Chapter 454

2012 -- S 2652 SUBSTITUTE A AS AMENDED

Enacted 06/26/12

 

A N A C T

RELATING TO PUBLIC RECORDS - ACCESS TO PUBLIC RECORDS

          

     Introduced By: Senators Sheehan, McCaffrey, Hodgson, E O`Neill, and DiPalma

     Date Introduced: March 01, 2012

  

It is enacted by the General Assembly as follows:

 

     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

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

 

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

      (1) "Agency" or "public body" shall mean 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 section 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. as

defined in subsection (a) of this section.

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

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

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

control, jurisdiction, or advisory power.

      (5)(4) (i) "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 which are identifiable to an individual applicant for benefits,

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

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

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

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

personal finances, welfare, employment security, student performance, or information in

personnel files maintained to hire, evaluate, promote, or discipline any employee of a public

body;

     (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, 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 or municipality,

employment contract, work location, 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.

      (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 the any public retirement systems established by the general laws 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 established in title 8, title 36, title 42, and title 45 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 reflecting the initial arrest of an adult and the charge or charges

brought against an adult shall be public.

      (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 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.

      (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 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 section 9-1.1-6.

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

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

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

section.

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

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

regulatory agency.

 

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

Procedures for access. -- (a) Except as provided in section 38-2-2(4), all records maintained or

kept on file by 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 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) 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.

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

all meetings.

      (c)(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.

section 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 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 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.

     (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 that the voluminous nature of the request,

the number of requests for records pending, 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.

     (d) (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 citizen person or entity to examine such records as expeditiously as

they may be made available.

      (e) (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.

      (f) (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.

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

merely because it is stored in a computer.

      (h) (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.

 

     38-2-4. Cost. -- (a) Subject to the provisions of section 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) 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 of a search or retrieval. 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 reduce or waive the fees for costs charged for search or retrieval if 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.

 

     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 by the public body official who has custody or control of the public record 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, this limit

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

provisions of subsection 38-2-3(e) of this chapter. 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 section 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.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

record is maintained.

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

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

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

complaint on behalf of the public interest.

 

     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 one thousand dollars ($1,000) 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 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.

 

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

hereby amended by adding thereto the following sections:

 

     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.

 

     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.

 

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

Public Records" is hereby repealed.

 

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

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

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

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

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

and/or imprisonment for no longer than one year.

 

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

     

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LC02012/SUB A/3

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