2012 -- H 7838

=======

LC01998

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO PUBLIC RECORDS - ACCESS TO PUBLIC RECORDS

     Introduced By: Representatives Lally, and Gallison

     Date Introduced: February 28, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 38-2-2, 38-2-3, 38-2-4, 38-2-7, 38-2-8 and 38-2-9 of the General

1-2

Laws in Chapter 38-2 entitled "Access to Public Records" are hereby amended to read as follows:

1-3

     38-2-2. Definitions. – As used in this chapter:

1-4

     (1) "Agency" or "public body" shall mean any executive, legislative, judicial, regulatory,

1-5

or administrative body of the state, or any political subdivision thereof; including, but not limited

1-6

to, any department, division, agency, commission, board, office, bureau, authority, any school,

1-7

fire, or water district, or other agency of Rhode Island state or local government which exercises

1-8

governmental functions, any authority as defined in section 42-35-1(b), or any other public or

1-9

private agency, person, partnership, corporation, or business entity acting on behalf of and/or in

1-10

place of any public agency.

1-11

     (2) "Chief administrative officer" means the highest authority of the public body as

1-12

defined in subsection (a) of this section.

1-13

     (3) "Prevailing plaintiff" means and shall include those persons and entities deemed

1-14

prevailing parties pursuant to 42 U.S.C. section 1988.

1-15

     (4) "Public business" means any matter over which the public body has supervision,

1-16

control, jurisdiction, or advisory power.

1-17

     (5) “Records or reports reflecting the initial arrest” means the initial face sheet of the law

1-18

enforcement department’s report, as well as the law enforcement department’s initial written

1-19

narrative statement, pertaining to the arrest of an adult.

2-20

     (5)(6) "Public record" or "public records" shall mean all documents, papers, letters, maps,

2-21

books, tapes, photographs, films, sound recordings, magnetic or other tapes, electronic data

2-22

processing records, computer stored data (including electronic mail messages, except specifically

2-23

for any electronic mail messages of or to elected officials with or relating to those they represent

2-24

and correspondence of or to elected officials in their official capacities) or other material

2-25

regardless of physical form or characteristics made or received pursuant to law or ordinance or in

2-26

connection with the transaction of official business by any agency. For the purposes of this

2-27

chapter, the following records shall not be deemed public:

2-28

     (A)(I)(a) All records which are identifiable to an individual applicant for benefits, client,

2-29

patient, student, or employee, including, but not limited to, personnel, medical treatment, welfare,

2-30

employment security, pupil records, all records relating to a client/attorney relationship and to a

2-31

doctor/patient relationship, including and all personal or medical information relating to an

2-32

individual in any files, including information relating to medical or psychological facts, personal

2-33

finances, welfare, employment security, student performance, or information in personnel files

2-34

maintained to hire, evaluate, promote, or discipline any employee of a public body;

2-35

     (b) Personnel and other personal individually-identifiable records, the disclosure of which

2-36

would constitute a clearly unwarranted invasion of personal privacy; provided, however, with

2-37

respect to employees, the name, gross salary, salary range, total cost of paid fringe benefits, gross

2-38

amount received in overtime, and any other remuneration in addition to salary, job title, job

2-39

description, dates of employment and positions held with the state or municipality, work location,

2-40

business telephone number, the city or town of residence, and date of termination shall be public.

2-41

For the purposes of this section “remuneration” shall include any payments received by an

2-42

employee as a result of termination, or otherwise leaving employment.

2-43

     (II) Notwithstanding the provisions of this section, or any other provision of the general

2-44

laws to the contrary, the pension records of all persons who are either current or retired members

2-45

of the retirement systems established by the general laws as well as all persons who become

2-46

members of those retirement systems after June 17, 1991 shall be open for public inspection.

2-47

"Pension records" as used in this section shall include all records containing information

2-48

concerning pension and retirement benefits of current and retired members of the retirement

2-49

systems established in title 8, title 36, title 42, and title 45 and future members of said systems,

2-50

including all records concerning retirement credits purchased and the ability of any member of

2-51

the retirement system to purchase retirement credits, but excluding all information regarding the

2-52

medical condition of any person and all information identifying the member's designated

2-53

beneficiary or beneficiaries.

3-54

     (B) Trade secrets and commercial or financial information obtained from a person, firm,

3-55

or corporation which is of a privileged or confidential nature.

3-56

     (C) Child custody and adoption records, records of illegitimate births, and records of

3-57

juvenile proceedings before the family court.

3-58

     (D) All records maintained by law enforcement agencies for criminal law enforcement

3-59

and all records relating to the detection and investigation of crime, including those maintained on

3-60

any individual or compiled in the course of a criminal investigation by any law enforcement

3-61

agency. Provided, however, such records shall not be deemed public only to the extent that the

3-62

disclosure of the records or information (a) could reasonably be expected to interfere with

3-63

investigations of criminal activity or with enforcement proceedings, (b) would deprive a person of

3-64

a right to a fair trial or an impartial adjudication, (c) could reasonably be expected to constitute an

3-65

unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the

3-66

identity of a confidential source, including a state, local, or foreign agency or authority, or any

3-67

private institution which furnished information on a confidential basis, or the information

3-68

furnished by a confidential source, (e) would disclose techniques and procedures for law

3-69

enforcement investigations or prosecutions, or would disclose guidelines for law enforcement

3-70

investigations or prosecutions or (f) could reasonably be expected to endanger the life or physical

3-71

safety of any individual. Records relating to management and direction of a law enforcement

3-72

agency and records or reports reflecting the initial arrest of an adult and the charge or charges

3-73

brought against an adult shall be public.

3-74

     (E) Any records which would not be available by law or rule of court to an opposing

3-75

party in litigation.

3-76

     (F) Scientific and technological secrets and the security plans of military and law

3-77

enforcement agencies, the disclosure of which would endanger the public welfare and security.

3-78

     (G) Any records which disclose the identity of the contributor of a bona fide and lawful

3-79

charitable contribution to the public body whenever public anonymity has been requested of the

3-80

public body with respect to the contribution by the contributor.

3-81

     (H) Reports and statements of strategy or negotiation involving labor negotiations or

3-82

collective bargaining.

3-83

     (I) Reports and statements of strategy or negotiation with respect to the investment or

3-84

borrowing of public funds, until such time as those transactions are entered into.

3-85

     (J) Any minutes of a meeting of a public body which are not required to be disclosed

3-86

pursuant to chapter 46 of title 42.

3-87

     (K) Preliminary drafts, notes, impressions, memoranda, working papers, and work

3-88

products; provided, however, any documents submitted at a public meeting of a public body shall

4-1

be deemed public.

4-2

     (L) Test questions, scoring keys, and other examination data used to administer a

4-3

licensing examination, examination for employment or promotion, or academic examinations;

4-4

provided, however, that a person shall have the right to review the results of his or her

4-5

examination.

4-6

     (M) Correspondence of or to elected officials with or relating to those they represent and

4-7

correspondence of or to elected officials in their official capacities.

4-8

     (N) The contents of real estate appraisals, engineering, or feasibility estimates and

4-9

evaluations made for or by an agency relative to the acquisition of property or to prospective

4-10

public supply and construction contracts, until such time as all of the property has been acquired

4-11

or all proceedings or transactions have been terminated or abandoned; provided the law of

4-12

eminent domain shall not be affected by this provision.

4-13

     (O) All tax returns.

4-14

     (P) All investigatory records of public bodies, with the exception of law enforcement

4-15

agencies, pertaining to possible violations of statute, rule, or regulation other than records of final

4-16

actions taken provided that all records prior to formal notification of violations or noncompliance

4-17

shall not be deemed to be public.

4-18

     (Q) Records of individual test scores on professional certification and licensing

4-19

examinations; provided, however, that a person shall have the right to review the results of his or

4-20

her examination.

4-21

     (R) Requests for advisory opinions until such time as the public body issues its opinion.

4-22

     (S) Records, reports, opinions, information, and statements required to be kept

4-23

confidential by federal law or regulation or state law, or rule of court.

4-24

     (T) Judicial bodies are included in the definition only in respect to their administrative

4-25

function provided that records kept pursuant to the provisions of chapter 16 of title 8 are exempt

4-26

from the operation of this chapter.

4-27

     (U) Library records which by themselves or when examined with other public records,

4-28

would reveal the identity of the library user requesting, checking out, or using any library

4-29

materials.

4-30

     (V) Printouts from TELE – TEXT devices used by people who are deaf or hard of

4-31

hearing or speech impaired.

4-32

     (W) All records received by the insurance division of the department of business

4-33

regulation from other states, either directly or through the National Association of Insurance

4-34

Commissioners, if those records are accorded confidential treatment in that state. Nothing

5-1

contained in this title or any other provision of law shall prevent or be construed as prohibiting

5-2

the commissioner of insurance from disclosing otherwise confidential information to the

5-3

insurance department of this or any other state or country, at any time, so long as the agency or

5-4

office receiving the records agrees in writing to hold it confidential in a manner consistent with

5-5

the laws of this state.

5-6

     (X) Credit card account numbers in the possession of state or local government are

5-7

confidential and shall not be deemed public records.

5-8

     (Y) Any documentary material, answers to written interrogatories, or oral testimony

5-9

provided under any subpoena issued under Rhode Island general law section 9-1.1-6.

5-10

     (ii) However, any reasonably segregable portion of a public record excluded by this

5-11

section shall be available for public inspections after the deletion of the information which is the

5-12

basis of the exclusion, if disclosure of the segregable portion does not violate the intent of this

5-13

section.

5-14

     (6) "Supervisor of the regulatory body" means the chief or head of a section having

5-15

enforcement responsibility for a particular statute or set of rules and regulations within a

5-16

regulatory agency.

5-17

     38-2-3. Right to inspect and copy records – Duty to maintain minutes of meetings –

5-18

Procedures for access. – (a) Except as provided in section 38-2-2(5)(6), all records maintained

5-19

or kept on file by any public body, whether or not those records are required by any law or by any

5-20

rule or regulation, shall be public records and every person or entity shall have the right to inspect

5-21

and/or copy those records at such reasonable time as may be determined by the custodian thereof.

5-22

     (b) Each public body shall make, keep, and maintain written or recorded minutes of all

5-23

meetings.

5-24

     (c) Each public body shall establish written procedures regarding access to public records

5-25

but shall not require written requests for public information available pursuant to R.I.G.L. section

5-26

42-35-2 or for other documents prepared for or readily available to the public. These written

5-27

procedures must include, but need not be limited to, the identification of a designated public

5-28

records officer or unit, how to make a public record request, and where a public record request

5-29

should be made, and a copy of these procedures shall be posted on the public body's website if

5-30

such a website is maintained and be made otherwise readily available to the public. The

5-31

unavailability of a designated public records officer shall not be deemed good cause for failure to

5-32

timely comply with a request to inspect and/or copy public records. A written request for public

5-33

records need not be made on a form established by a public body provided the request is

5-34

otherwise readily identifiable as a request for public records.

6-1

     (d) If a public record is in active use or in storage and, therefore, not available at the time

6-2

a person requests access, the custodian shall so inform the person and make an appointment for

6-3

the citizen to examine such records as expeditiously as they may be made available.

6-4

     (e) Any person or entity requesting copies of public records may elect to obtain them in

6-5

any and all media in which the public agency is capable of providing them. Any public body

6-6

which maintains its records in a computer storage system shall provide any data properly

6-7

identified in a printout or other reasonable format, as requested.

6-8

     (f) Nothing in this section shall be construed as requiring a public body to reorganize,

6-9

consolidate, or compile data not maintained by the public body in the form requested at the time

6-10

the request to inspect the public records was made except to the extent that such records are in an

6-11

electronic format and the public body would not be unduly burdened in providing such data.

6-12

     (g) Nothing in this section is intended to affect the public record status of information

6-13

merely because it is stored in a computer.

6-14

     (h) No public records shall be withheld based on the purpose for which the records are

6-15

sought, nor shall a public body require, as a condition of fulfilling a public records request, that a

6-16

person or entity provide a reason for the request or provide personally identifiable information

6-17

about him/herself.

6-18

     (i) At the election of the person or entity requesting the public records, the public body

6-19

shall provide copies of the public records electronically, by facsimile, or by mail in accordance

6-20

with the requesting person or entity’s choice, unless complying with that preference would be

6-21

unduly burdensome due to the volume of records requested. The person requesting delivery shall

6-22

be responsible for the actual cost of delivery, if any.

6-23

     38-2-4. Cost. – (a) Subject to the provisions of section 38-2-3, a public body must allow

6-24

copies to be made or provide copies of public records. The cost per copied page of written

6-25

documents provided to the public shall not exceed fifteen cents ($.15) per page for documents

6-26

copyable on common business or legal size paper. A public body may not charge more than the

6-27

reasonable actual cost for providing electronic records or retrieving records from storage where

6-28

the public body is assessed a retrieval fee.

6-29

     (b) A reasonable charge may be made for the search or retrieval of documents. Hourly

6-30

costs for a search and retrieval shall not exceed fifteen dollars ($15.00) per hour and no costs

6-31

shall be charged for the first hour of a search or retrieval. For purposes of this subsection any

6-32

person or entity submitting multiple requests to the same public body within a thirty (30) day time

6-33

period shall be counted as one request.

7-34

     (c) Copies of documents shall be provided and the search and retrieval of documents

7-35

accomplished within a reasonable time after a request. A public body upon request shall provide

7-36

an estimate of the costs of a request for documents prior to providing copies.

7-37

     (d) Upon request, the public body shall provide a detailed itemization of the costs

7-38

charged for search and retrieval.

7-39

     (e) A court may reduce or waive the fees for costs charged for search or retrieval if it

7-40

determines that the information requested is in the public interest because it is likely to contribute

7-41

significantly to public understanding of the operations or activities of the government and is not

7-42

primarily in the commercial interest of the requester.

7-43

     38-2-7. Denial of access. – (a) Any denial of the right to inspect or copy records, in

7-44

whole or in part, provided for under this chapter shall be made to the person or entity requesting

7-45

the right by the public body official who has custody or control of the public record in writing

7-46

giving the specific reasons for the denial within ten (10) business days of the request and

7-47

indicating the procedures for appealing the denial. Except for good cause shown, any reason not

7-48

specifically set forth in the denial shall be deemed waived by the public body.

7-49

     (b) Failure to comply with a request to inspect or copy the public record within the ten

7-50

(10) business day period shall be deemed to be a denial. Except that for good cause, this limit

7-51

may be extended for a period not to exceed thirty (30) business days. If the volume of a request

7-52

is such that search and retrieval is reasonably expected to exceed thirty (30) business days, a

7-53

public body may apply to a justice of the superior court to further extend the time to comply. All

7-54

copying and search and retrieval fees shall be waived if a public body fails to produce requested

7-55

records in a timely manner; provided, however, that the production of records shall not be

7-56

deemed untimely if the public body is awaiting receipt of payment for costs properly charged

7-57

under section 38-2-4.

7-58

     (c) A public body that receives a request to inspect or copy records that do not exist or are

7-59

not within its custody or control shall, in responding to the request in accordance with this

7-60

chapter, certify that a reasonable search has been conducted for the requested records and that it

7-61

does not have or maintain the requested records.

7-62

     38-2-8. Administrative appeals. – (a) Any person or entity denied the right to inspect a

7-63

record of a public body by the custodian of the record may petition the chief administrative

7-64

officer of that public body for a review of the determinations made by his or her subordinate. The

7-65

chief administrative officer shall make a final determination whether or not to allow public

7-66

inspection within ten (10) business days after the submission of the review petition.

7-67

     (b) If the custodian of the records or the chief administrative officer determines that the

7-68

record is not subject to public inspection, the person or entity seeking disclosure may file a

8-1

complaint with the attorney general. The attorney general shall investigate the complaint and if

8-2

the attorney general shall determine that the allegations of the complaint are meritorious, he or

8-3

she may institute proceedings for injunctive or declaratory relief on behalf of the complainant in

8-4

the superior court of the county where the record is maintained. Nothing within this section shall

8-5

prohibit any individual or entity from retaining private counsel for the purpose of instituting

8-6

proceedings for injunctive or declaratory relief in the superior court of the county where the

8-7

record is maintained.

8-8

     (c) The attorney general shall consider all complaints filed under this chapter to have also

8-9

been filed pursuant to the provisions of section 42-46-8(a), if applicable.

8-10

     (d) Nothing within this section shall prohibit the attorney general from initiating a

8-11

complaint on behalf of the public interest.

8-12

     38-2-9. Jurisdiction of superior court. – (a) Jurisdiction to hear and determine civil

8-13

actions brought under this chapter is hereby vested in the superior court.

8-14

     (b) The court may examine any record which is the subject of a suit in camera to

8-15

determine whether the record or any part thereof may be withheld from public inspection under

8-16

the terms of this chapter.

8-17

     (c) Actions brought under this chapter may be advanced on the calendar upon motion of.

8-18

any party, or sua sponte by the court made in accordance with the rules of civil procedure of the

8-19

superior court.

8-20

     (d) The court shall impose a civil fine not exceeding one thousand dollars ($1,000) five

8-21

thousand dollars ($5,000) against a public body or official found to have committed a knowing

8-22

and willful violation of this chapter, and a civil fine not to exceed two thousand dollars ($2,000)

8-23

against a public body found to have recklessly violated this chapter and shall award reasonable

8-24

attorney fees and costs to the prevailing plaintiff. The court shall further order a public body

8-25

found to have wrongfully denied access to public records to provide the records at no cost to the

8-26

prevailing party; provided, further, that in the event that the court, having found in favor of the

8-27

defendant, finds further that the plaintiff's case lacked a grounding in fact or in existing law or in

8-28

good faith argument for the extension, modification, or reversal of existing law, the court may

8-29

award attorneys fees and costs to the prevailing defendant.

8-30

     SECTION 2. Chapter 38-2 of the General Laws entitled "Access to Public Records" is

8-31

hereby amended by adding thereto the following section:

8-32

     38-2-3.16. Compliance by agencies and public bodies. – Not later than January 1, 2013,

8-33

and annually thereafter, the chief administrator of each agency and each public body shall certify

8-34

to the attorney general that all officers and employees who have the authority to grant or deny

9-1

persons or entities access to records under this chapter have been provided orientation and

9-2

training regarding this chapter. The attorney general may, in accordance with the provisions of

9-3

chapter 35 of title 42, promulgate rules and regulations necessary to implement the requirements

9-4

of this section.

9-5

     SECTION 3. Section 38-2-6 of the General Laws in Chapter 38-2 entitled "Access to

9-6

Public Records" is hereby repealed.

9-7

     38-2-6. Commercial use of public records. -- No person or business entity shall use

9-8

information obtained from public records pursuant to this chapter to solicit for commercial

9-9

purposes or to obtain a commercial advantage over the party furnishing that information to the

9-10

public body. Anyone who knowingly and willfully violates the provision of this section shall, in

9-11

addition to any civil liability, be punished by a fine of not more than five hundred dollars ($500)

9-12

and/or imprisonment for no longer than one year.

9-13

     SECTION 4. This act shall take effect on September 1, 2012.

=======

LC01998

=======

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PUBLIC RECORDS - ACCESS TO PUBLIC RECORDS

***

10-1

     This act would make various amendments to the access to public records act.

10-2

     This act would take effect on September 1, 2012.

=======

LC01998

=======