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PR 12-18 Costa v. Town of Scituate

Posted: 2012-07-05

July 5, 2012
PR 12-18

Ms. Carol A. Costa

Re: Costa v. Town of Scituate

Dear Ms. Costa:

The investigation into your Access to Public Records Act ("APRA") complaint against the Town of Scituate ("Town") is complete. By correspondence dated February 24, 2012, you allege the Town violated the APRA when it failed to provide you with requested records regarding the Scituate Police Pension Board ("Board") within ten (10) business days.

On or about February 8, 2012, you wrote to the Board's Chairman[fn1] and requested that the Board provide you with the following records:

1. "Agendas of the [Board] from 1996 to the present."
2. "Minutes of the [Board] which correspond to each agenda as noted in request no. 1."
3. "Any and all correspondence to or from the Scituate Town Council from the [Board] from 1996 to the present including but not limited to the annual report of the Scituate Police Pension Plan."
4. "The membership of the [Board] for each calendar year beginning in 1996 to the present and their dates of appointment."

In a subsequent letter to this Department, you attached a correspondence from Scituate Deputy Town Treasurer Karen Beattie dated February 24, 2012, requesting an additional thirty (30) days to respond to your records request.[fn2] The Deputy Town Treasurer's letter also makes clear that your APRA request was received in their office on February 9, 2012.

In response to your complaint, and by letter dated April 11, 2012, the Town Solicitor, David M. D'Agostino, Esquire, provided a copy of a response sent to you by Ms. Beattie regarding your original records request and the status of each individual request. This correspondence relates that request nos. 1 and 2 were "provided," while the following explanations were offered regarding nos. 3 and 4:

3. So called 'annual report' of the [Board] is the bi-annual actuarial reports and annual valuation reports for the annual audit. The records are voluminous; additional copy charges and research fees would be imposed if you would like our staff to copy said reports.[fn3]

4. The [Town] Council may only appoint two of its members to the [Board], which may be obtained from the Town Clerk's Office. The Treasurer is a member by right, and the IBPO appoints two members to the Pension Board as well. The IBPO minutes are not kept at the town hall. The Tax book may list the makeup of the [Board] from time to time.

While item nos. 1 and 2 were not actually provided in the Town's correspondence to you, correspondence to this Department from the Town Solicitor dated May 10, 2012 accurately asserts that your initial request was that these responses be mailed to you. The Town's position was to make you aware of the payment to be remitted and indicated that those records were ready to be retrieved upon remittance of payment for the copies pursuant to R.I. Gen. Laws 38-2-4. The Town acknowledges that its response to your APRA request was untimely.

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 Town violated the APRA. See R.I. Gen Laws 38-2-8. In other words, we do not write on a blank slate.

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). Moreover, the APRA provides 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 ten (10) business days shall be deemed a denial." R.I. Gen. Laws 38-2-7(b).

In the instant complaint, it appears that on or around February 8, 2012, you made a written request to the Board citing the APRA for the aforementioned records nos. 1-4. While there may be some question concerning whether your APRA request was propounded to the proper entity, it is unnecessary for us to address this issue because the Town failed to respond to this request within ten (10) business days, i.e., on or about February 23, 2012. See R.I. Gen. Laws 38-2-7(a)("Any denial of the right to inspect or copy records provided for under this chapter shall be made to the person or entity requesting the right by the public body official who has custody or control of the public record in writing giving the specific reasons for the denial within ten (10) business days of the request"). Instead, on February 24, 2012, the Town attempted to extend the time to respond for twenty (20) business days, but by this date the Town had already violated the APRA by failing to respond in a timely manner and therefore its attempt to extend the time to respond was a nullity. Accordingly, for this reason, we find the Town violated the APRA by failing to respond to your request in a timely manner.

Upon finding a violation of the APRA, the Attorney General may initiate suit in the Superior Court. There are two available remedies in suits filed under the APRA: (1) the court may issue injunctive and declaratory relief and/or (2) the court may impose a civil fine not exceeding one thousand dollars ($1,000) against a public body or any of its members found to have committed a knowing and willful violation.

Here, although no evidence has been presented of a willful and knowing violation, we are aware of a similar violation in 2008. Specifically, in Knowlton v. Town of Scituate, PR 08-28, we advised the Town that it must respond to an APRA request within ten (10) business days, even if the Town did not maintain the requested documents. Despite the similarity, based upon the totality of the evidence, we decline to find a knowing and willful violation, although the Town Solicitor is advised to ensure that all Town employees are aware of their obligations under the APRA. Lastly, although injunctive relief would be appropriate, we will allow the Town ten (10) business days from the date of this finding to provide you access to the documents you have requested. It is our understanding that these documents will be made available to you at no cost.[fn4]

Notwithstanding the above, this finding serves as notice to the Town that its actions violated the APRA and may serve as evidence of a willful and knowing violation in any future similar case. 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 are closing your file as of the date of this correspondence, although we reserve the right to reopen this file should the Town fail to comply with this finding.

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

Very truly yours,




Michael W. Field
Assistant Attorney General

cc: David M. D'Agostino, Esquire

footnotes:
1. The Board's Chairman also serves as the Town Treasurer.

2. Rhode Island General Laws 38-2-7(b) actually provides an extension for "good cause" for a total of thirty (30) business days.

3. Your request was actually broader than the Town's response for a so-called "annual report."

4. The Town has suggested that it does not maintain records responsive to request no. 4, but based upon the evidence presented we are not satisfied that the Town does not maintain any documents responsive to this request. Of course, any response to your APRA request requires that the Town perform a reasonable search to locate responsive documents.

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