A N     A C T

RELATING TO PUBLIC RECORDS

Introduced By: Reps. Heffner, Dennigan and Barone

Date Introduced : February 3, 1998

It is enacted by the General Assembly as follows:

SECTION 1. Sections 38-2-1, 38-2-2, 38-2-3, 38-2-4, 38-2-7, 38-2-8, 38-2-9 and 38-2-14 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 {ADD public ADD} records {DEL pertaining to the policy making responsibilities of government DEL} 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 {DEL governmental DEL} {ADD public ADD} records {DEL which pertain to the policy making functions of public bodies and/or are relevant to the public health, safety, and welfare DEL}. 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.

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

(1) "Agency" or "public body" shall mean any executive, legislative, judicial, regulatory, 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 {DEL , DEL} {ADD any authority as defined in section 42-35-1(b), ADD} or any other public or private agency, person, partnership, corporation, or business entity acting on behalf of {ADD and/or in place of ADD} any public agency.

(2) "Chief administrative officer" means the highest authority of the public body as defined in subsection (a) of this section.

(3) "Public business" means any matter over which the public body has supervision, control, jurisdiction, or advisory power.

(4) (i) "Public record" or "public records" shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, {ADD 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) ADD} 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) All records which are identifiable to an individual applicant for benefits, clients, 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, 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; provided, however, respect to employees, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state or municipality, work location, business telephone number, the city or town of residence, and date of termination shall be public.

(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 retirement systems established by the general laws as well as all persons who become members of that 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.

(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 {ADD . ADD} {DEL but DEL} {ADD Provided, however, such records shall not be deemed public ADD} 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 {DEL ; provided, however DEL} {ADD . ADD} {DEL r DEL} {ADD R ADD}ecords relating to management and direction of a law enforcement agency and records {ADD or reports ADD} 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 {DEL . DEL} {ADD ; provided, however, any documents submitted, at a public meeting of a public body shall be deemed public. ADD}

(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{ADD, with the exception of law enforcement agencies ADD} 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 {ADD law or regulation ADD} or state law, {DEL rule, DEL} {ADD or ADD} rule of court {ADD . ADD} {DEL , regulation, or by state statute. DEL}

(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 telecommunication devices for the deaf or hearing and 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.

(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.

{ADD (6) "Prevailing plaintiff" means and shall include those persons and entities deemed prevailing parties pursuant to 42 U.S.C. section 1988. ADD}

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 {ADD or entity ADD} shall have the right to inspect and/or copy those records at such reasonable time as may be determined by the custodian thereof.

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

(c) Each public body shall establish procedures regarding access to public records {DEL . DEL} {ADD but shall not require written requests for public information available pursuant to R.I.G.L. section {DEL45-35-2DEL}{ADD42-35-2ADD} or for other documents prepared for or readily available to the public. ADD}

(d) If a public record is in active use or in storage and, therefore, not available at the time a person requests access, the custodian shall so inform the person and make an appointment for the citizen to examine such records as expeditiously as they may be made available.

(e) {ADD 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. ADD} Any public body which maintains its records in a computer storage system shall provide {DEL a printout of DEL} any data properly identified {ADD in a printout or other reasonable format, as requested ADD}.

(f) 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 {DEL . DEL} {ADD 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. ADD}

{ADD (g) Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer. ADD}

{ADD (h) No public records shall be withheld based on the purpose for which the records are sought. ADD}

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 {DEL public DEL} documents {ADD provided to the public ADD} shall not exceed fifteen cents ($ .15) per page for documents copyable on common business or legal size paper. {ADD A public body may not charge more than the reasonable actual cost for providing electronic records. ADD}

(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 {DEL thirty (30) minutes DEL} {ADD hour ADD} of a search or retrieval.

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

{ADD (d) Upon request, the public body shall provide a detailed itemization of the costs charged for search and retrieval. ADD}

{ADD (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. ADD}

38-2-7. Denial of access. -- (a) Any denial of the right to inspect or copy records provided for under this chapter shall be made to the person {ADD or entity ADD} 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. {ADD Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body. ADD}

(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.

38-2-8. Administrative appeals. -- (a) Any person {ADD or entity ADD} 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 chief administrative officer determines that the record is not subject to public inspection, the person {ADD or entity ADD} 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 {ADD or entity ADD} 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.

{ADD (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. ADD}

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 {DELthe petitioner made in accordance with the rules of civil procedure of the superior court DEL}. {ADDany party, or sua sponte by the court made in accordance with the rules of civil procedure of the superior court.ADD}

{DEL (d) The court may impose a civil fine not exceeding one thousand dollars ($1,000) against a public body or official found to have committed a willful violation of this chapter. DEL}

{ADD(d) The court shall impose a civil fine not exceeding one thousand dollars ($1,000) against a public body or official found to have committed a knowing and willful violation of this chapter, and shall award reasonable attorney fees and costs to the prevailing plaintiff. The court shall futher order a public body found to have wrongfully denied access to public 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 futher 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.ADD}

38-2-14. {DEL Financial information relating to settlement of legal claims. -- DEL} {ADD Information relating to settlement of legal claims. -- ADD}{DELRecords reflecting the financial settlement by public bodies DEL}{ADD Settlement agreements of any legal claims against a governmental entity shall be deemed public records ADD} of any legal claims against a governmental entity shall be deemed public records.

SECTION 2. Chapter 38-2 of the General Laws entitled "Access to Public Records" is hereby amended by adding thereto the following sections:

{ADD 38-2-15. Reported violations. -- ADD} {ADD 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. ADD}

SECTION 3. This act shall take effect upon passage.