Rhode Island Advisory Opinions April 09, 2020: AGO PR 20-27 (April 09, 2020)

Advisory Opinion Text

Mr. John Dionne

John J. DeSimone, Esquire

City Solicitor, City of Woonsocket

RE: Dionne v. City of Woonsocket

Dear Mr. Dionne and Attorney DeSimone:

We have completed the investigation into the Access to Public Records Act (“APRA”) complaint filed by Mr. John Dionne (“Complainant”) against the City of Woonsocket (“City”). For the reasons set forth herein, we find that the City violated the APRA.

Background

The Complainant submitted an APRA request to the City requesting “a copy of the list if [sic] qualified candidates of Police & Fire and rankings. This shall include all candidates if any have been appointed by the Director of Public Safety now in the Academy for Police.” The City denied Complainant’s request pursuant to R.I. Gen. Laws § 38-2-2(4)(L), which exempts, inter alia , scoring keys and examination data for employment or promotion.

Complainant subsequently filed a complaint with this Office alleging that the City wrongfully withheld this ranking list because “[w]ithout this ranking list, there is no possible way to determine if the City of Woonsocket is complying with the ordinance of the City that a candidate has to be chosen from the top five ranking candidates.”

The City submitted a response through Assistant City Solicitor Peter N. Wasylyk stating that “[i]t is the City’s position that these documents which are personal identifiable records are exempt from disclosure pursuant to Rhode Island General Law Section 38-2-2(4)(A)(I)(b) and 38-2-2(4)(A)(II)(L) [sic] and (Q).” The City also provided copies of the ranking lists for this Office’s in camera review.

In a supplemental submission, the Complainant indicated that he “spoke to a former member of the personnel board” who told him that “all certification of employment list ranking was approved in open session.” Upon inquiry from this Office, the City submitted a copy of the April 30, 2018 Personnel Board meeting minutes and an affidavit from Mr. Mark Ferguson, City of Woonsocket Personnel Director. Mr. Ferguson stated that the Police Recruit list was “inadvertently certified in Regular Session” at the April 30 Personnel Board meeting but “no information was disseminated to the general public” and he “collected copies of the lists that were reviewed by members of the Personnel Board” at the close of the meeting.

Relevant Law and Findings

When we examine an APRA complaint, our authority is to determine whether a violation of the APRA has occurred. See R.I. Gen. Laws § 38-2-8. In doing so, we must begin with the plain language of the APRA and relevant caselaw interpreting this statute.

The APRA states that, unless exempt, all records maintained by any public body shall be public records. See R.I. Gen. Laws § 38-2-3(a). Among the categories of documents exempt from public disclosure are “[t]est questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or promotion, or academic examinations,” R.I. Gen. Laws § 38-2-2(4)(L); “[r]ecords of individual test scores on professional certification and licensing examinations,” R.I. Gen. Laws § 38-2-2(4)(Q); and “personal individually identifiable records . . . the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-2(4)(A)(I)(b).

Both parties agree that the ranking lists in question pertain to individuals seeking employment with the City’s Police and/or Fire Departments. Based on our in camera review of the ranking lists, these lists contain the names of specific individual candidates and their respective scores on different types of examinations. The list also contains each applicant’s score on other non-examination based criteria, as well as a total final score.

Although the City now asserts three exemptions for denying the request, the City’s initial denial only invoked Exemption L as the basis for withholding the requested ranking lists. Exemption L only pertains to “[t]est questions, scoring keys, and other examination data used to administer a …examination for employment or promotion[.]” The City did not provide any reason why it contends these ranking lists fall within one of these categories. It is apparent to us that the lists are not test questions or scoring keys. Even if the lists were considered “examination data,” the City did not provide any evidence that the lists are “used to administer” an examination. Accordingly, we determine that the lists do not fall within Exemption L and that the City violated the APRA by withholding the records pursuant to that exemption.

The APRA requires that “any denial of the right to inspect or copy records ...shall be made to the person or entity requesting the right in writing giving the specific reasons for the denial” and “[e]xcept for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.” R.I. Gen. Laws § 38-2-7(a) (emphases added). The City did not identify any “good cause” that would warrant not waiving the other exemptions it asserted in response to this complaint. Nonetheless, we discern good cause to analyze whether disclosure of the lists would constitute an unwarranted invasion of personal privacy pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). We reach this conclusion because the records at issue contain personal information about third party individuals and we do not think it appropriate that the City’s failure to cite an exemption should result in these individuals’ privacy interests not being considered and/or being invaded. See Scripps News v. Rhode Island Dept. of Bus. Regs. , PR 14-07 (“We have great difficulty accepting the argument that documents maintained by DBR relating to third parties should be disclosed because of an untimely response.”).

The plain language of R.I. Gen. Laws § 38-2-2(4)(A)(I)(b) 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 ranking lists reveal information regarding individuals’ specific, individual test scores. The lists also reveal the candidates’ scores on non-examination based considerations that also reveal personal information. Based on our in camera review of the lists, we conclude that disclosure of the lists in their entirety would implicate privacy interests for the individuals listed in the document. Conversely, the Complainant contends there is a public interest in disclosure to determine whether the City is complying with the requirements for how candidates are supposed to be selected.

We generally agree with the Complainant’s assertion of a public interest, but on balance we conclude that the public interest in knowing the names and rankings of specific identifiable candidates is outweighed by those individuals’ privacy interests. Significant to our conclusion, although Complainant expressed a general interest in confirming whether the City is complying with the ordinance for selecting candidates, no evidence has been provided (nor is any apparent to us) to suggest that the City is not in compliance. See National Archives and Records Administration v. Favish , 541 U.S. 157, 174 (2004) (“[W]here there is a privacy interest protected * * * and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.”).

Despite our conclusion that information identifiable to specific persons is exempt from disclosure, we conclude that applying the APRA’s balancing test requires producing the requested records, but with the names of the individual candidates redacted. See R.I. Gen. Laws § 38-2-3(b) (requiring public body denying an APRA request to state in writing whether any “reasonably segregable portion of the document or record” is releasable). We have not been provided with any argument – and none is apparent to us – that redaction would not adequately protect the relevant privacy interests.

The Complainant also argued that the ranking lists were certified in open session during the Personnel Board’s April 30 meeting. Rhode Island General Laws § 38-2-2(4)(K), which exempts “preliminary drafts, notes, impressions, memoranda, working papers and work product,” contains the caveat that “any documents submitted at a public meeting of a public body shall be deemed public.” By its plain terms, Exemption (K) is limited to “[p]reliminary drafts, notes, impressions, memoranda, working papers, and work products.” Only these preliminary documents, when submitted at a public meeting, become public. Harris v. City of Providence , PR 17-16. The withheld documents in this case, however, do not fall within any of these categories; therefore, the second part of Exemption (K) does not apply to the ranking lists withheld in this case.

Conclusion

Upon a finding of an APRA violation, the Attorney General may file a complaint in Superior Court on behalf of the complainant, requesting “injunctive or declaratory relief.” See R.I. Gen. Laws § 38-2-8(b). Additionally, a court “shall impose a civil fine not exceeding two thousand dollars ($2,000) against a public body * * * found to have committed a knowing and willful violation of this chapter, and a civil fine not to exceed one thousand dollars ($1,000) against a public body found to have recklessly violated this chapter * * *.” See R.I. Gen. Laws § 38-2-9(d).

Although injunctive relief may be appropriate, we will first permit the City an opportunity to comply with this finding. Within ten (10) business days of the issuance of this finding, the City is required to provide Complainant with the requested records, but with the names of the individual candidates and any other personally identifiable information redacted. If necessary, this timeframe may be extended in accordance with Executive Order 20-05. If the Complainant does not receive these records, he should notify this Office within five (5) business days of when they were due. At this time, we do not find evidence of a willful and knowing, or reckless violation. However, this finding serves as notice to the City that its conduct violated the APRA and may serve as evidence in a future similar situation of a willful and knowing, or reckless violation.

Although this Office has determined that it will not file suit in this matter at this time, nothing within the APRA prohibits the Complainant from filing an action in Superior Court seeking injunctive or declaratory relief. See R.I. Gen. Laws § 38-2-8(b). Please be advised that we are closing our file as of the date of this letter, but may re-open the file if circumstances warrant.

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

Sincerely,

PETER F. NERONHA, ATTORNEY GENERAL.

Kayla E. O’Rourke, Special Assistant Attorney General

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Notes:

We question whether the records could have been exempted under Exemption Q. It is not apparent to us that all the scores listed constitute “test scores on professional certification and licensing examinations.” R.I. Gen. Laws § 38-2-2(4)(Q). In any event, we will not consider this exemption because the City waived it and because we find good cause to analyze the withholding of these records under the personal privacy exemption.

We note that the City’s denial failed to state in writing whether any portion of the withheld documents was reasonably segregable as required by R.I. Gen. Laws § 38-2-3(b), and also failed to indicate the procedures for appealing the denial as required by R.I. Gen. Laws § 38-2-7(a). Although these specific issues were not raised by the Complainant and are outside the scope of this Complaint, the City should take measures to ensure that its responses comply with all the APRA’s requirements.

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