Armstrong v. Town of Westerly, 082120 RIAGO, PR 20-59

• Case Date: August 21, 2020
• Court: Rhode Island

Armstrong v. Town of Westerly AGO PR 20-59 No. PR 20-59 Rhode Island Attorney General Opinion State of Rhode Island and Providence Plantations August 21, 2020           William J. Conley, Jr., Esquire.           Town Solicitor, Town of Westerly.          Re: Armstrong v. Town of Westerly          Dear Mr. Armstrong and Attorney Conley:          The investigation into the Access to Public Records Act (“APRA”) complaint filed by Mr. John D. Armstrong (“Complainant”) against the Town of Westerly (“Town”) is complete. For the reasons set forth herein, we find that the Town violated the APRA.          Background          The Complainant submitted an APRA request to the Town on May 1, 2019 seeking certain documents related to operation of the Town Planning Department:

“1. Comprehensive Plan and its preparation for the time period of May 1, 2018 through present

2. Bradford Dying for the time period of January 1, 2019 through Present

3. South Drive Condominiums Comprehensive Permit, 19 South Drive for the time period of 1/1/2018 through present.

4. Any communications between the Director of Development Services and Nancy LeTendre specific to her continued employment as Assistant Solicitor for Planning and Zoning.

         Response to this request shall include all documents sent to or from:          The Director of Development Services and the Assistant Town Solicitor for Planning and Zoning assisting the Director of Development Services, the Town Manager, and any participating developers and their representatives.

1. Copies of all emails sent or received from any Town email address regarding the above captioned matter;

2. Copies of all emails sent or received from any email address regarding the above captioned matters (this is intended to include private email servers or addresses used by a public official during the time frame referenced and regarding the above cited matters that were before the Town Council as official business during the same time periods);

3. Copies of all texts sent or receive [sic] from cell phone or other electronic device capable of communicating messages regarding the above captioned matters (this is intended to include private email servers or addresses used by a public official during the time frame referenced and regarding the above cited matters that were before the Town Council as official business during the same time periods);

4. Copies of all documents as defined by R.I.G.L. rules of discovery, including memos, agendas, electronic calendars detailing communication or scheduling regarding the above cited time frames.” (Emphasis added for clarity as discussed below).

         The Town extended the time to respond to the Complainant’s request an additional twenty (20) business days on May 13, 2019. See R.I. Gen. Laws § 38-2-3(e). On June 10, 2019, the Town provided a flash drive of responsive documents to the Complainant in person and “no written letter accompanied the same.” On June 11, 2019, the Complainant emailed the Town stating that the flash drive was “missing information” related to Requests #3 and #4 above (in bold). On June 13, 2019, the Town Clerk spoke with the Complainant and advised that the response was complete and that “he had the right to appeal to the Town Manager.” Later that day, the Town Clerk contacted Complainant advising him that she had learned from the Director of the Department of Developmental Services (“DDS”), Ms. Lisa Pellegrini, that DDS and the Information Technology Department (“IT”) “miscommunicated concerning the contents of the June 10, 2019 flash drive, and inadvertently documents in response to Request #3 and #4” were not included and the Town was “working on retrieving the additional information requested in Requests #3 and #4.”          On June 17, 2019, the Town provided a second flash drive to the Complainant, which Complainant retrieved in person. On that date, the Town Clerk verbally “advised Mr. Armstrong that one-hundred ninety-one (191) electronic mail communications were not provided on the flash drive because they were between Town staff and legal counsel for the Town, and thus protected by the attorney-client privilege.” The Complainant requested that the Town provide the reasons for exempting the 191 emails in writing, which the Town did on June 20, 2019, citing R.I. Gen. Laws § 38-2-2(4)(A)(I)(a), which exempts records relating to the client/attorney relationship.          Dissatisfied with the Town’s response, the Complainant filed the Complaint with this Office.          Arguments          The Complainant alleges the Town violated the APRA by: (1) failing to timely respond to the request; (2) failing to respond to the request for text messages; and (3) withholding responsive documents pursuant to the attorney-client relationship exemption. The Complainant argues that the Town’s “delinquency prohibits them from withholding information” and that Complainant is “questioning their invocation of Attorney/Client privilege for 191 emails since the topics of my investigation fall within the public domain.”          Attorney William...