Rhode Island Advisory Opinions December 31, 2018: AGO PR 18-38 (December 31, 2018)

Advisory Opinion Text

William M. Dolan, Esq.

William K. Wray, Jr., Esq.

Peter F. Kilmartin, Attorney General

Mr. Edwin M. Larkin, Esq. Chief Litigation Counsel GateHouse Media, LLC

Mr. Mark W. Freel, Esq. Locke Lord, LLP One Financial Plaza

Re: The Providence Journal v. Rhode Island Secretary of State

Dear Attorneys Larkin and Freel:

The investigation into your Access to Public Records Act ("APRA") complaint filed on behalf of The Providence Journal against the Rhode Island Secretary of State ("SOS") is complete.

On October 29, 2018, a reporter with The Providence Journal made an APRA request to the SOS seeking "[a] copy of the database of all voters currently registered in Rhode Island, including the so-called voter file and voter history file." Numerous categories of information were expressly requested including "date of birth, including month, day and year[.]"

The SOS responded to the APRA request on November 20, 2018, stating, in pertinent part:

"Your request seeks information of a personal and private nature for registered Rhode Island voters. Specifically, you requested the full day, month and year of birth for all seven hundred and ninety thousand registered voters in the database.

As a threshold matter, kindly be advised that R.I. Gen. Laws § 17-6-5(b) explicitly addresses the form and required content of voter registration lists[.] *** Nothing in the statute requires the inclusion of the full birth day, month and year of each registrant or a voter history file[.] ***

[Voters' birth dates] remain subject to the exceptions contained in the overarching requirements contained in the Rhode Island Access to Public Records Act, which expressly excludes from the definitions of a public record: '. . . [p]ersonnel and other personal individually identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et seq.' R.I. Gen. Laws § 38-2-2(4)(A)(i)(b).

***

While I am mindful that copies of the complete voter file may have previously included full dates of birth in the past, we are living in a whole new technological era. Identity theft is a very real concern for many Rhode Islanders who have made it clear to me that they are not comfortable with the disclosure of their full name, full address and full date of birth as part of a bulk electronic and searchable data transfer. The foregoing authorities and the very real technological concerns of identity theft for those Rhode Islanders counsel very strongly in favor of the protection of their privacy. ***

I will continue to uphold our policy of limiting bulk distribution of voter records birth information to year of birth to protect Rhode Islanders from an unwarranted invasion of their privacy and the consequent possibility of identity theft."

Mr. Larkin filed the instant APRA Complaint on behalf of The Providence Journal on December 12, 2018, alleging, in relevant part:

"As a threshold matter, Secretary Gorbea's reliance on R.I. Gen. Law[s] § 17-6-5(b) is misplaced. *** While § 17-6-5(b) limits the voter information provided as part of those annual lists, it has no bearing on the public's right of access to voter information pursuant to APRA. Indeed, it is well-settled that voter registration lists are public records subject to disclosure under public access legislation. See U.S. Dep't. Of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 500, 114 S. Ct. 1006, 127 L. Ed. 2d 325 (1994) (recognizing that voter registration lists are publicly available documents); Walke v. Cullen, 491 F. App'x. 273, 275 (3d Cir. July 2, 2012) (stating that voter registration record is a public record). *** Put simply, the fact that an entirely separate statute limits what voter information the Secretary of State's office provides annually for political purposes is of no moment here.

***

[C]ourts will apply a personal privacy exemption only where the records sought contain 'intimate details' and 'highly personal' information. Providence Journal Co. v. Kane, 577 A.2d 661, 663 (R.I. 1990) *** As the United States Supreme Court has made clear, '[information such as place of birth, date of birth, date of marriage, employment history, and comparable data is not normally regarded as highly personal[.]' United States Dep't. of State v. Washington Post Co., 456 U.S. 595, 600 (1982)[.] ***

To be sure, because the privacy exemption (in both APRA and FOIA) only exempts from disclosure information that constitutes a 'clearly unwarranted' invasion of privacy, the balance of interests must weigh in favor of disclosure and the agency invoking the exemption has a 'heavy burden.' See, e.g. , Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1128 (D.C. Cir. 2007). Here, Secretary Gorbea points to no evidence that disclosure of voters' full dates of birth would be offensive to a reasonable person or would cause harm. Instead, the Secretary takes the tenuous position that dates of birth may be used to facilitate identity theft. *** The Newspaper appreciates Secretary Gorbea's focus on identity theft issues but submits that her concern is both speculative and overstated with respect to dates of birth. Notably in this regard, while the Rhode Island Identity Theft Protection Act seeks to protect sensitive 'personal information' from use in identity theft, it does not include dates of birth (alone or together with other identifying information) as 'personal information' in need of protection. See R.I. Gen. Law[s] § 11-49.3-3(a)(8).

Finally, even if- contrary to the legal authority presented above - full dates of birth somehow trigger an APRA exemption, that exemption has been waived because the information has already been made publicly available via Secretary Gorbea's directive to make full voter files, including full dates of birth, available to the public via terminals located at the Department of State's Elections Division. *** It is long established as a canon of public access that when information is already public, the proverbial cat has been let out of the bag and a claim for invasion of privacy cannot be maintained. Tarzia v. State, 44 A.3d 1245, 1259 (2012). In fact, in interpreting APRA, the First Circuit has held that there is no expectation of privacy with respect to information already in the public domain. Hatch v. Town of Middletown, 311 F.3d 83, 91 (1st Cir. 2002).

For the foregoing reasons, we respectfully request that your office institute a proceeding challenging Secretary Gorbea's denial of the Newspaper's Request."

In response to your complaint, this Department received a substantive response from SOS legal counsel William M. Dolan III, Esquire. In his response, Attorney Dolan states, in pertinent part:

"A mass, digitized, searchable database containing every voter's full date of birth in conjunction with other personally-identifying information is not a public record because the release of that record poses an unwarranted invasion of personal privacy for the voters whose birthdates are disclosed. ***

A voter's exact birth date, particularly when aggregated with the birthdates of many other voters or with other publicly available personal information about that voter, poses a serious threat of identity theft. ***

Reported court decisions expressly recognize that birth dates can be used to facilitate identity theft. See True the Vote v. Hosemann, 43 F. Supp. 3d 693, 738 (S.D. Miss. 2014) (identity theft 'is fueled by the disclosure ... of personal information such as birthdates'); Tex. Comptroller of Pub. Accounts v. Attorney General of Texas, 354 S.W.3d 336 at 345 (Tex. 2010) ('[birth]dates, when combined with name and place of birth, can reveal social security numbers'); Data Tree, LLC v. Meek, 109 P.3d 1226 at 1238 (birthdate and mother's maiden names 'are often used as identifiers for financial accounts or for obtaining access to electronic commerce'); Hearst Corp. v. State of New York, 24 Misc. 3d 611 at 625-29 (N.Y. Misc. 2009) ('it is by now well established that the disclosure of an individual's full birth date, taken together with his or her full name and the details of employment, can be used to facilitate identity theft, thereby resulting in both economic and personal hardship to individuals').

***

In sum, the release of the requested information in the specific form requested by Mr. Parker poses a real threat to the privacy of the individuals whose exact birth date would be revealed in conjunction with other personally-identifiable information. In contrast, Mr. Parker is able [to] resolve any doubts he might have by manually viewing full dates of birth at any local board of canvasssers office or the Department of State Elections Division. ***

Mr. Parker has indicated that exact birth dates might be useful to ensure that one individual is not registered to vote in more than one location. *** Current analysis of the database shows that only 0.5% of the records show [the] same first name, last name and date of birth. The Secretary of State has made provisions to allow members of the public, including Mr. Parker to resolve questions on those records by viewing the data in a stand alone terminal in the Department of State Elections Division. Mr. Parker and other members of the public should be able to monitor the Secretary of State's performance by analyzing the remaining 99.5% of the records. In short, there is no justification for releasing the personal information of the other 99.5% of voters in a digital format that infringes on the privacy of Rhode Islanders."

Mr. Freel provided a rebuttal stating, in relevant part:

"Full dates of birth are one of the few pieces of data that allow the Secretary or any other members of the public to assess and determine the extent of any possible fraud, duplication or outdated information in the voter registration database maintained by that office. *** Accordingly, the Journal's request for dates of birth does indeed relate directly to the Secretary's performance of her office's statutory duties and obligations. ***

Construing the[] provisions of the [National Voter Registration Act, 25 U.S.C. § 20501, et sea, ('NVRA')], the U.S. Court of Appeals for the Fourth Circuit has observed that' [s]tate officials labor under a duty of accountability to the public in ensuring that voter lists include eligible voters and exclude ineligible ones in the most accurate manner possible. *** ' Project Vote/Voting for Am., Inc. v. Long , 682 F.3d 331, 339 (4th Cir. 2012)[.] *** [T]he Fourth Circuit held that dates of birth were 'subject to disclosure under the NVRA, as they are unquestionably 'records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters." Project Vote/Voting, 682 F.3d at 340."

In examining whether a violation of the APRA has occurred, we are mindful that our mandate is not to substitute this Department's independent judgment concerning whether an infraction has occurred, but, instead, to interpret and enforce the APRA as the General Assembly has written this law and as the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutory mandate is limited to determining whether the SOS violated the APRA. See R.I. Gen. Laws § 38-2-8.

I. R.I. Gen. Laws § 17-6-5

We begin by addressing your disagreement with the SOS's citation to R.I. Gen. Laws § 17-6-5(b). You claim that the SOS's "reliance" on this provision is "misplaced" as the statute "has no bearing on the public's right of access to voter information pursuant to APRA." You additionally assert "the fact that an entirely separate statute [i.e., RI. Gen. Laws § 17-6-5] limits what voter information the Secretary of State's office provides annually for political purposes is of no moment here." However, you do not provide any explanation or argument for these contentions. Respectfully, we disagree.

Rhode Island General Laws § 17-6-5 provides, in relevant part:

"(a) Upon application in writing, the secretary of state shall, upon request, furnish prepaid at a reasonable price to be established annually by the secretary and at a reasonable time , to the state chairperson of each political party and to each person proposing to be a duly qualified candidate for state or congressional office and to no one else except as provided in this chapter, lists of registered voters as they appear in the central voter registry of each city or town or of each senatorial or representative district, or of each congressional district.

(b) These lists, so furnished, shall be used by the chairpersons for political purposes, or by the candidates only in the furtherance of candidacy for political office in the ensuing primary and/or general election and for no other purpose . The information available for each registrant shall consist only of the name, designation of party affiliation, street address, city or town, congressional district, senatorial district, representative district, ward, and/or precinct and nothing else ." (Emphases added).

The SOS cited the above provision to note that R.I. Gen. Laws § 17-6-5 does not provide an independent legal authority mandating disclosure of voters' dates of birth. We concur, observing that the statute grants and limits access to voter registration information in a strictly circumscribed manner. The statute requires disclosure of certain voter information to "the state chairperson of each political party and to each person proposing to be a duly qualified candidate for state or congressional office and to no one else [.]" R.I. Gen. Laws § 17-6-5(a) (emphasis added). The statute limits the information that can be provided to those identified, specifically excluding voters' dates of birth. See R.I. Gen. Laws § 17-6-5 (b) (listing available information and concluding "and nothing else"). By providing access to enumerated information to certain listed individuals, and by explicitly prohibiting disclosure to other non-enumerated persons and of non-enumerated information (such as voters' dates of birth), there is at least the suggestion that R.I. Gen. Laws § 17-6-5 affirmatively prohibits the disclosure of voters' dates of birth to the public. After all, if such information were intended to be available to the public at-large through APRA, there would be little reason to limit disclosure of voter registration records to certain information and to certain persons through RI. Gen. Laws § 17-6-5.

Additionally, although you maintain that R.I. Gen. Laws § 17-6-5 is "an entirely separate statute[,]" this contention seems to conflict with RI. Gen. Laws § 38-2-2(4)(S), which provides for nondisclosure of "[r]ecords *** required to be kept confidential by *** state law[.]" Consistent with Rhode Island Supreme Court precedent, the more specific statute - R.I. Gen. Laws § 17-6-5 - controls over the more general statute - the APRA. See Blanchette v. Stone , 591 A.2d 785, 787 (R.I. 1991) (holding that when statutes conflict, "the special provision must prevail over the general provision"). At least for the immediate purposes, it is sufficient for us to conclude that, as the SOS maintains, R.I. Gen. Laws § 17-6-5 does not mandate disclosure of voters' dates of birth.

II. R.I. Gen. Laws § 38-2-2(4)(A)(I)(b)

You maintain that the SOS has waived the asserted APRA exemption because the information is already publicly available at terminals located at the Department of State's Elections Division. In support, you cite Tarzia v. State . 44 A.3d 1245, 1259 (RI. 2012) and Hatch v. Town of Middletowm 311 F.3d 83, 91 (1st Cir. 2002). Precedent from the United States and Rhode Island Supreme Courts fail to support this position.

The United States Supreme Court has held that "[a]n individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form." FLRA, 510 U.S. at 500; see also Rugiero v. United States Department of Justice , 257 F.3d 534,550 (6th Cir. 2001) ("A clear privacy interest exists with respect to such information as names, addresses, and other identifying information even where such information is already publicly available") (citations omitted). Our Supreme Court held similarly just two years ago. See Providence Journal Co. v. R.I. Dept. of Pub. Safety ex rel. Kilmartin , 136 A.3d 1168, 1175 (RI. 2016) ('"[T]he 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.'") (quoting United States Dept. of Justice v. Reporters Committee for Freedom of the Press , 489 U.S. 749, 770 (1989) (internal quotations omitted)).

The issue of waiver under the APRA was addressed even more squarely by then-Superior Court Justice Indeglia in Fuka v. R.I. Dept. of Environmental Management , 2007 WL 1234484, PC-2007-1050 (April 17, 2007). There, the requesters sought information from the Department of Environmental Management ("DEM") on all fisherman and fish dealer licenses on record, including their home addresses. After DEM withheld the information, the requesters argued that "since DEM has previously disseminated the same information, to wit, the addresses, the agency has waived its ability to withhold the same information from them." Id The Superior Court soundly rejected this contention: "[information that is considered to be private does not lose that status or character just by being placed in the public domain at one time." Id (citations omitted). Further:

"[i]n the opinion of this Court, the previous disclosures have no bearing on the level of privacy normally associated with the licensees' home addresses. Simply because the DEM has previously released this information does not strip the licensees of the privacy protections normally afforded to such information." Id.

Consistent with this substantial precedent, we do not find that the disclosure of any voters' dates of birth waives the SOS's ability to withhold them in this context. See Reporters Comm. , 489 U.S. at 770 ("In sum, 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.'") (quoting Rehnquist, William, "Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?" Nelson Timothy Stephens Lectures, University of Kansas Law School, pt. 1, p. 13 (Sept. 26-27, 1974)). While prior disclosure in certain circumstances may diminish the privacy interest somewhat, the SOS's offer here to make the information available at a kiosk is different in kind from providing information for 790,000 Rhode Islanders in a searchable and portable electronic format. And, while we have no reason to believe that The Providence Journal seeks these records for improper purposes, we emphasize that records deemed "public" under the APRA are public to all persons regardless of their motives, including those incarcerated for identity theft crimes. See R.I. Gen. Laws § 38-2-3G).

As a final matter on this waiver issue, we note that Tarzia and Hatch are of little utility to the matter at hand as both cases concern alleged privacy torts. In Tarzia , the Rhode Island Supreme Court found no invasion of privacy where the allegedly private fact was already published. Tarzia , 44 A.3d at 1259. In Hatch , the First Circuit similarly found no privacy tort where the document had been previously released to the media. Hatch , 311 F.3d at 91. Neither Court opined on the viability of an asserted APRA exemption if the information is public through other means and neither Court examined the precise issue we must face, i.e., the balancing of public and privacy interests. Accordingly, we do not find that the SOS has waived any assertion of R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).

We turn then to the SOS's stated reason for nondisclosure: R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). The APRA's stated purpose is both "to facilitate public access to public records" and "to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy." R.I. Gen. Laws § 38-2-1. Similarly, the United States Supreme Court has made clear that the federal Freedom of Information Act ("FOIA"), and by extension the APRA:

"focuses on the citizens' right to be informed about 'what their government is up to.' Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about the agency's own conduct ." United States Dept. of Justice v. Reporters Committee for Freedom of the Press , 489 U.S. 749, 773 (1989) (emphases added).

The Court further explained that:

"the FOIA's central purpose 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. Thus, it should come as no surprise that in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a FOIA request for information about a particular private citizen." Id . at 774-75 (emphases in original).

The Supreme Court continued:

"When the subject of [the requested document] is a private citizen and when the information is in the Government's control as a compilation, rather than as a record of 'what the Government is up to,' the privacy interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public interest in disclosure is at its nadir." Id at 780.

Indeed, the Supreme Court has subsequently noted that "the only relevant public interest in disclosure to be weighed in this balance is the extent to which disclosure would serve the core purpose of the FOIA, which is contribut[ing] significantly to public understanding of the operations or activities of the government. " FLRA, 510 U.S. at 495 (internal quotations omitted) (emphasis in original).

As noted supra , the SOS bases its nondisclosure on R.I. Gen. Laws § 38-2-2(4)(A)(I)(b), which exempts from public disclosure, in pertinent part:

"Personnel and other personal individually-identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. 552 et seq. ... [.]" (Emphasis added).

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 records, in whole or in part, "would constitute a clearly unwarranted invasion of personal privacy[.]" R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).

The United States Supreme Court relied on House and Senate Reports to interpret the above emphasized phrase, which also appears in the FOIA. See Department of Air Force v. Rose , 425 U.S. 352, 355-57 (1976). The House report stated that "[t]he limitation of a 'clearly unwarranted invasion of privacy' provides a proper balance between the protection of an individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual." See id. at 373 (emphasis added). Similarly, with respect to a "clearly unwarranted invasion of privacy," the Senate report weighed the "interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information." See id. The Supreme Court thus determined that the legislative intent promulgated a balancing test between the individual's privacy interests and the public's right to disclosure.

The United States Supreme Court conducted such a balancing test in National Archives and Records Administration v. Favish , 541 U.S. 157, 171-75 (2004). In considering the application of the relevant FOIA provision requiring the balancing of public and privacy interests, the Supreme Court explained:

"[T]he usual rule that the citizen need not offer a reason for requesting the information must be inapplicable. ***

First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted." Id. at 172.

The Supreme Court further noted that "where the subject of the documents 'is a private citizen,' 'the privacy interest *** is at its apex.'" Id . (quoting Reporters Comm, . 489 U.S. at 780).

In Providence Journal Co. v. R.I. Dept. of Pub. Safety ex rel. Kilmartin, 136 A.3d 1168, 1175 (R.I. 2016), the Rhode Island Supreme Court expressly adopted Favish's scheme and "place[d] the same gloss upon the APRA." Agreeing with the United States Supreme Court, our Supreme Court held that "to effect the balance of privacy interest against the public interest in disclosure and to give practical meaning to the exemption, the usual rule that the citizen need not offer a reason for requesting the information must be inapplicable." Id . (internal quotations and brackets omitted).

Thus, our Supreme Court examined The Providence Journal's stated public interest to uncover whether '"the investigative agency or other responsible officials acted negligently or otherwise improperly in the performance of their duties.'" Id . (quoting Favish , 541 U.S. at 173). In so doing, the Court observed that '"there is a presumption of legitimacy accorded to the Government's official conduct * * * [and] where the presumption is applicable, clear evidence is usually required to displace it.'" Id . at 1176 (quoting Favish , 541 U.S. at 174). Applying these principles, our Supreme Court determined that "the Journal has not pointed to a shred of evidence to suggest" government negligence or malfeasance "other than to speculate as to the mere possibility that some venality or irregularity may have occurred in the investigation[.]" Id . at 1177. As such, this "tenuous 'public interest' is insufficient to mandate disclosure under the Favish standard that we today adopt thereby imbue upon the APRA." Id.

Against this considerable legal backdrop, your Complaint falls short of the requirements contained in Providence Journal Co. Most notably, the Favish gloss that our Supreme Court applied to the APRA is unsubstantiated in your analysis; we note that neither the APRA request nor your Complaint contain any indication of the asserted public interest, how disclosure would advance any public interest, or raised NVRA, which Mr. Freel suggests requires disclosure. To be sure, your rebuttal raised these issues - for the first time - but as explained in our December 12, 2018 acknowledgment letter to you, "[y]our rebuttal should be limited to the matters addressed in the SOS's response and should not raise new issues that were not presented in your complaint[.]"

Even assuming these issues were raised in your original complaint, a more fundamental issue concerns our scope of review. As we noted, supra , our statutory obligation is to determine whether the SOS violated the APRA. See R.I. Gen. Laws § 38-2-8. As then-Judge Ginsburg explained:

"[c]ourts reviewing an agency's action must of necessity limit the scope of their inquiry to an appropriate time frame. In FOIA cases particularly, court review properly focuses on the time the determination to withhold is made ." Bonner v. United States Department of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (Ginsburg, J.) (emphasis added).

Here, based upon the record we have been provided, none of the above rebuttal arguments were presented to the SOS; as such, none of these rebuttal arguments could have been considered by the SOS in balancing the competing interests.

Even if such public interest arguments were presented to the SOS, we have little trouble finding that when balancing the competing public and privacy interests, your request is overbroad to advance the public interest asserted. To explain, the APRA mandates a requesting party in these circumstances to assert '"that the public interest sought to be advanced is a significant one'" and that '"the information is likely to advance that interest.'" Providence Journal Co. , 136 A.3d at 1175 (quoting Favish , 541 U.S. at 172). In your rebuttal you assert, for the first time, that the public interest in disclosure of the voters' full dates of birth is to evaluate how the SOS maintains the state's voter list.

As a general matter, information that furthers government accountability implicates a significant public interest in that it permits the public to know what the government "is up to." See Reporters Comm. , 489 U.S. at 773; see also Favish , 541 U.S. at 172. However, you have not produced any evidence here that the SOS's maintenance of the state's voter list has been negligent or otherwise improper. Under controlling Rhode Island Supreme Court precedent under these circumstances one must '"establish more than a bare suspicion in order to obtain disclosure.'" Providence Journal Co., 136 A.3d at 1175 (quoting Favish , 541 U.S. at 172). The Court has instructed in these circumstances, '"the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.'" Id . (quoting Favish , 541 U.S. at 172). Respectfully, we conclude that you have not met this burden here.

Further, we find little evidence that the specific information requested here - the days and months of a voter's date of birth - would sufficiently advance the ability of the public to know more about the SOS's operations or otherwise advance a public interest. See FLRA , 510 U.S. at 495. Certainly, you have not made any argument on this point. As the SOS noted, only 0.5% of the nearly 790,000 voter records share the same full name and year of birth. Disclosure of the birth year alone thus reveals unique information on 99.5% of the records, yet your APRA request encompasses these records. In other words, even under a generously-applied public interest, 99.5% of the records you seek do not advance a public interest.

Federal case law supports this conclusion. In Havemann v. Colvin , 537 Fed.Appx. 142 (4th Cir. 2013), the requester sought information from the Social Security Administration ("SSA") that included the full dates of birth of various private individuals. Similar to the SOS's actions here, the SSA withheld the months and days of the dates of birth (but not the years) on the grounds that disclosure could identify living individuals and impair their privacy interests. Id . at 147. In upholding this decision, the Fourth Circuit noted that the requester's stated public interest - the intent to evaluate various SSA programs - was not furthered by the presence or absence of full dates of birth: "the SSA has explained that [the requester] can achieve nearly 100% accuracy on eligibility determinations with access simply to the year of birth. Thus, it is unclear how access to the month and day of beneficiaries' birth will assist [the requester] in any significant way." Id . at 148. As such, the Fourth Circuit concluded that:

"[W]e are convinced that any interest the public may have in the withheld data is sufficiently outweighed by the privacy interests that would be compromised by such disclosure. The public's interest in disclosure of the withheld data is negligible at best. The SSA has provided significant details for more than 140 million individuals, and such details appear sufficient to allow [the requester] to conduct his analysis. To the extent that they are lacking, we do not believe that the marginal gains ostensibly possible through further disclosure are worth the burdens that will likely result to beneficiaries' privacy interests." Id .

Other federal courts have similarly found that disclosure of individuals' full dates of birth insufficiently furthers a public interest. See Kim v. United States Dept. of the Interior , 859 F. Supp. 2d 13, 20 n.3 (D.D.C. 2012) (agreeing in dicta with argument that disclosure of dates of birth of individuals who had completed intake forms does not adequately shed light on government operations); see also Schiller v. I.N.S. , 205 F.Supp. 2d 648, 661 (W.D. Tex. 2002) (concurring with argument that disclosure of names and dates of birth of arrested individuals does not provide information on the agency's conduct).

In sum, while we do not foreclose that full dates of birth could significantly advance an asserted public interest on the appropriate record, here, there is, at best, a minimum public interest in the disclosure of all 790,000 voters' full dates of birth, particularly when only 0.5% of these records contain duplicative dates of birth. And, in this respect, Mr. Freel makes clear that the issue before this Department is the "full access to all requested voter registration records." (Emphasis in original).

With respect to the privacy interest, we begin by addressing your position that dates of birth are insufficiently private. In particular, you emphasize the Supreme Court's statement in United States Pent, of State v. Washington Post Co., 456 U.S. 595, 600 (1982) that "[i]nformation such as place of birth, date of birth, *** and comparable data is not normally regarded as highly personal[.]" Id . at 600. You further note that the Rhode Island Supreme Court has stated that the APRA is '"designed to protect from public disclosure information which is highly personal and intimate in nature.'" Providence Journal Co. v. Kane , 577 A.2d 661, 663 (R.I. 1990) (quoting Pawtucket Teachers Alliance v. Brady , 556 A.2d 556, 559 (R.I. 1989). Accordingly, you insist that the privacy exemption is inapplicable here.

However, we cast doubt on Washington Post Co. 's relevance here; the statement attributed to Washington Post Co. to support your argument comes in the context of a broader point that information contained in "personnel" or "medical" files such as dates of birth - even though perhaps not "highly personal" out of context - would, in fact, be exempt from any disclosure that would constitute a clearly unwarranted invasion of personal privacy. Id . at 600.

You further point to the Rhode Island Identity Theft Protection Act and the fact that it does not include dates of birth in its definition of "personal information" to assert that dates of birth are not considered private. See R.I. Gen. Laws § 11-49.3-3(a)(8). However, other statutes demonstrate to the contrary. See , e.g. , R.I. Gen. Laws § 12-30-13(a) (providing that the "dates of birth" of criminal witnesses are "not subject to disclosure pursuant to chapter 2 of title 38 [the APRA]"). Indeed, the Driver's Privacy Protection Act explicitly provides that "the division of motor vehicles *** shall not knowingly disclose or make available to any person or entity personal information about any individual obtained by the division in connection with a motor vehicle record" and defines "personal information" as "information that identifies an individual[.]" R.I. Gen. Laws §§ 27-49-3.1(c)(1); 27-49-3.1(b)(3).

Perhaps most dispositive, the APRA itself shows solicitude for the privacy inherent in a person's full date of birth; the provision mandating disclosure of certain information in arrest logs pointedly only requires disclosure of the "[y]ear of birth of the arrested adult[.]" R.I. Gen. Laws § 38-2-3.2(a)(3). We note that this provision was added during the 2012 amendments to the APRA and that other submitted versions of this amended subsection included mandatory disclosure of the day and month as well as the year of birth. The fact that the General Assembly passed, and the Governor signed, the version of the subsection that only requires disclosure of the year of birth is telling.

Finally, you submit that the SOS's concerns regarding identity theft are "both speculative and overstated[.]" However, as adverted to by the SOS, substantial case law supports the SOS's position that disclosure of full dates of birth triggers real identity theft concerns. See True the Vote v. Hosemann , 43 F.Supp.3d 693, 737 (S.D. Miss. 2014) ("One of the reasons that governments seek to protect birthdates and SSNs from disclosure, and warn the public against voluntary disclosure of that information, is to mitigate the risk of identity theft"); see also Matter of Hearst Corp. v. State of New York . 24 Misc.3d 611, 625-29 (Sup. Ct. Albany Cty. 2009) ("[I]t is by now well established that the disclosure of an individual's full birth date, taken together with his or her full name and the details of employment, can be used to facilitate identity theft, thereby resulting in both economic and personal hardship to individuals"). We further note that the relevant inquiry is not whether identity theft is likely, yel non, to occur, but whether the sought information implicates privacy interests and the extent of those privacy interests when compared to a cognizable public interest. See Providence Journal Co. , 136 A.3d at 1177 ("The privacy interest at stake flows *** from the information and personal details[.]"). In other words, we need only determine whether disclosure of the full dates of birth implicates privacy interests.

In making that determination, we note that the privacy interests implicated by disclosure of full dates of birth are context-dependent. As one federal district court noted, "[o]n their own, dates of birth are practically irrelevant. Dates of birth are only helpful in identifying individuals where other identifying information is already known, and the date of birth can be used to narrow the choices." Dayton Newspapers, Inc. , 257 F. Supp. 2d at 1005-06. Several federal courts have upheld nondisclosure of private individuals' dates of birth in different contexts. See Havemann , 537 Fed. Appx. at 148 (upholding nondisclosure of dates of birth of individuals who received benefits from the SSA); see also Schiller , 205 F. Supp. 2d at 664 (upholding nondisclosure of dates of birth of individuals who were arrested by the Immigration and Naturalization Service).

Here, the information sought is the full date of birth for nearly 790,000 Rhode Islanders in a searchable electronic format that additionally contains corresponding information on the voter's name, street address, and other identifying information. We are cognizant that "the FOIA's central purpose 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." Reporters Comm, , 489 U.S. at 774 (emphases in original). Further, we are mindful of the United States Supreme Court's admonition that "where the subject of the documents 'is a private citizen,' 'the privacy interest *** is at its apex.'" Fayish , 541 U.S. at 172 (quoting Reporters Comm. , 489 U.S. at 780). Finally, we note the United States Supreme Court's observation that "in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a FOIA request for information about a particular private citizen." Reporters Comm. , 489 U.S. at 774-75. Accordingly, we conclude on the record presented that a searchable electronic file with the full dates of birth of 790,000 Rhode Islanders implicates privacy interests.

Under controlling authority, the privacy interests here cannot be "easily displaced absent a particularly noteworthy public interest." Providence Journal Co. , 136 A.3d at 1178. As explained supra , pursuant to binding Rhode Island Supreme Court precedent, you have not properly asserted a public interest, and, even given the public interest you asserted in your rebuttal, we find no evidence (and you assert no argument) that disclosure of the full dates of birth of all 790,000 Rhode Islanders would sufficiently advance a public interest. As such, we conclude on this record that the privacy interest outweighs the public interest and that the APRA does not mandate disclosure of the full dates of birth here. Again, we emphasize the fact-specific nature of this finding. We accordingly find that the SOS did not violate the APRA by declining to do so.

Two final matters warrant mention. First, you cite United States Dept. of Defense v. Fed. Labor Relations Autfa., 510 U.S. 487, 500 (1994) and Walke v. Cullen , 491 Fed. Appx. 273, 275 (3d Cir. 2012) for the general proposition that voter registration records are public records. However, neither case squarely examined whether dates of birth are public or even described the contents of voter registration records. Not all voter registrations list a voter's full date of birth, so a comparison of outside authorities on this point - without developing precisely what records are contained within the list - may well be fruitless. See True the Vote , 43 F.Supp. 3d at 723-24 ("[T]he Voter Roll does not contain birthdates[.]"). Thus, this argument is not dispositive.

Second, in your rebuttal - for the first time - you raise the applicability of the National Voter Registration Act, 25 U.S.C. § 20501, et seq. ("NVRA") and claim that it mandates disclosure of full dates of birth. To the extent that you rest your argument for disclosure solely on the basis of federal law, we question our authority to determine the matter as our jurisdiction is limited to interpreting the APRA. See R.I. Gen. Laws § 38-2-8. For this reason, and the other reasons explained herein, we have no occasion to examine federal law as part of this APRA finding.

Although the Attorney General will not file suit in this matter, nothing within the APRA prohibits an individual or entity from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 38-2-8(b). Please be advised that we are closing this file as of the date of this letter.

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

Very truly yours,

Sean Lyness, Special Assistant Attorney General.

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Notes:

We acknowledge the SOS's contention that Mr. Larkin's submission of the instant Complaint constitutes unauthorized practice of law in Rhode Island. As such, Mr. Freel has filed the rebuttal, which points out that Rule 5.5 of the Rhode Island Rules of Professional Conduct permits a lawyer from an outside jurisdiction to provide legal services "to the lawyer's employer or its organizational affiliates" if they are "not services for which the forum requires pro hac vice admission[.]" Rule 5.5(d)(1). At this juncture, we are satisfied that the submission of the instant Complaint by Mr. Larkin is consistent with this rule.

We make reference to FOIA cases because the Rhode Island Supreme Court has made clear that "[b]ecause APRA generally mirrors the Freedom of Information Act * * * we find federal case law helpful in interpreting our open record law." Pawtucket Teachers Alliance v. Brady , 556 A.2d 556, 558 n.3 (ELI. 1989).

Although Havemann is an "unpublished" per curiam decision, it still provides persuasive authority.

Given the SOS's willingness to provide all other voter registration information and The Providence Journal's apparent interest in learning about persons registered to vote in two different voting districts (and thus the interest in the full dates of birth), we are left to wonder why The Providence Journal did not simply make an APRA request seeking those voters with the same names and full dates of birth, but making clear to the SOS that it need not actually disclose the full date of birth. The result of such an inquiry would, presumably, produce a list of the 0.5% of voters, their names, and addresses. We have no occasion to examine whether the APRA (or other law) would mandate or prohibit such a response and nothing herein should be interpreted to suggest a position on this issue by this Department. But, given the apparent interest in duplicative voter information, we are left to wonder whether a more focused APRA interest would have served or could serve the interests of both parties.

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