VIA EMAIL ONLY

June 7, 2019 PR 19-05

State of Rhode Island and Providence Plantations

OFFICE OF THE ATTORNEY GENERAL 150 South Main Street• Providence, RI 02903

(401) 274-4400

Peter F. Neronha Attorney General

Attorney Michael W. Garland, Esq. McKinnon & Harwood, LLC

John DeSimone, Esq. Counsel for Woonsocket Police Depaitment

Re: Maldonado v. Woonsocket Police Department

Dear Attorney Garland and Attorney DeSimone:

The investigation into the Access to Public Records Act ("APRA") Complaint filed by Mr. Luis Maldonado ("Mr. Maldonado" or "Complainant") against the Woonsocket Police Department ("Police Depaitment") is complete. By conespondence dated August 8, 2018, the Complaint alleged that the Police Department violated the APRA when it ignored or denied requests counsel made on behalf of Mr. Maldonado for a police report related to an incident where the Police Depaitment took Mr. Maldonado into custody. For the reasons stated herein, we find that the Police Department violated the APRA.

Background

The Complaint contains three allegations. First, the Complaint alleges that the Police Depmtment violated the APRA when it did not respond to two APRA requests made by Complainant dated March 22, 2017 and August 4, 2017. Second, the Complaint alleges that the Complainant made another APRA request on April 20, 2018, and that the Police Depmtment violated the APRA when it responded on April 30, 2018 that the requested repmt was not a public record and would not be released. Third, the Complainant alleges that the Police Depmtment failed to respond to his administrative appeal in a timely manner. Specifically, by letter dated July 5, 2018, Complainant requested that the Chief of the Police Depmtment review the denial of his APRA request, and counsel for the Police Department, Attorney John J. DeSimone, Esq., responded by letter dated July 25, 2018, denying the appeal. In the July. 25, 2018 letter, the Police Depmtment took the position that because Mr. Maldonado was not mTested, there is a presumption that the requested

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incident report is not a public record. The Police Department did not explain the basis for its assertion that Mr. Maldonado was not arrested.

The Complainant subsequently filed his Complaint with this Office and Attorney DeSimone responded by referencing his prior July 25, 2018 letter. Thereafter, upon request from this Office, the Police Department supplied this Office with the requested police report for an in camera review. Additionally, the Police Department provided a supplemental response addressing the allegation that the Complainant made prior APRA requests on March 22, 2017 and August 4, 2017 that were not answered. In its supplemental response, the Police Department submitted an affidavit from a detective lieutenant responsible for responding to records requests who attested that he could not locate an APRA request from the Complainant prior to the one received on April 20, 2018. The Complainant did not provide a rebuttal or identify any evidence that the Police Department received the requests.

At the request of this Office, the Police Department submitted an additional supplemental response addressing whether its July 25, 2018 response to the administrative appeal was timely. Therein, the Police Department acknowledged that it does not have a record of when the Police Department received the administrative appeal dated July 5, 2018, but notes that since the Complainant represents that he sent the letter on that date, it is possible the request was received later than July 5, 2018. Complainant offered a rebuttal stating that he mailed the administrative appeal letter by first class mail on July 5, 2018.

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.

We start with the first allegation-that the Police Department never responded to two requests for records made by counsel on behalf of Mr. Maldonado on March 22 and August 4. The APRA requires a public body to respond to an APRA request within ten (10) business days, either by producing documents responsive to the request, denying the request and providing the reason(s) for the denial, or, under certain circumstances, extending the time to comply. See R.I. Gen. Laws §§ 38-2-3(e), 38-2-7.

The Complaint alleges, in part, that the Police Department did not respond to the Complainant's requests dated March 22, 2017 and August 4, 2017. However, in a sworn affidavit supplied by the Police Department, the detective lieutenant responsible for APRA requests attested that he could not locate an APRA request from the Complainant prior to April 20, 2018. Although the Complainant supplied this Office with copies of the two APRA requests at issue, he did not provide any evidence rebutting the Police Department's position, and no evidence has been presented that these two APRA requests were received by the Police Department. Based on this record, we cannot find an APRA violation with respect to the allegation that the Police Department did not respond to the Complainant's requests dated March 22, 2017 and August 4, 2017.

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We next tum to the allegation that the Police Department violated the APRA when it denied the Complainant's April 20, 2018 request for a police report. The Complaint alleges that, although Mr. Maldonado was never formally charged, he was tased, handcuffed, taken into police custody, booked, and processed during the incident in question. The Police Department did not dispute that account and did not offer any evidence or argument regarding why those events did not constitute an arrest.

The APRA provides that "records or reports reflecting the initial arrest of an adult and the charge or charges brought against an adult shall be public." See R.I. Gen. Laws § 38-2-2( 4)(D). Conversely, criminal law enforcement records related to detection and investigation of a crime may be exempt under the APRA if they fall under one of the exceptions set forth in R.I. Gen. Laws § 3 8-2-2( 4 )(D), including if disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. Additionally, the APRA requires that any denial shall be made in writing and give the specific reasons for the denial. See R.I. Gen. Laws§ 38-2-7(b). Any reason not set forth in the denial is deemed waived. Id.

Here, the Police Department's initial written response did not provide any specific reason for the denial and instead only made the general, unsupported assertion that the document is not a public record as "explained on the phone" to Complainant's counsel. See R.I. Gen. Laws§ 38-2-7(b). Even the Police Department's response to the administrative appeal, which asserted that the police report was not a public record because there was no arrest, did not provide sufficient evidence or information to explain why Mr. Maldonado being handcuffed, detained, and processed did not constitute an arrest as referenced within R.I. Gen. Laws§ 38-2-2(4)(D). Additionally, the Police Department did not assert that the requested police rep011, in whole or in part, specifically implicated any of the exemptions for law enforcement records contained in R.I. Gen. Laws § 3 8-2-2( 4)(D ), or any other APRA exemption. Accordingly, in the particular circumstances of this case, this Office concludes that the report in question was an initial aiTest report and that the Police Depaiiment's failure to produce it violated the APRA.

Lastly, the Complaint maintains that the Police Department violated the APRA by failing to timely respond to his administrative appeal. Pursuant to R.I. Gen Laws § 38-2-8(a), an individual or entity may appeal the denial of an APRA request to the chief administrative officer of a public body for review and "[t]he chief administrative officer shall make a final determination whether or not to allow public inspection within ten (10) business days after the submission of the review petition." Here, via a letter dated July 5, 2018, the Complainant petitioned the Chief of the Police Department seeking review of the APRA denial and Attorney DeSimone responded by letter dated July 25, 2018. The Complaint asserted that the appeal letter was sent by mail on July 5, 2018. The Police Department did not dispute that assertion and conceded that it has no evidence of the date on which the appeal was received. Even if we allot three days for mailing, the Police Department's response still fell outside the ten business days within which it was required to render a final determination. 1 The Police Depaiiment did not submit evidence to the contrary. Based on the

1 If we conservatively assume that the Police Department received the letter on Monday July 9, 2018, their response still would have been due by July 23, 2019.

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undisputed evidence, we find that the Police Department violated the APRA when it failed to timely respond to the Complainant's appeal petition pursuant to R.I. Gen Laws § 38-2-S(a).

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-S(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).

Based on the record before us at this time, we find no evidence that the Police Depmtment' s violation of the APRA was willful and knowing, or reckless.

The Police Department asserted that it processes many APRA requests every year on a timely basis and that any violation in this matter was an inadvertent mistake. Although we conclude that the Police Department's response to Complainant's administrative appeal was untimely, there is no evidence that it was the result of a systemic or reckless error. Nonetheless, the Police Department should diligently review its processes for logging APRA requests and appeals to ensure that its records reflect the date such requests or appeals are received and track the deadline for a response to ensure that this mistake is not repeated in the future.

Although the Police Department violated the APRA by failing to provide a written explanation of the reason for its initial denial of the APRA request, this failure is at least somewhat mitigated by the evidence that the Police Department also had a telephone conversation with Complainant's counsel regarding its denial and provided a written explanation in response to the administrative appeal. Moreover, the Police Depmtment's response cited statutory provisions and findings of this Office in support of its decision to withhold the requested document. Although we ultimately find that the Police Department erred, the evidence before us indicates that the Police Department's conclusion was based on its good faith interpretation of the applicable law. Additionally, although the Police Department's interactions with Mr. Maldonado appear to constitute an arrest as indicated above, our in camera review of the police report indicates that the Police Department may have had some reason to believe that they took Mr. Maldonado into custody for evaluation and for the protection of himself and others, rather than as a typical punitive arrest. This consideration also mitigates against finding a willful and knowing, or reckless, violation. Further, we are unaware of any similar violations involving the Police Department. Although we do not find willful and knowing, or reckless, violations, the Police Department is advised that its actions in this matter violated the APRA and that this finding may be used as evidence of a willful and knowing, or reckless, violation in a future, similar case.

Although civil penalties are not appropriate in this case, injunctive relief may be appropriate, but we will allow the Police Department ten (10) business days from the date of this letter to respond to the Complainant with the requested document in a manner consistent with the APRA and this finding. The Police Department may not charge for production. See R.I. Gen. Laws§ 38-2-7(b).

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If the Complainant does not receive the document from the Police Department within this time frame, he should promptly contact this Office so that we may further review the Police Department's response.

Please be advised that we are closing this file as of the date of this letter, although we reserve the right to re-open the file should the circumstances warrant. 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-S(b).

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

Sincerely,

Peter F. Neronha Attorney General

By: Isl Andrea M Shea Andrea M. Shea Special Assistant Attorney General