearth of statutory and case law guidance, we do not believe this violation was willful and knowing. Similarly, we do not believe that the assessment of 3.15 hours for a search and retrieval, where our review found that the length of the audio recording was 2.75 hours for your July 12, 2004 request, was willful and knowing. We do, however, believe that you are entitled to reimbursement of $67.50, which represents four free hours of search and retrieval and a half hour related to your July 12, 2004 request.

Next, we address several matters relating to the Town's failure to provide timely and/or full access to requested documents. First, we address the Town's failure to provide a copy of the Board's Walsh decision, which was heard on February 3, 2004. We have no evidence that this omission was willful and knowing, and in particular note the Tax Assessor's affidavit, which states that to the best of her knowledge, all requested material was provided, and if the Walsh decision was not provided it was "an oversight." We also observe that of the numerous decision letters that were requested, the Walsh decision appears to be the only one not provided.

Second, we consider the Town's failure to respond to your APRA request dated April 22, 2004, and re-submitted or appealed, on May 10, 2004; as well as the Town's failure to respond timely to your APRA request dated June 4, 2004, and re-submitted or appealed, on June 21, 2004. In our opinion, the Town's justifications for these non-responses/untimely responses are unacceptable. For instance, the Town explained the non-response to your April 22, 2004 and May 10, 2004 correspondences was because these requests were in error since you already had these documents. Even more troubling to us are the events surrounding your June 4, 2004 and June 21, 2004 correspondences. By letter dated November 10, 2004, we were provided with an affidavit from the Town that indicated, but did not explain, that the June 4/June 21 request "could not be done prior to the elections." Finally, after about seven (7) months, by letter dated January 31, 2005, the Town responded to the Blacks' June 4/June 21 request. Although it appears that the Town's justification concerns the volume and size of APRA requests from the Blacks, as well as the availability of Town personnel, if we allowed these circumstances to excuse a seven (7) month delay in responding to a request, the APRA would be rendered nugatory. We find that the Town willfully and knowing violated the APRA with respect to these requests.

Third, we find no evidence to suggest that the Town willfully and knowingly violated the APRA by failing to comply with the requirements of R.I. Gen. Laws § 38-2-7 and by denying your August 18, 2003 request at that time. Specifically, we observe that the Tax Assessor was under the impression that the requested manual was not a public record, but later upon legal advice, provided you a copy of the manual binder. We have confirmed that you received a complete copy of this manual binder. Further, we believe the fact that you were not provided a complete copy of the "new cost rate tables, as well as the former tables (for all classifications of property, including commercial and residential)" is more the product of confusion concerning the documents you are seeking and the records maintained, as opposed to a willful and knowing intent to deny you records. In this vein, we observe that you have been provided many of these tables. Lastly, we do not believe that the failure to establish APRA procedures constitutes a willful and knowing violation.

Because we find that the Town has willfully and knowingly violated the APRA, it is our intention to seek further redress in the Superior Court. It is also our intention to seek other forms of relief to remedy the failure to maintain written minutes, the Town's overcharge of $ 67.50, the establishment of procedures pursuant to R.I. Gen. Laws § 38-2-3(c), the failure to provide a copy of the February 2, 2004 Walsh decision, and the failure to provide one page of the Town Council's minutes. We also believe that after appropriate consultation with the Town or its Solicitor concerning the precise records sought, the Blacks should be provided a complete copy of the manual or similar tables.

This finding serves as notice to the Town and the Board that the violations discussed herein are unlawful and future violations in similar circumstances may serve as evidence of a willful and/or knowing violation. Nothing within this finding should be seen as an endorsement by this Department of the Town's/Board's conduct. Instead, our role, as defined by the General Assembly, is limited to this Department's determination concerning whether the OMA and the APRA have been violated, and if so, whether such a violation was willful and/or knowing. This case should also serve as a reminder to all municipal legal counsel to ensure that all applicable governmental entities comply with the OMA or the APRA. Pursuant to R.I. Gen. Laws § 42-46-8, this finding serves as notice that we are closing our file as of the date of this finding.

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

Very truly yours,

Michael W. Field

Special Assistant Attorney General

MWF/cc

<<Return to part 1

[37] We recognize that this conclusion contradicts our finding in Calci v. Coventry Fire District, PR 03-24. Although Calci post-dated DARE by several months, our finding in Calci in no way examined or considered the Supreme Court's opinion in DARE. Accordingly, we do not believe it is controlling.

[38] Your October 7, 2004 correspondence supports our conclusion. In this letter, although you argued that no search and retrieval time should be assessed, you alternatively argued that if recording time was assessed, it "should be minimal." We note that there is no provision for a "minimal" assessment. If the assessment is determined to fall within the parameters of R.I. Gen. Laws § 38-2-4, a public body may assess a charge consistent with those provisions.

[39] In total, it appears you received 83 pages, although only 52 pages are attributable to the manual: pages 1-2 were the January 7, 2005 letter by the Tax Assessor responding to your request, page 3 was a field card for your property, pages 4-56 represented the manual, and pages 57-83 represented sales data for the Town of Barrington. Pursuant to your February 20, 2005 letter, you request that this Department address the Town's January 8, 2005 response to your December 20, 2004 letter. Because your December 20, 2004 letter is an application for appeal of your tax assessment, and not an APRA request, this Department has no jurisdiction to examine this complaint pursuant to the APRA.

[40] Since your January 13, 2005 letter asserted that you received the "tables," but that the "tables" did not constitute the entire manual, this Department initiated a series of telephone calls to you, eventually culminating in a January 31, 2005 letter, in an attempt to discern the basis for the conclusion that you had received some, but not all, of the manual. In particular, our January 31, 2005 letter stated "please indicate how many pages the manual consists of and how many pages you have been provided, if any." As an apparent result of the January 31, 2005 letter, you wrote to the Tax Assessor, with a copy of the letter to this Department. Your February 9, 2005 letter indicated that "Special Assistant Attorney General Michael W. Field has asked us some technical questions regarding your manual * * * which should properly be answered by you, as you have access to the information." Your February 9, 2005 letter then stated that this Department's "questions relate to the following information," which then delineated twenty-one (21) questions, nearly all of which this Department had not asked. This letter also indicated that upon the Tax Assessor's response, you would "share" this information with this Department. Although this Department expressed no opinion on whether or not the Tax Assessor should answer the twenty-one (21) questions set forth in your February 9, 2005 letter, by letter dated February 11, 2005, this Department made clear to both parties that "[i]n no way did this Department seek answers to the majority of the questions enumerated in [the Blacks'] February 9, 2005 letter." Notwithstanding the issue that, in our opinion, your February 9, 2005 letter may have left one with the impression that this Department sought answers to or otherwise endorsed the content of your February 9, 2005 letter, this Department did not seek answers to these questions from the Town, we sought answers from you and for a specific reason. Clearly, had this Department only sought the number of pages the manual contained, the Town would have this answer. This was not the purpose of our inquiry. Instead, having asserted in your January 13, 2005 letter that you received only part of the manual, this representation led us to believe that you must know or have some other basis for concluding that you did not receive the entire manual. The basis of this conclusion was the information that we sought and this information was available only from you. Although you never did answer how many pages you believe the manual consists of, you did provide the basis for your conclusion that you had not received the entire manual, which we discuss in the above text.

[41] See supra footnote 39.

[42] It should be noted that based upon our review, pages 11 and 34 of the January 8, 2005 response were indeed included in the February 6, 2004 response. Specifically, page 11 of the January 8, 2005 response appears on pages 44 and 45 of the February 6, 2004 response, and page 34 of the January 8, 2005 response appears on page 33 of the February 6, 2004 response. Also, page 16 of the January 8, 2005 response was provided in part. Specifically, although the narrative at the top of page 16 was not provided, the table at the bottom of page 16 appears on page 53 and 54 of the February 6, 2004 response. The other representations that you make are accurate.

[43] We observe that a requirement that a citizen tender APRA requests on a monthly basis violates the APRA. See Burns v. City of Providence Assessor's Office, PR 98-06. Despite the Solicitor's admonition, however, we have no evidence that the Blacks were actually denied timely access to public records. We arrive at this conclusion because although the Solicitor requested that you make monthly APRA requests, you apparently ignored this request, and the exhibits to your complaint, as well as other documents we have discovered, reveals that you made numerous APRA requests within a thirty day window. For instance, these requests are dated: April 22, 2004; April 23, 2004; May 10, 2004; May 18, 2004; June 4, 2004; June 21, 2004; July 12, 2004; July 12, 2004; July 26, 2004; and July 30, 2004.

[44] Although the Town provided documents responsive to your request, including page 65 of the Town Council's December 2001 minutes, you contend that you should have also been provided page 66, which was omitted. We agree.

[45] A February 20, 2005 letter advises this Department that on January 11, 2005, you requested documents and that on January 18, 2005, the Town extended the time to respond pursuant to R.I. Gen. Laws § 38-2-7(b). Because the time for the Town to respond had not elapsed prior to your February 20, 2005 letter, we are without jurisdiction to address this matter at this time. If the Town has not responded after the expiration of the thirty business day timeframe, you should feel free to file a complaint with this Department.

[46] The Blacks also contend that the submission of their June 4, 2004 complaint evinces that the Board's failure to maintain minutes for its May 10, 2004 meeting was willful or knowing. The timeline of events simply does not support this conclusion.