The Attorney General’s Guide To Open Government In Rhode .
The Attorney General’sGuide toOpen Government In Rhode Island6th EditionAttorney GeneralPeter F. Kilmartin
INDEXSection IOpen Meetings ActIntroduction . 1What is the Open Meetings Act? . 3When Does the Open Meetings Act Apply? . 3Notice Requirements . 5The Open Forum . 8When Can a Meeting be Closed?. 8Sample Notification Letter . 9How to Convene in Executive Session . 12Sealing Executive Session Minutes/Voting in Executive Session . 13Minutes . 13Remedies Available . 14Statute of Limitations . 15Where Can a Meeting be Held? . 15Maintaining Order. 16Tape Recording Meetings . .16Answering Your Questions . 16Section IIAccess to Public Records ActWhat is the Access to Public Records Act? . 18When Does the Access to Public Records Act Apply? . 19Determining Whether Records are Exempt from Public Disclosure . 20Settlement of Legal Claims . 28i
Procedures for Access to Public Records. 28Arrest Logs . 30Cost of Copying and/or Inspecting Public Records . 30Records Determined to be Exempt from Public Disclosure and AppealProcedures . 31Remedies Available . 32Continuing Access . 33Compliance . 33Answering Your Questions . 34Sample Request Letter . 34Sample Denial Letter . 35ii
INTRODUCTIONThis manual represents the 6th edition of the Attorney General’s Guide to Open Government inRhode Island and is designed as a reference guide to the judicial decisions, statutes, and AttorneyGeneral findings/advisory opinions relating to the Open Meetings Act (OMA) and the Access toPublic Records Act (APRA). This manual is intended to be used only as a reference guide and isnot intended to be used as a substitute for the actual cases and/or statutes. Members of publicbodies should consult the actual decisions and/or their legal counsel.Through this manual, the Department of the Attorney General seeks to encourage opengovernment by facilitating knowledgeable adherence to the OMA and the APRA. Additionalinformation is available through the Attorney General’s website at http://www.riag.ri.gov.Both this manual and the information on our website, will assist public bodies’ efforts to complywith the mandates of the OMA and the APRA and to assure members of the public thatgovernment will be conducted in compliance with the law.Peter F. KilmartinAttorney General1
Section IOpen Meetings Act2
WHAT IS THE OPEN MEETINGS ACT?The Open Meetings Act (OMA) is a chapter of the Rhode Island General Laws designed toensure that the peoples’ business is conducted in an open manner so that the public mayparticipate in their government and so that government will be accountable to the public. Byconducting the public’s business in an open forum, public bodies gather input from citizensconcerned with the decisions being contemplated. By observing and participating in theirgovernment’s decisions, citizens of this State gain increased accountability from their electedand appointed representatives.Rhode Island’s Open Meetings Act provides for this input and accountability by assuring thatdecisions affecting the public are made in public. The OMA does, however, recognize that alimited number of situations allow public bodies to meet in closed session to best serve theinterests of the public. These limited exceptions to the OMA are specifically defined to protectthe narrow interests served by the exceptions.WHEN DOES THE OPEN MEETINGS ACT APPLY?The Open Meetings Act (OMA) applies when a “quorum” of a “public body” convenes for a“meeting.” Fischer v. Zoning Board of the Town of Charlestown, 723 A.2d 294 (R.I. 1999). Aswith most statutes, each of these terms has a specific legal definition within the OMA.The OMA defines a “meeting” as “the convening of a public body to discuss and/or act upon amatter over which the public body has supervision, control, jurisdiction, or advisory power.”(Emphasis added). See Zarella v. East Greenwich Town Planning Committee, OM 03-02. Ameeting expressly includes “workshops,” “working sessions” and “work sessions.” R.I. Gen.Laws § 42-46-2(a). Proceedings of the judicial branch of government, as well as proceedings inthe probate or the municipal courts, are exempt from the OMA. R.I. Gen. Laws § 42-46-5(c).Some decisions defining “meetings” under the OMA’s provisions are: A Town Council member’s attendance at an informational session was not a “meeting”provided that the Town Council’s members did not collectively discuss and/or take anyaction upon a matter over which it had supervision, control, jurisdiction, or advisorypower. Neubert v. Governor’s Office and Exeter Town Council, OM 98-09.Members of a public body who merely address questions to legal counsel (and whoreceive answers from legal counsel) will not convene a “meeting” provided that themembers engage only in a colloquy with legal counsel and do not collectively discussand/or act upon any matter over which it had supervision, control, jurisdiction, oradvisory power. In re Ethics Commission, ADV OM 00-03.The convening of a subcommittee for a “site visit” was not a “meeting” provided that thesubcommittee did not engage in a collective discussion and/or take other action. Richardv. Richmond Town Council, OM 99-05; Lamb v. Tiverton Budget Committee, OM 9831.3
The convening of members to pay bills was a “meeting” since this action constituted amatter over which the public body had control, supervision, jurisdiction, or advisorypower. Schmidt v. Ashaway Fire District, OM 97-08.The OMA applies to public bodies and to subcommittees that act in an advisory capacity.Solas v. Emergency Hiring Council, 774 A.2d 820 (R.I. 2001).Town council members violated the OMA when they engaged in a series of one-on-oneconversations concerning public business. Legal counsel declined to provide additionalinformation to the Department of Attorney General concerning these conversations, andtherefore, failed to satisfy its burden of proof. Allen v. Claims Committee of the LincolnTown Council, et al., OM 00-22.A meeting may be convened, and a “rolling quorum” created, when members collectivelydiscuss and/or take action via telephone or email. See Loparto v. Lincoln Town Council,OM 06-47; Mudge v. North Kingstown School Committee et al., OM 05-05; In re SouthKingstown School Committee, ADV 04-01.A Fire District violated the OMA when it conducted a meeting through a series oftelephone conversations among committee members. Pare v. Western Coventry FireDistrict, OM 01-06.A social event (breakfast gathering) at which no “meeting” is convened (no collectivediscussion and/or no action taken) will not implicate the OMA and need not be open tothe public. In re Pawtucket City Council, ADV OM 05-01.The OMA defines “public body” as “any department, agency, commission, committee, board,council, bureau, or authority or any subdivision thereof of state or municipal government or anylibrary that funded a majority of its operational budget in the prior budget year with publicfunds.” Political parties, organizations or units thereof are not considered public bodies. R.I.Gen. Laws § 42-46-2(c). The following entities are considered public bodies: Rhode Island Industrial BuildingAuthority, Rhode Island Recreational Building Authority, Rhode Island Port Authorityand Economic Development Corporation, Rhode Island Industrial Facilities Corporation,Rhode Island Public Buildings Authority, Rhode Island Housing and Mortgage FinanceCorporation, Rhode Island Solid Waste Management Corporation, Rhode Island PublicTransit Authority, Rhode Island Student Loan Authority, Howard DevelopmentCorporation, Water Resources Board, Rhode Island Health and Educational BuildingCorporation, Rhode Island Higher Education Assistance Authority, Rhode IslandTurnpike and Bridge Authority, Blackstone Valley District Commission, NarragansettBay Water Quality Management District Commission, their successors and assigns, andany body corporate and politic with the power to issue bonds and notes, which are direct,guaranteed, contingent, or moral obligations of the state, which is hereinafter created orestablished in this state. R.I. Gen. Laws § 42-35-1(b).The Open Meetings Act applies only to state or municipal government. Entities of theUnited States government or multi-state organizations are not considered “public bodies.”Allen v. ASMFC Lobster Advisory Council and Department of EnvironmentalManagement, OM 98-05 (interstate compact composed of states bordering the AtlanticOcean not a “public body”); Pierel v. Center for Substance Abuse Prevention/DHHS andRhode Island Department of Health, OM 98-14 (Center for Substance Abuse Prevention4
is a subdivision of the United States Health and Human Services Department and thus isnot a “public body”).A conglomeration of individual staff members meeting on an ad hoc basis is not a “publicbody.” Weaver v. Department of Environmental Management, Freshwater WetlandsDivision, OM 98-10.The moderator of a financial town meeting alone is not a “public body.” Pine v.McGreavy, 687 A.2d 1244 (R.I. 1997).A caucus session to elect party leaders is not a “public body,” provided the caucus doesnot address city council business. McCaffrey v. Providence City Council, OM 97-18.See also In re Cranston Democratic City Committee, ADV OM 00-02.Members-elect of a public body are subject to the Open Meetings Act. Schanck v.Glocester Town Council, OM 97-03.Where a public body appoints citizens to a committee, the citizens’ entity is considered a“public body.” Finnegan v. Scituate Town Council, OM 97-05.The OMA defines “quorum” as “a simple majority of the membership of a public body.” R.I.Gen. Laws § 42-46-2(d). Findings have applied the OMA to scenarios that on their face do notappear to include a simple majority of the public body. For example: A public body may not utilize a series of communications to circumvent the requirements ofthe Open Meetings Act. D’Andrea v. Newport School Committee, OM 98-11.A quorum may convene upon back and forth contacts made by phone or email. See Lopartov. Lincoln Town Council, OM 06-47.2005 Amendment: “Discussions of a public body via electronic communication, includingtelephonic communication and telephone conferencing shall be permitted only to schedule ameeting.” R.I. Gen. Laws § 42-46-5(b)(1) (active armed services exception).2006 Amendment-Exception: A member of a public body who has a disability (defined inChapter 87 of Title 42) may participate in a meeting via electronic or telephone communicationwhen he or she:(a)cannot attend the meeting solely by reason of disability and(b)cannot otherwise participate without the use of electronic or telephonecommunication as a reasonable accommodation. Participation by a disabled member is subject to rules and regulations and waiver processestablished and determined by the governor’s commission on disabilities. Waiver decisions are matters of public record.R.I. Gen. Laws § 42-46-5(b)(3), (4).NOTICE REQUIREMENTSAnnual Notice: All public bodies must provide written notice of regularly scheduled meetingsat the beginning of each calendar year. This notice shall include the dates, times, and locationsof all meetings, and shall be provided to the public upon request. R.I. Gen. Laws § 42-46-6(a).5
Supplemental Notice: In addition to annual notice, public bodies must post supplementalwritten notice to the public a minimum of forty-eight (48) hours before every scheduled meeting.R.I. Gen. Laws § 42-46-6(b). The public body must also maintain a copy of this supplementalnotice for at least one year and the notice must contain:(a)(b)(c)(d)(e) the date the notice was posted,the date of the meeting,the time of the meeting,the location of the meeting, anda statement specifying the nature of the business to be discussed.The notice must contain a sufficient statement to apprise the public of the nature of thebusiness to be discussed. Rainey v. Warren Town Council, OM 99-01.A statement listing names of featured speakers is not sufficient notice to apprise thepublic of the nature of the business to be discussed. Jutras v. West Warwick SchoolCommittee’s Special Education Parents Advisory Committee, OM 97-16.Although a public body may not mislead the public, the Open Meetings Act does notrequire a public body to identify its intention to vote on a particular subject. Pulchalski v.Charlestown Town Council, OM 99-07.A violation of the OMA was upheld in Tanner v. Town Council of the Town of EastGreenwich, 880 A.2d 784 (R.I. 2005), based on the totality of the circumstances, whennotice for a town council meeting misled the public by advertising that only interviewswould be conducted, however, votes were subsequently taken on the interviewedcandidates at the meeting.Posting of Notices: Annual and supplemental notices, at a minimum, must be posted:(a)(b)(c) at the principal office of the public body holding the meeting, or if no principaloffice exists, at the building where the meeting is to be held, andin at least one other prominent location within the governmental unit, andfiled electronically with the Secretary of State in accordance with proceduresestablished by the Secretary of State.Posting of notice at the principal office of the public body was not sufficient since thenotice was posted on an office door that was not accessible to the public. Banes v. WestWarwick Sewer Commission, OM 98-26B.Posting notice in a newspaper does not constitute “a prominent location within thegovernmental unit.” Hobson v. Coventry Charter Review Commission, OM 99-28.If a public body postpones or continues a meeting, every effort must be made toreschedule the meeting so that notice may be posted at least forty-eight hours in advance.In the event of a pressing circumstance, such as inclement weather or insufficientcapacity of the meeting hall, notice of these changes must be posted as soon aspracticable. Littlefield v. New Shoreham Town Council, OM 99-39; Barber v.Burrillville Town Council, OM 05-02.6
Posting notice on Friday afternoon for a Monday morning meeting violated the OMA byfailing to post supplemental notice for a minimum of forty-eight (48) hours. Graziano v.Lottery Commission, No. 96-4076 (R.I. Superior Court, 2001).Absent evidence of intending to mislead the public, the Town Council did not violate theOMA when newspaper advertisement contained erroneous information since the OMAdoes not require a Town Council to publish notice in a newspaper of general circulation.Pitochelli v. Johnston Town Council, OM 02-07.Emergency Meeting: Upon a vote by a majority of the public body, an emergency meeting maybe convened “to address an unexpected occurrence that requires immediate action to protect thepublic.” R.I. Gen. Laws § 42-46-6(c). In the event of an emergency meeting:(a)(b)(c)(d) a notice and an agenda must be posted as soon as practicable (including on theSecretary of State’s website);a majority of the public body’s members must vote in open session “to address anunexpected occurrence that requires immediate action to protect the public;”the public body must state in open session and must record in its open sessionminutes the reason the meeting is being convened with less than forty-eight (48)hours notice; andthe public body must discuss only the issue(s) that created the need for theemergency meeting.An emergency meeting was warranted where a committee learned one week prior todeadline that it must vote to approve the placement of local referenda on the Novemberballot. The committee violated the Open Meetings Act, however, by failing to postnotice “as soon as practicable.” Toracinta v. Chariho School Committee, OM 96-31.Emergency meeting to prohibit the appropriation of funding for hiring new firefighterswas appropriate to avoid an impending financial crisis. The Town Council violated theOpen Meetings Act by posting notice after the emergency meeting was convened.Macchioni v. Johnston Town Council, OM 99-31.A council member’s telephone calls to other council members regarding possiblelocations for a new football stadium were not necessary to the “public welfare.” Natalyv. Exeter Town Council, OM 97-12.An emergency meeting may be called when the public body must address a matter withinforty-eight hours; otherwise, the matter may be timely advertised and is not consideredemergent. Staven v. Portsmouth Town Council, OM 03-01; McGreavy v. MiddletownSchool Committee, OM 02-23.Amending the Agenda: By a majority vote, a public body, other than a school committee, mayamend its agenda to add items. The additional items shall be for informational purposes onlyand may not be voted upon except when necessary to address an unexpected occurrencerequiring immediate action or to refer the matter to an appropriate committee. R.I. Gen. Laws §42-46-6(b).7
2001 Amendment-Exception: A school committee may amend its agenda, provided thefollowing requirements are satisfied:(a)(b)(c)(d)(e)the amended agenda is posted at least forty-eight (48) hours prior to the meeting:(1)on the school district’s website and(2)i
Supplemental Notice: In addition to annual notice, public bodies must post supplemental written notice to the public a minimum of forty-eight (48) hours before every scheduled meeting. R.I. Gen. Laws § 42-46-6(b). The public body must also maintain a copy of this supplemental notice for at least one year and the notice must contain:
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