2017 -- S 0068

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO PUBLIC RECORDS - ACCESS TO PUBLIC RECORDS

     Introduced By: Senators Archambault, Conley, Lombardi, Morgan, and Lombardo

     Date Introduced: January 18, 2017

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 38-2-1, 38-2-2, 38-2-3, 38-2-3.2, 38-2-3.16, 38-2-4, 38-2-9, 38-2-

14 and 38-2-15 of the General Laws in Chapter 38-2 entitled "Access to Public Records" are

hereby amended to read as follows:

     38-2-1. Purpose.

     The public's right to access to public records and the individual's right to dignity and

privacy are both recognized to be principles of the utmost importance in a free society. The

purpose of this chapter is to facilitate public access to public records. It is also the intent of this

chapter to protect from disclosure information about particular individuals maintained in the files

of public bodies when disclosure would constitute an unwarranted invasion of personal privacy as

specified by the exemptions contained herein.

     38-2-2. Definitions.

     As used in this chapter:

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

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

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

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

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

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

any public agency, and shall also include the police department of any private educational

institution of higher learning employing any special police officers pursuant to §12-2.1-1 or peace

officers as defined in §12-7-21.

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

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

control, jurisdiction, or advisory power.

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

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

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

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

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

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

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

chapter, and subject to the provisions of §38-2-3(b), the following records shall not be deemed

public:

     (A) (I) (a) All records relating to a client/attorney relationship and to a doctor/patient

relationship, including all medical information relating to an individual in any files.

     (b) Personnel and other personal individually-identifiable records otherwise deemed

confidential by federal or state law or regulation, or the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et seq.; provided,

however, with respect to employees, and employees of contractors and subcontractors working on

public works projects which are required to be listed as certified payrolls, the name, gross salary,

salary range, total cost of paid fringe benefits, gross amount received in overtime, and any other

remuneration in addition to salary, job title, job description, dates of employment and positions

held with the state, municipality, employment contract, or public works contractor or

subcontractor on public works projects, employment contract, work location, and/or project,

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

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

employee as a result of termination, or otherwise leaving employment, including, but not limited

to, payments for accrued sick and/or vacation time, severance pay, or compensation paid pursuant

to a contract buy-out provision. For the purposes of this section, "employee" means those

individuals currently employed by a public body and those previously employed by a public

body.

     (II) 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

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of any public retirement systems 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 systems and future 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 unless and until the member's designated beneficiary or

beneficiaries have received or are receiving pension and/or retirement benefits through the

retirement system.

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

or corporation which is of a privileged or confidential nature.

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

juvenile proceedings before the family court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

agency and records or reports, including the initial narrative report, reflecting the initial arrest of

an adult and the charge or charges brought against an adult shall be public. The "initial narrative

report" means the written statement(s) accompanying the arrest report of an adult(s), recounting

the arrest and the incident(s) and/or circumstance(s) leading to the arrest, as prepared by the

arresting or investigating officer(s). A police report of an incident that does not lead to an arrest

shall not be deemed presumptively exempt from disclosure.

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

party in litigation.

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

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

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

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

public body with respect to the contribution by the contributor.

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

collective bargaining.

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

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

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

pursuant to chapter 46 of title 42.

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

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

be deemed public.

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

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

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

examination.

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

correspondence of or to elected officials that have no demonstrable connection to the exercise of

official functions or influence in their official capacities.

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

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

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

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

eminent domain shall not be affected by this provision.

     (O) All tax returns.

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

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

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

shall not be deemed to be public, except upon showing of good cause.

     (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

her examination.

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

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

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

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

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

from the operation of this chapter.

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

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

materials.

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

hearing or speech impaired.

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

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

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

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

the commissioner of insurance from disclosing otherwise confidential information to the

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

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

the laws of this state.

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

confidential and shall not be deemed public records.

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

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

     (Z) Any individually identifiable evaluations of public school teachers made pursuant to

state or federal law or regulation.

     (AA) All documents prepared by school districts intended to be used by school districts

in protecting the safety of their students from potential and actual threats.

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

Procedures for access.

     (a) Except as provided in § 38-2-2(4), all records maintained or kept on file by of any

public body, whether or not those records are required by any law or by any rule or regulation,

shall be public records and every person or entity shall have the right to inspect and/or copy those

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records at such reasonable time as may be determined by the custodian thereof.

     (b) Any reasonably segregable portion of a public record excluded by subdivision 38-2-

2(4) including any record deemed confidential pursuant to any other state law shall be available

for public inspection after the deletion of the information which is the basis of the exclusion. If an

entire document or record is deemed non-public, the public body shall state in writing that no

portion of the document or record contains reasonable segregable information that is releasable.

In withholding any document or any portion of a document, the public body shall identify each

document withheld; state the statutory exemption claimed; and explain how disclosure would

damage the interests protected by the claimed exemption.

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

meetings.

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

but shall not require written requests for public information available pursuant to R.I.G.L. § 42-

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

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

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

public record request should be made, and a copy of these procedures shall be posted on the

public body's website if such a website is maintained and shall be made otherwise readily

available to the public. The unavailability of a designated public records officer shall not be

deemed good cause for failure to timely comply with a request to inspect and/or copy public

records pursuant to subsection (e). A link to the public body's procedures shall be prominently

displayed on the home page of its website, including a link to the appropriate webpage if the

public body requires that requests be submitted to another public body of the state or

municipality. A written request for public records need not be made on a form established by a

public body if the request is otherwise readily identifiable as a request for public records. The

procedures shall allow requests for public records to be submitted in person, by regular mail, fax,

and electronic mail.

     (e) A public body receiving a request shall permit the inspection or copying within ten

(10) business days after receiving a request. If the inspection or copying is not permitted within

ten (10) business days, the public body shall forthwith explain in writing the need for additional

time to comply with the request. Any such explanation must be particularized to the specific

request made. In such cases the public body may have up to an additional twenty (20) business

days to comply with the request if it can demonstrate with specificity that the voluminous nature

of the request, the number of requests for records pending (in which case the number of pending

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requests shall be cited in the response), or the difficulty in searching for and retrieving or copying

the requested records, is such that additional time is necessary to avoid imposing an undue burden

on the public body. The response times established by this subsection may be waived only with

the explicit written consent of the requester.

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

a person or entity requests access, the custodian shall so inform the person or entity and make an

appointment for the person or entity to examine such records as expeditiously as they may be

made available.

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

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

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

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

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

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

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

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

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

merely because it is stored in a computer.

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

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

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

about him/herself.

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

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

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

unduly burdensome due to the volume of records requested or the costs that would be incurred.

The person requesting delivery shall be responsible for the actual cost of delivery, if any.

     (l) Notwithstanding the provisions of §38-2-2(4), any documents reviewed, considered,

or submitted at a public meeting of a public body shall be deemed public.

     (m) A requester's failure to follow the written procedures established by a public body

shall not, by itself, serve as a basis to fail to comply with a request for public records.

     (n) If a request for records is sent to a public body other than through the designated

public records officer or unit, the recipient of the request shall be responsible for forwarding it to

the designated officer or unit. In such circumstances, the public body shall have an additional five

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(5) days to respond to the request, notwithstanding the provisions of §38-2-7.

     (o) The unavailability of a designated public records officer shall not be deemed good

cause for failure to timely comply with a request to inspect and/or copy public records pursuant to

subsection (e) of this section.

     38-2-3.2. Arrest logs.

     (a) Notwithstanding the provisions of subsection 38-2-3(e), the following information

reflecting an initial arrest of an adult and charge or charges shall be made available within forty-

eight (48) hours after receipt of a request unless a request is made on a weekend or holiday, in

which event the information shall be made available within seventy-two (72) hours, to the extent

such information is known by the public body:

     (1) Full name of the arrested adult;

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

     (3) Year of birth of the arrested adult;

     (4) Charge or charges;

     (5) Date of the arrest;

     (6) Time of the arrest;

     (7) Gender of the arrested adult;

     (8) Race of the arrested adult; and

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

     (b) The provisions of this section shall apply to arrests made within five (5) days prior to

the request. The attorney general shall prepare a uniform log form for public bodies to use to

facilitate compliance with this section.

     38-2-3.16. Compliance by agencies and public bodies.

     Not later than January 1, 2013, and annually thereafter, the chief administrator of each

agency and each public body shall state in writing to the attorney general that all officers and

employees who have the authority to grant or deny persons or entities access to records under this

chapter have been provided orientation and training regarding this chapter. The attorney general

may, in accordance with the provisions of chapter 35 of title 42, promulgate rules and regulations

necessary to implement the requirements of this section, and shall annually post online a list of

those public bodies that have provided the statement required by this section, and those public

bodies that, having submitted a statement in any previous year, have failed to do so for the current

year.

     38-2-4. Cost.

     (a) Subject to the provisions of section 38-2-3, a public body must allow copies to be

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

provided to the public shall not exceed fifteen cents ($.15) ten cents ($.10) per page for

documents copyable on common business or legal size paper. A public body may not charge

more than the reasonable actual cost for providing electronic records or retrieving records from

storage where the public body is assessed a retrieval fee.

     (b) A reasonable charge may be made No charge shall be imposed for the search or

retrieval retrieval, review or redaction of documents or for the denial of a request for records.

Hourly Notwithstanding the foregoing, hourly costs for a search and retrieval shall not exceed not

exceeding fifteen dollars ($15.00) per hour and no costs shall be charged for after the first hour of

a search or retrieval may be charged for any additional requests from any person or entity to the

same public body within a thirty (30) day time period. For the purposes of this subsection,

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

period shall be considered one request.

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

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

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

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

charged for search and retrieval.

     (e) A court may public body shall reduce or waive the fees for costs charged for search or

retrieval if requested and the public body it determines that the information requested is in the

public interest because it is likely to contribute significantly to public understanding of the

operations or activities of the government and is not primarily in the commercial interest of the

requester. Any denial of a request for a reduction or waiver of fees may be challenged in

accordance with the provisions of §38-2-9.

     38-2-9. Jurisdiction of superior court.

     (a) Jurisdiction to hear and determine civil actions brought under this chapter is hereby

vested in the superior court.

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

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

the terms of this chapter.

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

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

superior court.

     (d) The court shall impose a civil fine not exceeding two thousand dollars ($2,000)

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against a public body or official 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 and shall award reasonable attorney fees and costs to the

prevailing plaintiff. The court may also impose a fine up to one hundred dollars ($100) per day

for each day that records were improperly withheld, and may further award compensatory and

punitive damages. The court shall further order a public body found to have wrongfully denied

access to public records to provide the records at no cost to the prevailing party; provided, further,

that in the event that the court, having found in favor of the defendant, finds further that the

plaintiff's case lacked a grounding in fact or in existing law or in good faith argument for the

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

to the prevailing defendant. A judgment in the plaintiff's favor shall not be a prerequisite to

obtaining an award of attorneys' fees and/or costs if the court determines that the defendant's case

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

or reversal of existing law.

     38-2-14. Information relating to settlement of legal claims.

     Settlement agreements of any legal claims against or by a governmental entity shall be

deemed public records.

     38-2-15. Reported violations.

     Every year the attorney general shall prepare a report summarizing all the complaints

received pursuant to this chapter, which shall be submitted to the legislature and which shall

include information as to how many complaints were found to be meritorious and the action taken

by the attorney general in response to those complaints. The attorney general shall publish the full

text of all complaints and the action taken by the attorney general in response to those complaints

on a keyword searchable website.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC RECORDS - ACCESS TO PUBLIC RECORDS

***

     This act would make revisions to the access to public records chapter pertaining to

definitions of a public body and public record, the right to inspect and copy records, arrest logs,

compliance, costs, superior court jurisdiction and judicial remedies, settlement of legal claims and

reported violations.

     This act would take effect upon passage.

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