2023 -- S 0420

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LC001135

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO PUBLIC RECORDS -- ACCESS TO PUBLIC RECORDS

     Introduced By: Senators DiPalma, Ciccone, Zurier, Euer, McKenney, Burke, F.
Lombardi, Acosta, Goodwin, and Pearson

     Date Introduced: February 16, 2023

     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, 38-2-7, 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 in this chapter.

     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, 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)(i) All records relating to a client/attorney relationship and to a doctor/patient

relationship, including all medical records and information protected by state or federal health care

confidentiality laws relating to an individual in any files.

     (ii) All records protected by the attorney-client privilege.

     (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. For

purposes of this section, the city or town residence shall not be deemed public for peace officers,

as defined in § 12-7-21, and shall not be released. For purposes of this section, "employee" means

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

body.

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     (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, 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 or supplementing 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

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presumptively exempt from disclosure.

     (I) Notwithstanding any other provision of law, any reports of investigations conducted by

internal affair units or their equivalent, regardless of how or by whom the investigation was

initiated, shall be public records; provided, however, names, addresses and other personal

identifiers may be redacted from the reports to the extent their disclosure would constitute a clearly

unwarranted invasion of personal privacy. The name and underlying activity of any law

enforcement officer who has been found to have engaged in misconduct that legally requires

prosecutorial disclosure to a criminal defendant shall be public. Provided, however, no personally

identifiable information shall be released to the extent its release would be in conflict with chapter

28.6 of title 42, the ("law enforcement officers’ bill of rights").

     (II) All police body-worn camera recordings shall be subject to this chapter; provided

further, however, any recordings of incidents involving police use of force shall be publicly

available within thirty (30) days in full or redacted form notwithstanding the presence of an ongoing

investigation into the incident.

     (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.

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     (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 that has no demonstrable

connection to the exercise of official acts or duties.

     (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 a showing of good cause.

     (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; provided, that the public body shall cite

the law, regulation or rule relied upon in withholding any records under this exception.

     (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.

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     (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 § 9-1.1-6. Notwithstanding this provision and absent a

court order to the contrary, a subpoena issued by a governmental entity to a public body or a public

official regarding official business shall be a public record.

     (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.

     (BB) The list of teachers terminated for good and just cause maintained by the department

of education pursuant to § 16-13-9.

     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, and

regardless of physical location, shall be public records and every person or entity shall have the

right to inspect and/or copy those records at such reasonable time as may be determined by the

custodian thereof.

     (b) Any reasonably segregable portion of a public record excluded by § 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) All documents to be discussed at an open meeting of a public body shall be posted or

linked with the electronic filing of the agenda submitted to the secretary of state pursuant to § 42-

46-6(f). 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 and made available upon

request to any member of the public present at the meeting.

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

meetings.

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

records but shall not require written requests for public information available pursuant to § 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.

     (f) 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.

     (g) 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 (5)

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

     (e)(h) 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 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 and § 38-2-3.2(a) may be waived

only with the explicit written consent of the requester.

     (i) 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

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subsection (h) of this section.

     (f)(j) 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)(k) 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, including a format allowing the documents to be

searchable electronically where feasible.

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

merely because it is stored in a computer.

     (j)(n) 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)(o) 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.

     (p) Any contractual or other agreement entered into by a public body with a third party that

purports to keep records that are otherwise public under this chapter confidential shall be deemed

null and void; nor shall a public body delegate to a private party the determination as to what

information provided by that party is exempt from disclosure under this chapter.

     38-2-3.2. Arrest logs.

     (a) Notwithstanding the provisions of § 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

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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 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 § 38-2-3, a public body must allow copies to be made or

provide copies of public records. The cost per copied page of written documents provided to the

public shall not exceed fifteen cents ($.15) five cents ($.05) 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 for the search or retrieval of documents. Hourly costs

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

charged for the first hour two (2) hours of a search or retrieval. Notwithstanding the foregoing, no

charge shall be imposed for the redaction of documents, or for the denial of a request for records.

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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 public body, the attorney general, and the court may shall reduce or waive the fees

for costs charged for search or retrieval if it determines that requested and 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 by a public body or the attorney

general may be challenged in accordance with the provisions of § 38-2-9 and shall be reviewed de

novo by the court.

     38-2-7. Denial of access.

     (a) Any denial of the right to inspect or copy records, in whole or in part provided for under

this chapter shall be made to the person or entity requesting the right in writing giving the specific

reasons for the denial within ten (10) business days of the request and indicating the procedures for

appealing the denial. Except for good cause shown, any reason not specifically set forth in the

denial shall be deemed waived by the public body.

     (b) Failure to comply with a request to inspect or copy the public record within the ten (10)

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

may be extended in accordance with the provisions of § 38-2-3(e) 38-2-3(h). All copying and search

and retrieval fees shall be waived if a public body fails to produce requested records in a timely

manner; provided, however, that the production of records shall not be deemed untimely if the

public body is awaiting receipt of payment for costs properly charged under § 38-2-4.

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

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

state that it does not have or maintain the requested records.

     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

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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) ten

thousand dollars ($10,000) 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)

three thousand dollars ($3,000) 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 attorney’s fees and costs to the prevailing defendant. A judgment in the plaintiff’s favor

shall not be a prerequisite to obtaining an award of attorney’s 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 on a keyword

searchable website the full text of all complaints and the action taken by the attorney general in

response to those complaints.

     SECTION 2. Section 39-21.1-17 of the General Laws in Chapter 39-21.1 entitled "911

Emergency Telephone Number Act" is hereby amended to read as follows:

     39-21.1-17. Confidentiality of calls.

     (a) All telephone calls and telephone call transmissions, including electronic tax messages,

photos or videos, received pursuant to this chapter and all tapes containing records of telephone

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calls shall remain confidential and used only for the purpose of handling emergency calls and for

public safety purposes as may be needed for law enforcement, fire, medical, rescue or other

emergency services. The calls shall not be released to any other parties without the written consent

of the caller whose voice is recorded, or upon order of the court.

     (b) Notwithstanding subsection (a) of this section, calls shall be released to third parties:

     (1) Upon good cause shown;

     (2) Upon order of the court; or

     (3) Upon request, to the individual placing the call; any individual who is heard on the call

communicating information to or for the emergency responder or operator; and the subject(s) of

the call who required emergency services or, if they are incapacitated or deceased, their next of kin.

     SECTION 3. 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 include police departments of any private educational institute and peace

officers within the definition of "agency" or "public body" making them subject to the public

records requests. This act would further make an initial narrative report of a police officer and any

reports of investigations conducted by internal affair units public records. This act would also

increase the sanctions upon a public official who committed a knowing and willful violation to

comply with a request for public records from up to two thousand dollars ($2,000) to ten thousand

dollars ($10,000), and a fine of up to one thousand dollars ($1,000) to three thousand dollars

($3,000) against a public body that recklessly violates a request for public records.

     This act would take effect upon passage.

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