Rhode Island Advisory Opinions June 30, 2004: PR 04-19 (June 30, 2004)

Rhode Island Attorney General Opinions

2004.

PR 04-19 (2004).

Dear Mr. Doyle:

The investigation into your June 13, 2003, Access to Public Records Act [APRA] complaint against the Town of Tiverton is complete. You allege you were improperly prevented from viewing voter registration cards upon your in-person request on May 1, 2003. According to your complaint, Town Clerk Hannibal Costa stated to you that voter registration cards were not public records because they were covered by the "Privacy Act." You further relate that you were not allowed to inspect voter registration cards when you returned to the Town Clerk's office on May 5, 2003.

We have received a response on behalf of the Town from J. William W. Harsch, Esq., the Town Solicitor. The response consists of a November 3, 2003, notarized statement from Town Clerk Hannibal Costa. Mr. Harsch indicates that he makes "no representation regarding the factual representations made in Mr. Costa's response."

In his statement, Mr. Costa indicates that he did deny you access to voter registration cards based on his concern that disclosure of some information on the cards, such as social security numbers and dates of birth, was protected by the "Privacy Act." Mr. Costa further indicates that you returned the next day and showed to him a section of the Rhode Island General Laws which deems voter registration cards public. He states that at that time, he authorized you to review the cards.

The APRA defines public records as "all documents . . . made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." R. I. Gen. Laws § 38-2-2(4)(i). Although the usual APRA analysis requires a public official to determine whether a particular record falls into one of the twenty-three APRA exemptions, voter registration cards have specifically been deemed public records. See R.I. Gen. Laws § 17-9.1-6(b). The form and content of these cards is set by the state board of elections, and they contain the registrant's name, residence address, mailing address if different from residence address, date of birth, and registrant's signature as well as additional information deemed necessary by the state board. See id. § 17-9.1-6(a).

Because § 17-9.1-6(a) does not require social security numbers be compiled on voter registration cards, we asked the Clerk to provide an example of the card to which he referred when he responded to your request. Mr. Costa subsequently provided what appear to be older official voter registration cards which include social security numbers. These cards date back to the 1970s and 1980s. According to the Board of Elections, the current format for voter registration cards, as set by § 17-9.1-6, has been in effect at least since the law was enacted in 1995.

Thus, although § 17-9.1-6 compels disclosure of voter registration cards, we cannot conclude that this section applies strictly to cards that were in use before 1995. As to these older voter registration cards, we conclude that the APRA compels public disclosure, but with the redaction of social security numbers. Although that is not expressly required by Rhode Island's Privacy Act, R.I. Gen. Laws § 9-1-28.1, that Act does establish the right to be secure from disclosure of information "that is entitled to be private or would be expected to be private." R.I. Gen. Laws § 9-1-28.1(1)(i)(A). The APRA in fact requires that public bodies balance the public's right to know with an individual's privacy rights prior to any disclosure of records. See Providence Journal Co. v. Kane, 577 A.2d 661, 663 (R.I. 1990). Similarly, the federal Privacy Act, 5 U.S.C. § 552a, and the federal Freedom of Information Act, 5 U.S.C. § 552(b)(6), establish that the strong privacy interest in social security numbers outweighs the public's interest in disclosure. See, e.g., Int'l Brotherhood of Electrical Workers Local Union No. 5 v. United States Dept. of Housing and Urban Development, 852 F.2d 87, 89 (3rd Cir. 1988).

Based on the evidence presented, we conclude the Town Clerk violated the APRA when he denied your May 1, 2003, request to review voter registration cards. Even though his denial appears to have been motivated by an appropriate concern for individual privacy, the APRA requires redaction of non-public information on otherwise public records if the redaction does not violate the intent of the law. R.I. Gen. Laws § 38-2-2(4)(ii). By denying your request outright, instead of providing you with redacted copies of the requested records, the Town Clerk violated the APRA.

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

We believe that neither remedy is appropriate at this time. First, we have no evidence that the violation was willful and knowing. As for injunctive relief, we decline to seek a court order at this time based on Mr. Costa's representation that he and his staff now recognize the cards are public documents. Of course, as we have discussed herein, certain information on older voter registration cards is appropriately redacted, and we expect the Clerk and his staff to review requests for voter registration cards on a case-by-case basis to determine whether redaction is warranted. This finding shall serve as notice to Mr. Costa and the Town that the outright denial of voter registration cards as discussed herein is illegal, and a subsequent violation may be considered willful and knowing. If you are again denied access to these records, you should inform this Department and we will reconsider our position.

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

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

Sincerely,

Joe Gaeta

Special Assistant Attorney General

Extension 2425

JG/pl

cc: J. William W. Harsch, Esq.