Szerlag v. Town of East Greenwich, 122118 RIAGO, AGO PR 18-36

Case DateDecember 21, 2018
CourtSouth Carolina
Szerlag
v.
Town of East Greenwich
AGO PR 18-36
No. PR 18-36
South Carolina Attorney General Opinion
State of South Carolina Office of the Attorney General
December 21, 2018
          Andrew M. Teitz, Esq.           Peter F. Kilmartin, Attorney General.          David J. Szerlag, Esquire          Dear Attorney Szerlag:          The investigation into your Access to Public Records Act ("APRA") complaint filed against the Town of East Greenwich ("Town") is complete.          Your Complaint alleges, in pertinent part:
"On February 1, 2018[,] I filed a request for public records with the Town of East Greenwich that was received by the Town on February 5, 2018. On February 20, 2018[,] I received a response from the Town Clerk indicating that pursuant to the APRA statute the Town was requesting an additional 20 days to fulfill my request. The Town also demanded that I provide a deposit in the amount of $100.00 before they would move forward with a search for documents. [] Although my belief was that the deposit was contrary to the statute the check was provided so as to obtain the records as expediently as possible. On the 20th day I received a response by email relative to my request. [] I was informed that there were 288 pages of records and search and retrieval took 2.5 hours. Additionally the Town did advise that I was entitled to a refund of $34.30. ***
In their correspondence the Town responded that records relevant to Requests 5, 6, 7, and 8 were provided however no documents remotely relevant were attached. I was charged for 288 pages of documents however only 53 pages were responsive. Further, in response to Request #1, checks and Time Sheets had signatories improperly redacted. A final point on this particular request. The statute does allow the public body the right to provide an estimate, however there does not appear to be any provision for demanding a deposit prior to search. *** Lastly in a prior request to the Town dated January 19,20181 requested documents relevant to retention of outside legal counsel. The Town responded providing a copy of a check, again with the signatory redacted as well as a summary invoice for services rendered from the law firm. The Town further indicated that a retention agreement did exist but was exempt from APRA. [] The Town's response appears to be a violation of APRA. The retention agreement may be subject to redaction but the document itself should be available to the public[.]"
         We summarized your Complaint into the following five allegations of violation:
1. Failing to provide documents responsive to categories 5, 6, 7, and 8 of your February 1, 2018 request;
2. Charging for 288 produced documents where only 53 were responsive to your February 1, 2018 request;
3. Redacting signatories on checks and time sheets provided in response to your February 1, 2018 request;
4. Demanding a pre-payment prior to search and retrieval for your February 1, 2018 request; and
5. Withholding a retention agreement responsive to your January 19, 2018 request.[1]
         In response to the Complaint, this Department received a substantive response from Town counsel David M. D'Agostino, Esquire. The response stated, in relevant part:
"Town's Response to First Allegation;
*** The Town responded to the first category [#5] (there were no documents related to Peter Henrikson) with copies of the employment agreements for Fire Chief Russell G. McGillivray and Deputy Fire Chief Michael Sullivan. The Town does not have any other documents responsive to this request.
The Town's document response to the second category of documents [#6] is also attached hereto and incorporated herein by reference and includes copies of relevant policies. On the third category [#7], there are no documents responsive to the request.
Town's Response to Second Allegation;
*** To suggest that the Town responded to Complainant's request but provided too many documents, a majority of which were non-responsive is a specious argument. *** The Town is not obligated to check with the requestor first to determine if the documents the Town feels are responsive, [sic] are 'acceptable' to the request. ***
Town's Response to Third Allegation;
*** [T]he Town's reply is that such information (i.e. a person's signature) constitutes 'personnel' and 'personally individually identifiable' records/information, the 'disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]' *** That a check was issued, or that a timesheet exists (to support hours worked, for example), is the public record; not the signature(s) of the individuals executing the document(s).
Town's Response to Fourth Allegation:
The Town has the right, under APRA to charge a 'reasonable' fee for search and retrieval and copying costs. ***
The records provided demonstrate that the Town Clerk communicated with the Complainant concerning the cost(s) and requested the pre-payment, consistent with the Town's stated APRA Policy. ***
Town's Response to Fifth Allegation:
*** [T]he Town did not provide to the instant Complainant a copy of the Whelan Corrente engagement letter. The Town's position on the matter is that the requested document is not a 'public record' and is otherwise protected from disclosure under the attorney-client privilege."
         The Town's substantive response included the withheld documents for our in camera review.          You provided a rebuttal stating, in pertinent part:
“[]#1
*** In reviewing the request (#5), the language I used could be interpreted in a different fashion than my intent, so my error and I will restate that request in a future APRA request.
In regard to the rest of the documents requested *** (Request #6 and 7) neither the Town nor Attorney D'Agostino have provided these documents nor indicated that they do not have them in their possession. (D'Agostino response does indicate no documents re: written statements).
“[]#2
The Town attached a number of documents including a 144 page Benefit Booklet from Blue Cross that was not responsive to any request made. The request for Blue Cross documents addressed contracts and documents between the Town and Blue Cross as they pertained to 'managed care' of employees not the benefit package provided to them. It is my understanding that the Town has or had an agreement with Blue Cross to manage treatment of employees who were injured in the course of their employment. One would assume that some form of contract or policy would be in place between the two entities.
Other documents that were concerned [sic] non responsive were union contracts entered into between the Town and its employees. Giving the Town the benefit of the doubt one would assume that the Town felt this was responsive to the request for policies and procedures for employees returning to work after sustaining an on the job injury, however there were no procedures or policies set forth in any of the contracts.
[]#3
*** The signatory on a Town check should be the person duly elected or hired for that task and
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