Rhode Island Advisory Opinions February 03, 2006: PR 06-13 (February 3, 2006)

Rhode Island Attorney General Opinions

2006.

PR 06-13.

Dear Mr. Klimko:

The investigation into your Access to Public Records Act ("APRA") and Open Meetings Act ("OMA") complaint against The Pawtucket Housing Authority ("Authority") is complete. In your letter, you allege that the Authority violated both the APRA and the OMA. See R.I. Gen. Laws § 38-2-7; R.I. Gen. Laws § 42-46-5(a)(1).

You have provided us with a copy of your request made to the Authority. By letter dated May 21, 2005, you requested "all available records relating to the meeting of the Housing Authority of the City of Pawtucket on Monday, April 4, 2005". This request included, but was not limited to, a copy of the supplemental written notice, the agenda, open session minutes, closed session minutes, and posting information relating to the Secretary of State's website requirement. You indicate that the Authority did not provide responsive documents to your May 21, 2005 request. Additionally, you assert that the closed meeting portion of the April 4th meeting violated R.I. Gen. Laws § 42-46-5(a)(1) for failure to notify you in advance in writing that you "may require that the discussion be held at an open meeting" and that you had "no advanced written notification of this meeting."

We have received a substantive response from Jeffrey W. Kasle, attorney for the Authority. Attorney Kasle states that your request was received on May 24, 2005 and that the response to your APRA request was mailed on June 7, 2005. He attests that "all information that was legitimately available to Mr. Klimko as a result of the meeting.was forwarded". He has provided us with copies of all the documents mailed to you, including the announcement of the meeting that contained the agenda and the open session minutes of the meeting. He further states that the documents not forwarded, the executive session minutes, were sealed and, statutorily, not available. Attorney Kasle acknowledges that the Authority did not provide you with written notification of the meeting nor did they inform you that you could require the discussion be held in open meeting. Attorney Kasle indicates that after the executive session, the Authority convened into open session and it was at that point that they discussed both candidates and decided to vote on whom to offer the position. At this point, in open session, the Authority voted to offer the position to the other candidate based upon the other candidate's qualifications, i.e. housing authority experience.

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). Upon receipt of a records request, a public body must respond in some capacity within ten (10) business days, either producing responsive records, denying the request, or extending the time to respond for "good cause." R.I. Gen Laws § 38-2-7.

The OMA states that "[e]very meeting of all public bodies shall be open to the public unless closed pursuant to §§ 42-46-4 and 42-46-5." R.I. Gen. Laws § 42-46-3. The OMA further provides that "[a] public body may hold a meeting closed to the public pursuant to §42-46-4 for..[a]ny discussions of the job performance, character . . . of a person provided that such person or persons affected shall have been notified in writing and advised that they may require that the discussion be held at an open meeting. Failure to provide such notification shall render any action taken against the person or persons affected null and void." R.I. Gen. Laws § 42-46-5(a)(1). Additionally, "[b]efore going into a closed meeting pursuant to this subsection, the public body shall state for the record that any persons to be discussed have been so notified and this statement shall be in the minutes of the meeting." Id.

As to your APRA complaint, after reviewing the documents provided to you by the Authority, we find that the Authority provided responsive documents to your request within ten (10) business days of receipt of your letter. In particular, by letter dated June 7, 2005, you received a copy of the posted notice (agenda) and the open session minutes. Since you were provided this information within ten (10) business days of your request, we find no violation. Moreover, although you were not provided a copy of the executive session minutes or information relating to the Secretary of State's website posting, the executive session minutes were sealed, and therefore, are exempt from public disclosure. See R.I. Gen. Laws § 38-2-2(4)(i)(J). With respect to the Secretary of State's website posting information, although required pursuant to R.I. Gen. Laws § 42-46-6(a), we have been provided no information that the Authority maintains such information. Hence, we find no APRA violation. See R.I. Gen. Laws § 38-2-3(f).

As to your OMA complaint, after a full review of the facts and documents, we find that the Authority violated the OMA in several ways. As acknowledged by the Authority, you were not notified in advance in writing that you could have your executive session telephone interview held at an open session. This violated R.I. Gen. Laws §42-46-5(a)(1). Reviewing the documents provided, specifically the meeting minutes, we find several things of note. First, a record of the vote to go into executive session was recorded in the minutes, but we find no evidence that there was a statement identifying the matter to be discussed in the executive session entered into the minutes. This violated R.I. Gen. Laws § 42-46-4. Second, in violation of R.I. Gen. Laws § 42-46-5(a)(1), before entering into the closed session, the Authority failed to enter into the minutes that any persons to be discussed had been so notified and provided the opportunity to have the executive session discussion held in open session. We also observe that we have been provided no information to suggest that the Authority posted its notice with the Secretary of State's website in violation of R.I. Gen. Laws § 42-46-6(a). In fact, our independent review of the website, as well as the Authority's failure to provide you with these documents, suggest that it did not.

Upon a finding that a complaint brought pursuant to the OMA is meritorious, the Attorney General may initiate suit in the 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 find 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.

In this case, we find that neither remedy is appropriate. Specifically, we have found no evidence that these violations were willful or knowing. Although R.I. Gen. Laws § 42-46-5(a)(1) requires that failure to comply with the requirements of the executive session shall render any actions to be declared null and void, our review of this matter finds that the Authority did not take any action in executive session. Instead, we find that after conducting your interview and the other candidate's interview in executive session, the Authority came out of executive session and reconvened the open session where the Authority discussed the two candidates and voted on whom to offer the position. Consequently, there was no action taken during the course of the executive session that could be declared null and void. Moreover, we do not believe that injunctive relief is appropriate for the other OMA violations. Nonetheless, this finding serves as notice to the Authority that its omissions violated the OMA and this finding may serve as evidence that any future similar violations are willful or knowing.

Although this Department will not pursue further action on your behalf in Superior Court, nothing within the APRA or the OMA prohibits an individual from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in the Superior Court. You may do so within (90) days of the Attorney General's closing of this complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later. R.I. Gen. Laws § 42-46-8. Please be advised that we are closing your file as of the date of this correspondence.

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

Very truly yours,

Laura A. Marasco

Special Assistant Attorney General

LM/pl

cc: Jeffrey W. Kasle, Esq.