2012 -- S 2511 SUBSTITUTE A

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LC00288/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO PUBLIC RECORDS -- ACCESS TO PUBLIC RECORDS

     Introduced By: Senators Sheehan, Miller, Jabour, Nesselbush, and Pichardo

     Date Introduced: February 16, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     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

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

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

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

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

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

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

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

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

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place of any public agency.

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

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defined in subsection (a) of this section.

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

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

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

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control, jurisdiction, or advisory power.

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

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

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narrative statement, pertaining to the arrest of an adult.

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

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

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

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

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

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

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

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chapter, the following records shall not be deemed public:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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beneficiary or beneficiaries.

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

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or corporation which is of a privileged or confidential nature.

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

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juvenile proceedings before the family court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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brought against an adult shall be public.

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

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party in litigation.

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

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

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

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

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public body with respect to the contribution by the contributor.

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

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collective bargaining.

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

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

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

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pursuant to chapter 46 of title 42.

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

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

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be deemed public.

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

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

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

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examination.

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

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correspondence of or to elected officials in their official capacities.

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

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

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

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

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eminent domain shall not be affected by this provision.

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     (O) All tax returns.

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

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

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

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shall not be deemed to be public.

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

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

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her examination.

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

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

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

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

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

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from the operation of this chapter.

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

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

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materials.

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

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hearing or speech impaired.

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

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

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

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

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the commissioner of insurance from disclosing otherwise confidential information to the

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

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

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the laws of this state.

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

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confidential and shall not be deemed public records.

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

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

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

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

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

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section.

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

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

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regulatory agency.

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

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

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

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

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

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

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meetings.

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

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

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

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

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

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

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

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

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

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

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otherwise readily identifiable as a request for public records.

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     (d) A public body shall permit the inspection or copying within ten (10) business days

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after receiving a request. If the inspection or copying cannot be completed within ten (10)

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business days, the public body may have an additional twenty (20) business days to respond if it

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asserts in writing that due to the voluminous nature of the request, the number of requests for

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records pending, the difficulty in searching for and retrieving or copying the requested records, or

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the review of the records is such that additional time is necessary to avoid imposing an undue

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burden on the public body. Any such explanation must be particularized to the specific request

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made. If a request is such that search and retrieval is reasonably expected to exceed thirty (30)

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business days, a public body may apply to the attorney general to further extend the time to

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comply, except that where the request for records is made to the department of attorney general,

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the attorney general may apply to the superior court to further extend the time to comply. All

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

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

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

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under this chapter.

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

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

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

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

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

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

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

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

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

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

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

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

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merely because it is stored in a computer.

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

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

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

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about him/herself.

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

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

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

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would be unduly burdensome. The person requesting delivery shall be responsible for the actual

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cost of delivery, if any.

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     (k)(1) Notwithstanding the provisions of subsection (d), the following information

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reflecting the arrest of an adult shall be made available within three (3) days after receiving a

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request and may not be redacted except as provided below:

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     (i) Full name of the arrested adult;

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     (ii) Home address of the arrested adult unless doing so would identify a crime victim;

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     (iii) Date of birth of the arrested adult;

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     (iv) Race and gender of the arrested adult;

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     (v) Charge or charges;

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     (vi) Date of arrest;

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     (vii) Time of arrest;

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     (viii) Name of the arresting officer, unless doing so would identify an undercover officer.

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     (2) This provision shall apply to arrests made within five (5) days prior to the request.

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

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

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

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

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

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the public body is assessed a retrieval fee.

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

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

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

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

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period shall be considered as one request.

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

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

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

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

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charged for search and retrieval.

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

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

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

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primarily in the commercial interest of the requester.

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

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

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

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

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

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

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

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

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may be extended for a period not to exceed thirty (30) business days in accordance with

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subsection 38-2-3(d) of this chapter.

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

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

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chapter, state in writing that a reasonable search has been conducted for the requested records and

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that it does not have or maintain the requested records.

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

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

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

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

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

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

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

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

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

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

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

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

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

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record is maintained.

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

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

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

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complaint on behalf of the public interest.

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

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

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

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

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the terms of this chapter.

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

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

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superior court.

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

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

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and willful violation of this chapter, and shall may award reasonable attorney fees and/or costs to

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the prevailing plaintiff if the court determines that the defendant’s case lacked a grounding in fact

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or in existing law or a good faith argument for extension, modification, or reversal of existing

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law. The court shall further order a public body found to have wrongfully denied access to public

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records to provide the records at no cost to the prevailing party; provided, further, that in the

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event that the court, having found in favor of the defendant, finds further that the plaintiff's case

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lacked a grounding in fact or in existing law or in good faith argument for the extension,

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modification, or reversal of existing law, the court may award attorneys fees and/or costs to the

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prevailing defendant. A judgment in the plaintiff’s or defendant’s favor shall not be a prerequisite

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to either party obtaining an award of attorney fees and/or costs from the court.

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

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hereby amended by adding thereto the following section:

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

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

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

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

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

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

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of this section.

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

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Public Records" is hereby repealed.

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

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

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

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

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

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and/or imprisonment for no longer than one year.

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

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LC00288/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PUBLIC RECORDS -- ACCESS TO PUBLIC RECORDS

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

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     This act would take effect on September 1, 2012.

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LC00288/SUB A

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