Providence Journal v. Executive Office of Health and Human Services, 010220 RIAGO, AGO PR 20-1

• Case Date: January 02, 2020
• Court: Rhode Island

Providence Journal v. Executive Office of Health and Human Services AGO PR 20-01 No. PR 20-01 Rhode Island Attorney General Opinion State of Rhode Island and Providence Plantations January 2, 2020          Mark Freel, Esquire          Legal Counsel, Providence Journal          Locke Lord          Lisa M. Martinelli, Esquire          Executive Counsel, Executive Office of Health and Human Services          Re: Providence Journal v. Executive Office of Health and Human Services          Dear Attorneys Freel and Martinelli:          We have completed our investigation into the Access to Public Records Act ("APRA") complaint filed by Attorney Freel on behalf of the Providence Journal ("Complainant") against the Executive Office of Health and Human Services ("EOHHS"). For the reasons set forth herein, we find that in responding to Complainant's APRA request, EOHHS properly withheld a number of documents and improperly withheld one document. Additionally, there are a number of documents for which we cannot yet determine whether withholding the documents was proper under the APRA. Our evaluation of EOHHS's asserted basis for withholding those documents would benefit from additional information and analysis in light of the legal standards set forth in this finding, and we accordingly instruct EOHHS to provide supplemental information as described below.          Background          On February 4, 2019, a reporter for the Complainant made an APRA request to EOHHS seeking "access to all documents since July 1, 2018 that relate to the extension of the Deloitte/UHIP contract, including but not limited to emails to and from Deloitte - and within EOHHS - and agreements, contract amendments, extensions, MOUs and the like."          After extending the time for its response pursuant to R.I. Gen. Laws § 38-2-3(e), EOHHS substantively responded to the request on March 18, 2019. EOHHS provided two letters responsive to the request1 and withheld what EOHHS described as a "significant number of documents" that it asserted were not public pursuant to three exemptions:

1. R.I. Gen. Laws § 38-2-2(4)(K), which exempts "[preliminary drafts, notes, impressions, memoranda, working papers, and work products;"

2. R.I. Gen. Laws § 38-2-2(4)(E), which exempts "[a]ny records which would not be available by law or rale of court to an opposing party in litigation;" and

3. R.I. Gen. Laws § 38-2-2(4)(A)(I)(a), which exempts "[a]ll records relating to a client/attorney relationship."

         Besides the above-referenced two letters, EOHHS did not produce any other documents in response to the APRA request. On the following day, at the request of the reporter who submitted the APRA request, EOHHS provided an Exemption Log identifying the documents being withheld and the asserted basis for nondisclosure. EOHHS's Exemption Log is attached as Exhibit A to this finding.          After receiving EOHHS's response, the Complainant appealed to EOHHS's chief administrative officer pursuant to R.I. Gen. Laws § 38-2-8(a). The chief administrative officer affirmed EOHHS's response and denied the appeal. The Complaint to this Office followed.          Legal Arguments          The Complainant alleges that EOHHS violated the APRA when EOHHS withheld documents responsive to Complainant's February 4, 2019 APRA request seeking records relating to the Deloitte/UHIP contract extension. Specifically, Complainant maintains that "EOHHS has misused the so-called 'deliberative process privilege' and has wrongfully asserted that alleged 'privilege' in this instance." Complainant contends that "there is absolutely no basis in APRA itself for the invocation of any such 'deliberative process privilege'" and that the documents sought "are undeniably of significant public interest." Nonetheless, the Complainant acknowledges that "Rhode Island courts have at times recognized a loose and amorphous concept known as 'deliberative process privilege,'" but asserts that there is no basis for its assertion outside the context of litigation and where "the internal deliberations of a government agency represent the very matter at issue."          Finally, the Complainant also argues that EOHHS "over-used the statutory exception protecting 'preliminary drafts.'" Complainant asserts that documents were withheld regarding "strategy" and "contract roll-out planning" even though they were not designated as "drafts."          EOHHS, by and through its Executive Counsel, Lisa M. Martinelli, Esquire, submitted a substantive response, which included affidavits from EOHHS Senior Legal Counsel, Jennifer L. Buckley, Esquire, and Attorney Martinelli herself, as well as a flash drive of all documents withheld for this Office's in camera review. EOHHS maintains that in addition to the time its staff spent searching and retrieving responsive documents, Attorneys Buckley and Martinelli spent over seventy (70) hours reviewing the potentially responsive documents and determining whether they were public. EOHHS provided an Exemption Log to the Complainant and this Office describing each responsive document and listing it under one of three sections, based on the exemption pursuant to which it was withheld.          EOHHS maintains that the documents listed under Section 1 (R.I. Gen. Laws § 38-2-2(4)(K)) "are non-public since they have not been finalized and contain multiple edits or embrace the deliberative process of EOHHS." Next, EOHHS withheld the documents in Section 2 (R.I. Gen. Laws § 38-2-2(4)(E)), asserting the "deliberative process privilege," because the documents "reveal all internal facets of the decision-making and finalization process in extending the Deloitte contract." EOHHS asserts that the deliberative process privilege is well-settled in Rhode Island case law and also generally asserts that "[m]any" of these documents are also exempt under R.I. Gen. Laws § 38-2-2(4)(K).2 Finally, EOHHS contends that the documents in Section 3 (R.I. Gen. Laws § 38-2-2(4)(A)(I)(a)) are exempt from disclosure because "they constitute communications made by a client (agency directors, state managers or employees) to his or her in-house or outside legal counsel for the purposes of seeking professional advice, as well as the response[s] by the attorney to such inquiries."3          We acknowledge Complainant's rebuttal. Among other points, the Complainant's rebuttal clarifies that the Complainant is not challenging the invocation of the attorney-client privilege as a basis to withhold documents but requested that this Office conduct an in camera review to confirm that the privilege was properly applied.          Relevant Law and Findings          When we examine an APRA complaint, our authority is to determine whether a violation of the APRA has occurred. See R.I. Gen. Laws § 38-2-8. In doing so, we must begin with the plain language of the APRA and relevant case law interpreting this statute.          The APRA provides that all records maintained by public bodies are subject to public disclosure unless the document falls within one of the twenty-seven (27) enumerated exemptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(AA). Each of the three exemptions relevant to this matter will be discussed in turn below.          In determining the issues presented by the Complaint, this Office not only analyzed the legal arguments, but also spent a great many hours reviewing each and every document that was withheld by EOHHS and submitted for in camera review. This extensive process required multiple attorneys in this Office to closely review every EOHHS withheld document responsive to this APRA request, which collectively totaled over a thousand pages. Our discussion below refers to various withheld documents based on how they are listed on the Exemption Log that is attached as Exhibit A. Having described our review process, we turn to our substantive findings.          Section 1: R.I. Gen. Laws $ 38-2-2(4)(K)          Rhode Island General Laws § 38-2-2(4)(K) exempts from public disclosure, "[p]reliminary drafts, notes, impressions, memoranda, working papers, and work products." The Complainant argues that EOHHS "over-used the statutory exception protecting 'preliminary drafts,'" specifically taking issue with the exemption of documents marked "strategy," "contract roll-out planning," and "Federal Partner UHIP Project and Deloitte Relationship Update."          Although the APRA does not define the term "draft," it is defined in Merriam-Webster dictionary as "a first or preliminary form of any writing, subject to revision, copying...