Open Government / Access To Public Records - Search

PR 12-22 Finnegan v. Scituate Pension Board

Posted: 2012-08-24

August 24, 2012
PR 12-22

Mr. Richard Finnegan

Re: Finnegan v. Scituate Police Pension Board

Dear Mr. Finnegan:

The investigation into your Access to Public Records Act ("APRA") complaint against the Scituate Police Pension Board ("Board") is complete. By correspondence dated April 3, 2012, you allege the Board violated the APRA by: 1) failing to maintain or keep on file minutes for five (5) of the Board's meetings over the course of 1998 and 1999; 2) failing to provide requested records of pension payments to two public employees; 3) failing to comply with time requirements as set forth under the APRA; and 4) charging you a thirty ($30.00) dollar fee for search and retrieval of the Board's minutes.
In response to your complaint, we received a substantive response from David M. D'Agostino, Esq. Mr. D'Agostino states, in pertinent part:

The Board is comprised of two (2) appointees from the Town Council (Council members); two (2) appointees from the IBPO, representing the Police Department's collective bargaining unit; and the Town Treasurer, who serves as Chair of the Board.

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As a practical matter, the Board appears to have never established a "clerk" (i.e. a person responsible for maintaining and keeping records of the Board's meetings, including minutes). Per the Town's usual policy, establishing a "clerk" for a committee or board is generally a function of the Town Council when it establishes a committee or board; however, in the case of this Board, the Council is limited to selection of two (2) of five (5) members and has no authority (i.e. nothing set forth in the Plan document) to establish a clerk or record keeper.

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Clearly, the Board had the responsibility to keep and maintain records of these meetings and clearly the Board, by not having said records, failed in that obligation.

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RIGL § 38-2-4(b) allows that a "reasonable charge" may be made for the search and retrieval of documents[.]
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The Deputy Treasurer, Karen Beattie, had to comb through several file cabinets in several locations in Town Hall, to search for said records…the search for such records involved looking in records kept in the Town Clerk's office, the Treasurer's Office and storage at Town Hall. This search took…three (3) hours. Possibly, in light of the fact that for a portion of the request (i.e. the meeting minutes) did not exist, consideration could have been given to reduce or waive the hourly retrieval time.
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At the time the request was made, the Treasurer's office was unaware of the guidance provided by this Department in Unofficial Finding PR96-10, Finnegan v. Scituate Police Department. In reviewing the guidance of RIGL § 38-2-2(5)(A)(II), it appeared that the records of a particular retiree/pensioner for a private pension plan, would not be covered by the definition of what constitutes a "public record."…[H]indsight being what it is, and upon review of the Unofficial Finding PR96-10, the requested records would not have been withheld.
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Upon a review of the documents contained in your correspondence and comprising the record of this matter, the Town admits that the record (as reflected in the documents) accurately reflects the course of events. That said, the Town does assert that the failure to respond within the time period required by the APRA was not willful, nor was the request for additional time from Deputy Treasurer, dated January 30, 2012, meant to willfully delay the production of the documents requested.

We acknowledge receipt of your reply dated May 6, 2012.

At the outset, we note that 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 Board violated the APRA. See R.I. Gen. Laws § 38-2-8. In other words, we do not write on a blank slate.

I. The Board violated the APRA when it failed to keep minutes on file for five (5) of the Board's meetings over the course of 1998 and 1999 pursuant to R.I. Gen. Laws § 38-2-3(b).

The APRA requires all public bodies to "make, keep, and maintain written or recorded minutes of all meetings." R.I. Gen. Laws § 38-2-3(b).[fn1] Here, Mr. D'Agostino concedes that "there are no corresponding minutes" for the meetings requested. He acknowledges that "the Board had the responsibility to keep and maintain records of these meetings and clearly the Board, by not having said records, failed in that obligation." Although we have several concerns relating to this issue, having been presented with no evidence that these minutes exist, or other arguments, this Department finds that the Board violated the APRA by failing to keep minutes on file for five (5) of the Board's meetings over the course of 1998 and 1999. See id.

II. The Board violated the APRA when it withheld requested records of pension payments to two public employees.

Among other documents, you requested records of pension payments to two public employees. Under the APRA, a record is public unless it falls within one of twenty-five (25) enumerated exceptions. See R.I. Gen. Laws § 38-2-2(5)(i)(A)(I)-(Y). Specifically, R.I. Gen. Laws § 38-2-2(5)(i)(A)(II) addresses pension records:

Notwithstanding the provisions of this section, or any other provision of the general laws to the contrary, the pension records of all persons who are either current or retired members of the retirement systems established by the general laws as well as all persons who become members of those retirement systems after June 17, 1991 shall be open for public inspection. "Pension records" as used in this section shall include all records containing information concerning pension and retirement benefits of current and retired members of the retirement system established in title 8, title 36, title 42, and title 45 and further members of said systems, including all records concerning retirement credits purchased and the ability of any member of the retirement system to purchase retirement credits, but excluding all information regarding the medical condition of any person and all information identifying the member's designated beneficiary or beneficiaries. (Emphases added).

Under R.I. Gen. Laws § 38-2-2(5)(i)(A)(II), only
those pension records of retirement systems that are "established by the general laws" are public records. Here, Mr. D'Agostino provides evidence of a private pension plan established through contract, not the general laws, between the Board, the Trustee, the Actuary, and the Plan Participants. Having been provided with no evidence to the contrary, the Scituate Police Pension plan appears to be established by contract and not the general laws. Thus, R.I. Gen. Laws § 38-2-2(5)(i)(A)(II) is not applicable.

We now must determine whether the records regarding pension payments are public records under R.I. Gen. Laws § 38-2-2(5)(i)(A)(I). Your request for these records was denied on February 29, 2012 because "[y]our request for pension amounts are identifiable to a particular person for benefits and are therefore not a public record." Although the Board did not cite a specific statute with regards to your denial, we presume the denial was based on R.I. Gen. Laws § 38-2-2(5)(i)(A)(I), which exempts, in relevant part:

[a]ll records which are identifiable to an individual applicant for benefits, client, patient, student, or employee…provided, however, with respect to employees, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and other remuneration in addition to salary…shall be public. (Emphases added).

In prior findings, this Department has found that retirement benefits, including pension records, constitute "other remuneration" and thus were public records under the APRA. See Finnegan v. Scituate Police Department, PR 96-10; Kelly/Narragansett Times v. So. Kingstown School Department, PR 96-05. In Finnegan, we found that "all pension records in the Police Department's possession," including pension records reflecting private pension plans, were public, excluding medical information.[fn2] Thus, in the instant matter, the records regarding pension payments are subject to disclosure under R.I. Gen. Laws § 38-2-2(5)(i)(A)(I).

III. The Board complied with the time requirements set forth under R.I. Gen. Laws § 38-2-7 and did not violate the APRA.

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). Under the APRA, a public body has ten (10) business days to respond in some capacity to a records request, whether by producing responsive documents, denying the request with reason(s), or extending the time period necessary to comply. See R.I. Gen. Laws § 38-2-7. If the public body denies the request, a written response detailing the specific reasons for the denial shall be sent within those ten (10) business days to the person or entity making the request. See R.I. Gen. Laws § 38-2-7(a). If no response is received within ten (10) business days, the lack of response will be deemed a denial. See R.I. Gen. Laws § 38-2-7(b). If, for good cause, the public body cannot comply with a records request within those ten (10) business days, then the public body may extend the period an addition twenty (20) business days, for a total of thirty (30) business days. See R.I. Gen. Laws § 38-2-7(b).

Here, you made an APRA request to the Board on January 20, 2012. On January 30, 2012, you received a response from the Deputy Board Treasurer acknowledging your request and extending the time to respond "an additional 30 days." The Board did respond within the requisite ten (10) business days pursuant to R.I. Gen. Laws § 38-2-7. While the Board arguably erred in stating an extension of time of "an additional thirty (30) days,"[fn3] rather than an additional twenty (20) business days for a total of thirty (30) business days, any error or misstatement was of little moment because based on the evidence provided, the Board responded to your APRA request on February 29, 2012. This was twenty-eight (28) business days after the date of your request, January 20, 2012. Thus, the Board did not violate the APRA.

IV. The Board did not violate the APRA when it charged you a thirty dollar ($30.00) fee for search and retrieval of the minutes requested.

A public body is allowed to charge not more than fifteen dollars ($15.00) per hour for search and retrieval of requested documents, with the first hour being free. See R.I. Gen. Laws § 38-2-4(b).[fn4] Here, the Board did not violate the APRA when it charged you a thirty dollar ($30.00) fee for search and retrieval of the minutes requested. According to the evidence, the total search and retrieval time was three (3) hours for the Deputy Treasurer to search "records in the Town Clerk's office, the Treasurer's office and storage at Town Hall." The Board charged $15.00 per hour with the first hour being free, bringing the total cost to thirty dollars ($30.00). The Board acted in accordance with R.I. Gen. Laws § 38-2-4(b), and we find nothing within the evidence to conclude that the Board violated the APRA.

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. A court "shall impose a civil fine not exceeding one thousand dollars ($1,000) against a public body…found to have committed a knowing and willful violation of this chapter, and shall award reasonable attorney fees and costs to the prevailing plaintiff." See R.I. Gen. Laws § 38-2-9(d).

Upon review of this matter, we find no evidence of a knowing and willful violation.[fn5] See R.I. Gen. Laws § 38-2-9(d). This finding serves as notice to the Board that it is responsible for complying with the APRA at all times, and may serve as evidence of a knowing and willful violation in a similar future circumstance. Legal counsel is further instructed to ensure the Board is aware of this finding and the requirements of the APRA.

With respect to injunctive relief, considering the time that has passed since the 1998 and 1999 meetings, reconstruction of these minutes would be ineffective. Accordingly, we deem injunctive relief inappropriate in that instance. There is also a question whether you have received the pension records. In footnote 7 of his response, Mr. D'Agostino represents that the requested pension records were produced to you. In your reply to that response, you contend that you never received the pension records. Although injunctive relief may be appropriate here, we will allow the Board ten (10) business days within receipt of this letter to respond to you with the requested pension records in a manner consistent with the APRA, if the Board has not already done so. The Board, through Mr. D'Agostino, has represented to this office that any outstanding documents will be provided to you free of charge. If you do not receive a response within this time frame, you should contact this Department so that we may further review the Board's response.

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, although we reserve the right to reopen this matter if the Board fails to comply as stated herein.
We thank you for your interest in keeping government open and accountable to the public.

Very truly yours,




Maria R. Corvese
Special Assistant Attorney General
Extension 2225

MRC/pl

Cc: David M. D'Agostino Esq.

footnotes:
1. Although not raised by either party, it is significant that the provision allegedly violated existed in its present form in 1998 and 1999. See P.L. 1998, ch. 378, § 1.

2. In 1996, the year Finnegan v. Scituate Police Department was issued, the applicable law regarding pensions was found at R.I. Gen. Laws § 38-2-2(d)(1).

3. It may be noteworthy that the Board sought to extend the time to respond for "an additional thirty (30) days" while R.I. Gen. Laws § 38-2-7(b) provides an extension for twenty (20) business days.

4. We note that Mr. D'Agostino, in his reply, stated that "consideration could have been given to reduce or waive the hourly retrieval time" because a portion of the request, specifically the meeting minutes, did not exist. While the Board certainly has authority to waive or reduce its search and retrieval fee, our limited role is to determine whether the fee violated the APRA. In this vein, you also question the Board's fee assessment since a subsequent APRA request by a third party for similar (though not the same) records also resulted in a thirty dollar ($30.00) search and retrieval fee. As we noted, the requested documents were not the same in both cases, though both cases did seek minutes from the same time period. Since your APRA request preceded the third party request, it appears that the Board would have been required to perform the search and retrieval related to your request before it performed the third party's search and retrieval. Also, no argument has been made as to how you are aggrieved by the Board charging the third party a thirty dollar ($30.00) search and retrieval fee.

5. In his response, Mr. D'Agostino represents that "the Treasurer's office was unaware of the guidance provided by this Department in Unofficial Finding PR96-10, Finnegan v. Scituate Police Department." In your reply, you contend that the Board's Chairman, Theodore Przybyla, "remains the same official to whom the prior decision [Finnegan v. Scituate Police Department] was directed." While this present finding and Finnegan v. Scituate Police Department, PR96-10 both require disclosure of pension-related records, each finding differs enough so that any possible prior notice of the 1996 Finnegan decision to the Board does not serve as evidence of a knowing and willful violation in the instant matter. In the prior Finnegan decision, we found that the "agreements on retirement benefits" were public pursuant to R.I. Gen. Laws § 38-2-2(d)(1) (which is found today at R.I. Gen. Laws § 38-2-2(5)(i)(A)(II)). The present finding holds that "records of pension payments to two public employees" are public pursuant to R.I. Gen. Laws § 38-2-2(5)(i)(A)(I) and concludes that R.I. Gen. Laws § 38-2-2(5)(i)(A)(II) is inapplicable to the Board. It bears noting that effective September 1, 2012, the law codified as R.I. Gen. Laws § 38-2-2(5)(i)(A)(II) will be applicable to the Board.

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