2018 -- H 7601

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LC004687

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO PUBLIC RECORDS - ACCESS TO PUBLIC RECORDS

     

     Introduced By: Representatives Craven, McEntee, Knight, Regunberg, and Casimiro

     Date Introduced: February 14, 2018

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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

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

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hereby amended to read as follows:

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     38-2-1. Purpose.

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

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

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

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

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

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specified by the exemptions contained herein.

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     38-2-2. Definitions.

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     As used in this chapter:

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

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

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

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

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

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

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

 

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

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peace officers as defined in § 12-7-21.

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

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

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control, jurisdiction, or advisory power.

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

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

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

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

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

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

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

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chapter, and subject to the provisions of § 38-2-3(b) of this section, the following records shall

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not be deemed public:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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body.

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     (II) Notwithstanding the provisions of this section, or any other provision of the general

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laws to the contrary, the pension records of all persons who are either current or retired members

 

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of any public retirement systems, as well as all persons who become members of those retirement

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systems after June 17, 1991, shall be open for public inspection. "Pension records" as used in this

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section, shall include all records containing information concerning pension and retirement

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benefits of current and retired members of the retirement systems and future members of said

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systems, including all records concerning retirement credits purchased and the ability of any

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member of the retirement system to purchase retirement credits, but excluding all information

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regarding the medical condition of any person and all information identifying the member's

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designated beneficiary or beneficiaries unless and until the member's designated beneficiary or

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

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retirement system.

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

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or corporation that is of a privileged or confidential nature.

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

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juvenile proceedings before the family court.

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

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

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

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

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

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

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

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

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

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

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by a confidential source; (e) would disclose techniques and procedures for law enforcement

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

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prosecutions; or (f) could reasonably be expected to endanger the life or physical safety of any

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

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records or reports including the initial narrative report reflecting the initial arrest of an adult and

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

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

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

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

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deemed presumptively exempt from disclosure.

 

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

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in litigation.

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

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

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

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

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public body with respect to the contribution by the contributor.

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

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collective bargaining.

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

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

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

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pursuant to chapter 46 of title 42.

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

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

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

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

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be deemed public.

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

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

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

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examination.

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

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correspondence of or to elected officials in their official capacities that have no demonstrable

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connection to the exercise of official functions or influence.

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

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

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

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

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eminent domain shall not be affected by this provision.

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     (O) All tax returns.

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

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

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

 

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

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

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

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her examination.

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

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

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

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

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

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from the operation of this chapter.

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

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

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materials.

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

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hearing or speech impaired.

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

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

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

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

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the commissioner of insurance from disclosing otherwise confidential information to the

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

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

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the laws of this state.

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

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confidential and shall not be deemed public records.

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

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

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

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state or federal law or regulation.

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

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

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

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Procedures for access.

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

 

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

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

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

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

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

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

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

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

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

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

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damage the interests protected by the claimed exemption.

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

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meetings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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and electronic mail.

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

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

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

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

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

 

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

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

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

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

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

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the explicit written consent of the requester.

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

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

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

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made available.

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

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

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

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

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

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

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

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

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

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merely because it is stored in a computer.

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

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

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

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about him/herself.

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

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

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

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

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

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     (l) Notwithstanding the provisions of § 38-2-2(4) of this section, any documents

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

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

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

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

 

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

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

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

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

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

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subsection (e) of this section.

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     38-2-3.2. Arrest logs.

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

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

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

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

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such information is known by the public body:

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     (1) Full name of the arrested adult;

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

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     (3) Year of birth of the arrested adult;

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     (4) Charge or charges;

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     (5) Date of the arrest;

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     (6) Time of the arrest;

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     (7) Gender of the arrested adult;

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     (8) Race of the arrested adult; and

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

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

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

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facilitate compliance with this section.

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

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

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

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

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

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

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

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

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

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year.

 

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     38-2-4. Cost.

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

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

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public shall not exceed fifteen cents ($.15) ten cents ($.10) per page for documents copyable on

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common business or legal size paper. A public body may not charge more than the reasonable

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actual cost for providing electronic records or retrieving records from storage where the public

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body is assessed a retrieval fee.

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

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

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

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

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

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

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

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period shall be considered one request.

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

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

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

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

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charged for search and retrieval.

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

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

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

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

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

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

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     38-2-9. Jurisdiction of superior court.

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

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vested in the superior court.

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

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

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the terms of this chapter.

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

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

 

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superior court.

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

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against a public body or official found to have committed a knowing and willful violation of this

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chapter, and a civil fine not to exceed one thousand dollars ($1,000) against a public body found

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to have recklessly violated this chapter and shall award reasonable attorney fees and costs to the

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

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

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punitive damages.

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     The court shall further order a public body found to have wrongfully denied access to

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

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

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

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

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

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

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

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reversal of existing law.

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

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

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deemed public records.

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     38-2-15. Reported violations.

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

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

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

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

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

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on a keyword searchable website.

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     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 make revisions to the access to public records chapter pertaining to

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

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

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and reported violations.

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     This act would take effect upon passage.

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