2020 -- H 7351

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LC003894

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO PUBLIC RECORDS - ACCESS TO PUBLIC RECORDS

     Introduced By: Representatives Amore, Canario, Noret, Hull, and Johnston

     Date Introduced: January 30, 2020

     Referred To: House Judiciary

     (by request)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 38-2-1, 38-2-2 and 38-2-9 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, safety,

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 or

otherwise pose a risk to the individual or their family.

     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 that 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.

     (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, 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 that 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, 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.

Notwithstanding the provisions of this section, pursuant to § 38-2-9 any person or organization

representing a group of similarly situated persons may petition the superior court to determine

whether disclosing the person's city or town of residence poses a risk to the person or their

family;

     (i) Persons whose city or town of residence is determined by the court, pursuant to § 38-

2-9, to not be public records should inform their personnel department or their keeper of records

of such determination; and

     (ii) Persons who were not part of the initial record determining the existence of a class

exception pursuant to § 38-2-9 may upon becoming a member of the class inform their personnel

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department or the keeper of records that they are part of a class exception and do not wish to have

the city or town of their residence disclosed as part of the public record.

     (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

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 that 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 that 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 reflecting the initial arrest of an adult and the charge

or charges brought against an adult shall be public.

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     (E) Any records that 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 that 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 that are not required to be disclosed

pursuant to chapter 46 of title 42.

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

products, including those involving research at state institutions of higher education on

commercial, scientific, artistic, technical, or scholarly issues, whether in electronic or other

format; 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 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.

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

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 that, 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 employees 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.

     38-2-9. Jurisdiction of superior court.

     (a) Jurisdiction to hear and determine civil actions and any other petition 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 or other petition in

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camera to determine whether the record or any part thereof may be withheld from public

inspection or release 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)

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 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 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. Attorneys' fees shall not be available to those

persons who petition the court to determine whether the city or town in which they reside shall be

made public.

     (e) The court upon determining that city or town in which the petitioner resides shall not

be made public shall forward such determination to the keeper of records and specify whether the

exemption applies to those individuals listed in the petition or if there exists a class exception for

which all future persons who become part of the class may request the same exception without

further need to petition the court.

     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

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     This act would allow any person who is a public employee of any city or town or any

organization representing a group of similarly situated public employees, to petition the superior

court pursuant to § 38-2-9, for a determination that disclosing the person’s or groups’ city or town

of residence poses a risk to the person or their family. If any such petition is granted, individuals

who become part of that group of similarly situated persons would also be able to prevent the city

or town of their residence from being part of any public records request. The persons affected by

this act would provide a copy of any such order to the personnel department or keeper of records

of the city or town.

     This act would take effect upon passage.

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