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
(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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