Save the Bay v. Rhode Island Department of Environmental Management, 090220 RIAGO, AGO PR 20-62

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

Save the Bay v. Rhode Island Department of Environmental Management AGO PR 20-62 No. PR 20-62 Rhode Island Attorney General Opinion State of Rhode Island and Providence Plantations September 2, 2020          Kendra L. Beaver, Esquire Staff Attorney, Save the Bay          Mary Kay, Esquire          Executive Counsel, Dept. of Environmental Management          Re: Save the Bay v. Rhode Island Department of Environmental Management          Dear Attorneys Beaver and Kay:          We have completed our investigation into the Access to Public Records Act (“APRA”) complaint filed by Attorney Beaver on behalf of Save the Bay (“Complainant”) against the Department of Environmental Management (“DEM”). For the reasons set forth herein, we find that DEM did not violate the APRA.          Background          On November 19, 2019, the Complainant submitted a 10-part APRA request to DEM seeking multiple categories of records.1 The relevant portions of the Complainant’s request are reproduced below, with formatting slightly altered:

(1) “The number of enforcement cases currently pending in the Rhode Island Courts.

(2) Any lists maintained and/or created by RIDEM of enforcement cases that were filed in, and are currently pending before, Rhode Island Courts with corresponding docket numbers.

(3) Copies of all Notices of Violations issued by DEM from 2014 to the present concerning water, wetlands and Onsite Wastewater Treatment Systems (OWTS) for which no hearing request was filed.

(4) Copies of all consent agreements and/or settlement agreements concerning wetlands enforcements, water enforcement and OWTS enforcement executed between 2014 to the present.

(7) Copies of any notices of informal enforcement actions and Expedited Citation Notices related to water resources violations, freshwater wetlands violations of OWTS violations issued from 2014 to the present.”

         On December 4, 2019, DEM extended the time to respond to the request pursuant to R.I. Gen. Laws § 38-2-3(e), based on the “number of requests pending.” On December 10, 2019, DEM provided the Complainant with an “estimate of retrieval time and costs.” DEM received prepayment from the Complainant on December 24, 2019. DEM substantively responded to the request on January 17, 2020 by denying certain parts of the request and providing over 2,500 pages of documents responsive to other parts of the request. Specifically, DEM indicated that it did not maintain a “list” responsive to Request #1, that a list responsive to Request #2 was being withheld pursuant to R.I. Gen. Laws §§ 38-2-2(4)(A)(I)(a), (K) and (P), and directed Save the Bay to DEM’s website for documents responsive to Requests #3 and #4. DEM provided certain documents responsive to Request #7 but stated that it did not construe Request #7 as seeking “warning letters” and thus DEM did not provide “warning letters” in its response.          Dissatisfied with DEM’s response, the Complainant filed a Complaint with this Office.          Legal Arguments          • Complainant          The Complainant alleges that DEM violated the APRA when it: (1) untimely responded to Requests #1 and #2; (2) withheld documents responsive to Requests #1 and #2; (3) provided links to websites in response to Requests #3 and #4 rather than providing copies of documents; (4) failed to include warning letters in response to Request #7; and (5) failed to comply with the APRA by not complying with the Complainant’s request to review the documents prior to copying.          The Complainant argues that DEM untimely responded to Requests #1 and #2 because “DEM ultimately denied this request on January 17, 2020 – nearly sixty (60) days after the filing of the request.” The Complainant also alleges that “[t]he substance of the response is curious” because DEM stated that it did not maintain a list responsive to Request #1 but that it did maintain, and was withholding, a list responsive to Request #2. The Complainant perceives this “inconsistent” response as evidence that a list responsive to Request #1 exists. The Complainant also disputes DEM’s cited grounds for withholding the list responsive to Request #2.          Regarding DEM’s response to Requests #3 and #4, the Complainant maintains that DEM’s referral to the Office of Compliance and Inspection website was “tantamount to a non-disclosure of the records” “[b]ecause such information is not readily available by following the citation provided.”          The Complainant also states that instead of providing a website link, “the copies requested should have been provided” by DEM.          Next, the Complainant maintains that DEM’s failure to include warning letters in response to Request #7 was improper because “DEM includes warning letters when it refers to informal enforcement actions [in its 2018 Annual Compliance Report] and it was a violation of the APRA to interpret the term ‘informal enforcement actions’ narrowly and contrary to its own agency interpretation.” Finally, the Complainant takes issue with the format of DEM’s response in that DEM provided copies of responsive documents when the Complainant stated that it would “most likely [want] scans but we would like to review the files prior to any copying or scanning.”          • DEM          DEM, by and through its Executive Counsel, Mary Kay, Esquire, submitted a substantive response, which included an affidavit from Attorney Kay, as well as the unredacted list withheld in response to Request #2 for this Office’s in camera review. DEM maintains that completing the Complainant’s request “required the coordinated efforts of over twenty-six (26) DEM staff, in multiple offices and divisions, constituting in excess of ninety (90) hours of staff time and 2500 pages of documents.” DEM states that it timely extended the time to respond to the Complainant’s request on December 4, 2019 and that the time period to respond to Complainant’s request was “suspended” as of December 10, 2019 when DEM requested prepayment for an estimated 96 hours (inclusive of the first free hour allotted under the APRA) until DEM received prepayment on December 24, 2019. See R.I. Gen. Laws § 38-2-7(b). As such, DEM maintains that its January 17, 2020 response to Complainant’s request was timely.          DEM states that Request #1 “did not request a record” and that “[a] single consolidated list which would provide the number of [enforcement cases] does not exist and has never been maintained by DEM.” In responding to this Complaint, DEM provided Complainant a list responsive to Request #2, but redacted certain portions thereof pursuant to Exemptions (A)(I)(a), (K) and (P). Regarding Requests #3 and #4, DEM argues that it referred the Complainant “to discreet sections of the DEM website, where the exact documents requested are readily available for public review.” Additionally, the pertinent section of the DEM website “is organized by month” and “[a] complete copy of each [Notice of Violation (“NOV”)] from 2014 to present can be viewed in pdf format by simply clicking on the appropriate hyperlink” and “[a] complete copy of each consent agreement can be viewed in pdf format by simply clicking the appropriate link.”          Next, DEM states that “[w]hile ‘warning letters’ are included in a description of ‘informal enforcement actions’ in the DEM’s 2018 Annual Compliance Report as referenced in the … Complaint, the use of such terminology in the Annual Compliance Report is hardly definitive of the term ‘informal enforcement action’ as it is understood within the agency” and “[t]he DEM could not be expected to understand that [Complainant] sought to review its ‘warning letters’ when it requested copies of ‘informal enforcement actions.’”          Finally, DEM argues that “[Complainant] has never specified or clarified for the DEM the format in which [Complainant] wanted the DEM’s response to be provided” because “in the [Complainant’s] Request on the DEM’s APRA request form...