Rhode Island Advisory Opinions July 20, 2007: AGO PR 07-06 (July 20, 2007)

Rhode Island Attorney General Opinions

2007.

AGO PR 07-06.

Dear Mr. Prata:

The investigation into your Access to Public Records Act ("APRA") complaint is complete. You have filed two related complaints with this Department. In the first complaint, by letter dated August 21, 2006, you allege that the North Kingstown School Department violated the APRA by failing to timely respond and/or provide "public documents" that you requested. In connection with this request, you believe the School Department violated the APRA when it required you to fill out a particular form in order for the School Department to entertain your request(s). Second, by correspondence dated April 2, 2007, you allege that the School Department has refused to fulfill APRA requests because you refused to pay the approximately $200 due for the documents requested in August, 2006. You refuse to pay this fee, you state, because the documents were provided out of time.

Specifically, on August 3, 2006, upon direction by Maureen Buck, Director of Administrative Services, you indicate that you forwarded an email to Dr. James Halley, Superintendent of Schools requesting "all invoices associated with last year[']s (2005) administration retreat . INCLUDING alcohol and all other direct expenses [and] the summary of THIS year[']s expected expenses." (emphasis in original). On August 24, 2006, within an email to Dr. Halley in which you express dissatisfaction that records had not been timely provided, you made a request for purchase orders for the final two weeks of FY 2005-2006. By August 29th and September 5th emails to Dr. Halley, again reminding the School Department of your outstanding requests, you also specifically requested "all invoices and payments[/expenses] for the 2006 Summer NKSD Administration outing." In sum, you sought particular invoice and payment records for 2005 and 2006 Administrative outings and purchase orders for a specified time period for FY 2005-2006. You inform this Department, as you informed Dr. Halley at the time of the requests, that the information was sought for the purpose of analysis and review in advance of the upcoming elections in November, 2006.

You informed this office that as of September 15, 2006, the School Department provided you the "outing" records, but that the purchase order request remained unfulfilled. Further, you indicate that Dr. Halley, by email of September 15th, asked you to re-submit your prior request for purchase orders on the School Department's standard request form. A review of emails submitted to this office shows that on September 15, 2006, Dr. Halley wrote to you, stating, "I have no record of a purchase order request that you submitted? Please complete a copy of the form for requesting records under APRA. It is attached to this e-mail and can also be obtained from our web page. Either mail or deliver the request to this office for processing." You responded as follows: "Under State Law, I am not required to submit a paper for an APRA request. Further, you have received multiple requests for the last 2 weeks of purchase orders at the end of the least [sic] fiscal year 05/06. You are not in compliance with that request.."

In your second complaint to this office, you indicate that the School Department "has stopped fulfilling [your] APRA requests entirely" because you "did not pay over $200 dollars last October for a request that was so far overdue it would be of no use to me." You indicate that your very next records request, after the outing/purchase order request from August, 2006, "was a small one this winter [2007] for invoices containing video equipment. [The School Department] told me the documents were ready at the end of the deadline, but that I would have to buy the purchase orders for over $200 to get the new request (for which there would be no charge)." You represent that the School Department informed you that it had contacted legal counsel, "who said they could hold the documents for my ransom."

Your allegations have prompted this office to investigate three distinct issues. These issues are as follows: (1) the timeliness of production of the administrative retreat and purchase order documents, (2) the requirement that a particular APRA form be used for these APRA requests and (3) the practice of not fulfilling subsequent APRA requests when a contested invoice for previous APRA requests is outstanding.

This office received a response to your allegations from Vicki J. Bejma, attorney for the School Department. First, Attorney Bejma addresses the issue of timeliness of response to your August requests. Addressing first your August 3rd request, Attorney Bejma states that the School Department "appears to have experienced some breakdown in communications. However, it must be noted that the School Department substantially [complied] with the timelines in the Act." She notes that upon receipt of Mr. Prata's first APRA complaint, the School Department's former attorney, Kelly Fracassa, notified the Department of Attorney General by letter dated August 31, 2006, that Mr. Prata had apparently not forwarded his original request to Dr. Halley, but only Ms. Buck's response. Attorney Bejma states that "Dr. Halley appears not to have received the entire e-mail exchange between Mr. Prata and Ms. Buck, or simply failed to note the actual request contained further in the e-mail." Nevertheless, she continues, although "[a]dmittedly, the North Kingstown School Department did not strictly comply with the timelines set out in R.I.G.L. § 38-2-7[,]" "Dr. Halley promptly responded to Mr. Prata's renewed request of September 5, 2006[,]" and "Mr. Prata received his documents within 32 business days from his original request of July 31, 2006." Attorney Bejma submits that "this should be deemed an inadvertent, de minimus infraction."

As for the August 24th request for all purchase orders for the final two weeks of FY2005-2006, Attorney Bejma suggests that "the North Kingstown School Department appears to have experienced similar difficulties." Despite Mr. Prata's refusal to fill out the form that Dr. Halley asked him to submit, "Mr. Prata's request was fulfilled by September 26, 2006." Hence, Attorney Bejma continues, "although North Kingstown did not respond within the 10 business days, Mr. Prata still ultimately received the records within the time period allotted by statute[, or within 30 business days of his initial alleged request of August 24, 2006]." The School Department asks this office to consider in mitigation of any failure to comply with timelines the fact that by September 11, 2006, the School Department undertook voluntary remedial efforts by "promulgat[ing] a new set of procedures for submitting [APRA] requests." It provided for our review the standard form available on the school website, which, Attorney Bejma explains, the school implemented as its system of ensuring that email requests are not misdirected or misplaced. This standard form must be physically delivered to the School Department.

Attorney Bejma indicates that the School Department disagrees with Mr. Prata's assertion that requiring him to submit a particular form for an APRA request was a violation of the APRA. The School Department believes "the use of written requests is covered under R.I.G.L. § 38-2-3," which provides in pertinent part:

(c) Each 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.

Attorney Bejma argues that

"[t]his statute forbids public bodies from requiring written requests where the documents sought are rules and regulations of the public body, or the documents are '.prepared for or readily available to the public.'" She asserts that the School Department could require a written request because the documents requested "were not rules and regulations of the School Department [and they] were not of the sort prepared for or readily available for the public, such as school handbooks, budget presentation documents, calendar, and the like." Furthermore, Attorney Bejma asserts, nothing in this section [of the APRA] forbids the use of a particular form . [and] [s]aid forms are a helpful tool in ensuring the free flow of information, in that they help the public body ascertain precisely what it is the requester is seeking."

In response to your final allegation regarding the refusal of records for non-payment, Attorney Bejma notes that the APRA "does not specifically prohibit public bodies from denying requests for documents when the party making the request has failed to pay for earlier requests." She continues: "Nevertheless, we do recognize that such a prohibition may not fully comport with the spirit of the Act. Therefore, this office has advised the North Kingstown School Department to cease and desist from denying . requests based on non-payment."

The APRA states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or to copy such records. See R.I. Gen. Laws § 38-2-3(a). To effectuate this mandate, the APRA provides strict procedural requirements governing the time and means by which a request for records is to be processed. Upon receipt of a records request, a public body is obligated to respond in some capacity within ten (10) business days, either by producing responsive documents, denying the request with a reason(s), or extending the time period necessary to comply. See R.I. Gen. Laws § 38-2-7. Also, the "[f]ailure to comply with a request to inspect or copy the public record within the ten (10) business day period shall be deemed to be a denial." Id. If a public body needs additional time to respond to an APRA request, the APRA provides that a public body, "for good cause," may extend the response time an additional twenty (20) business days to a total of thirty (30) business days. R.I. Gen. Laws § 38-2-7(b). See Young v. Rhode Island Department of Environmental Management, PR 07-03.

Based on the evidence presented, including the School Department's admissions, we conclude that the School Department violated the APRA by failing to comply with your APRA requests within ten (10) business days. We find that by email dated August 3, 2006, you made a straightforward request for invoices directly to Dr. Halley, Superintendent of Schools, upon direction by Ms. Buck of the School Department. Responsive records were not provided to you until mid-September. Although we recognize that production of these records may have occurred just outside thirty (30) business days from the time of request, we have been presented no reason that additional time for "good cause" was required. Further, no extension of time was requested, despite the continued back and forth email correspondence that occurred between you and Dr. Halley after the original request was made. In fact, the School Department's position that documents were provided shortly after the expiration of the thirty (30) day period seems to suggest that the School Department missed complying with the APRA by only 2 days. To the extent the School Department makes this argument, we reject it as it would eviscerate the APRA's ten (10) day requirement.

We likewise find that your August 24, 2006 request for purchase orders was not timely provided. The evidence shows that you did not receive these records until, at the earliest, on or around October 11, 2006. We do not regard these delays as an "inadvertent, de minimus infraction," see Bejma response, and we distinguish this case from instances where we have found excusable, de minimus delays. See NEARI v. East Greenwich School Department, PR 03-25 (one day past the ten day deadline was de minimus delay with good cause). A review of the emails from Dr. Halley reveals that the School Department several times denied receipt of your request and/or attempted to make you re-request the documents. (see September 15, 2006 email from Dr. Halley to Mr. Prata). Moreover, this office has previously warned the North Kingstown School Department, at the time also represented by Dr. Halley, that the lack of response and/or untimely response to an email APRA request was a violation of the APRA. See Mudge v. North Kingstown School Department (2), PR 05-04.

With regard to the August 24, 2006 request for purchase orders, we acknowledge the School Department's assertion that because it recognized that requests by email are prone to being "misdirected or misplaced," "no later than September 11, 2006, the North Kingstown School Department itself . undertook voluntary remedial effort .[by] promulgat[ing] a new set of procedures for submitting these requests." In response to Mr. Prata's request for purchase orders, on September 15th Dr. Halley requested that the school's standard request form be utilized. In Mudge v. North Kingstown School Department (2), PR 05-04, this office acknowledged the same difficultly with email requests, stating the following: "We note that the request was made by way of an email, which arguably lends itself to being misplaced amongst the steady stream of other incoming messages and is perhaps a less formal means by which to make a request." At the time of that 2005 finding, we recognized that the APRA did not dictate the method by which to make a request, however, we found email an acceptable means by which to make an APRA request based on a lack of evidence that the "school committee implemented a specific method by which APRA requests must be made. See R.I. Gen. Laws § 38-2-3(c)." Id. In this case, although we believe the School Department was well intentioned and prudent to implement a standardized request procedure, see Newport Police Department, ADV PR 99-03, this procedure was implemented too late to remedy or excuse the failures in responding to Mr. Prata's requests. According to Attorney Bejma, the APRA request form was implemented "no later than September 11, 2006." Mr. Prata's requests, however, predate this implementation. Therefore, Mr. Prata's email requests should have been timely responded to, and the September 15, 2006 suggestion by Dr. Halley that Mr. Prata re-request by use of this form was inappropriate. Mr. Prata could not have been on notice of the new procedure at the time of his August requests, and the requisite ten (10) business day response time was in effect regardless of a new procedure that the School Department attempted to retroactively implement.

We also find that the School Department violated the APRA when it withheld records from Mr. Prata based on its assertion that Mr. Prata owed money for a previous records request. Although the School Department's reversal of its position on this matter makes extended discussion unnecessary, we simply note that in this particular instance, the withholding of records was particularly egregious in light of fact that the billed-for records were made available after the statutorily required time frame had passed.

Upon a finding that a complaint brought pursuant to the APRA is meritorious, the Attorney General may initiate suit in Superior Court. R.I. Gen. Laws § 38-2-9. There are two remedies available in suits filed under the APRA: (1) "[t]he court shall impose a civil fine not exceeding one thousand dollars ($1,000) against a public body or official found to have committed a knowing and willful violation" or (2) the court may enter injunctive or declaratory relief. R.I. Gen. Laws § 38-2-9.

At this time, we do not believe Superior Court action would be appropriate in the instant matter. We note that the invoice records that were untimely provided to Mr. Prata were ultimately made available. Further, we note that the purchase order documents, also untimely offered, are no longer relevant to the purpose for which Mr. Prata sought them in the first place. To the extent that the purchase order documents are still of interest to Mr. Prata, the School Department should provide these records, if it has not already done so, at no cost to Mr. Prata. Likewise, the School Department shall provide the video equipment invoice records later requested by Mr. Prata at no cost to him, if it has not already done so. The School Department shall no longer consider Mr. Prata in arrears with the outstanding bill from his August, 2006, purchase order request. Based on Attorney Bejma's representations, we understand that the School Department has ceased its practice of withholding records owing to past contested APRA bills. Further, we rely on the School Department's assurance that it has implemented a procedure for the public to make APRA requests, and that this standardized form is readily available on the School Department's website. Lastly, we recognize that Dr. Halley is no longer Superintendent of Schools. Notwithstanding, this office reserves the right to take additional action against the School Committee if the above mentioned remedial actions have not been implemented. We caution the School Department that findings of future APRA violations may be considered willful or knowing.

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

Very truly yours,

Christy Hetherington

Special Assistant Attorney General

Extension 2425

CH/pl

cc: Vicki J. Bejma, Esq.