 Welcome. My name is Mike Yelnosky. I'm the Dean of the Law School and it is with mixed emotions that I welcome you here this morning. This is sort of the first major event we've had at the law school since the untimely passing of our President Don Farrish. So there are still some some heavy hearts here. But this event for me is is very exciting because it kind of kicks off the law school academic year. In just a couple of weeks in this very room, 160, 170 new law students will be given the oath of professionalism by Chief Justice Satel, who's not here. I was I just waved to where where he will be standing when he swears them in. So I'm very I'm very excited about that as I say this this sort of kicks off our academic year. This is also an exciting day for us because it's the first major event that we've had in this courtroom since it's been dedicated to Judge Celia, whose portrait you you see behind me. It's great to see so many alums in the audience. Always nice to welcome you back and to see you doing such great work. Two terrific alums will be leading you through the day and it's always a pleasure to get to see them and get to hear them talk about this truly important body of law. This is also a time when I can feel completely comfortable that I will not be the only lawyer in the room without socks. I proudly put my socks aside this morning because I know I'm not gonna get called out. And finally this is an opportunity for me to welcome my good friend, the law school's good friend, the university's good friend, double hawk, Attorney General Peter Kilmartin. This will be his last open government summit as AG and I want to congratulate him on the great work that he's done in his almost eight years in office and particularly the work that his office has done around open meetings and open records. So with that, I think I'm asking the AG to take over the podium and I turn you over to the very good folks at the AG's office and I hope you have a great day and hope to see you all around. Thank you. Thank you. Before I give my words, Dean, if I can ask you to just step up for a minute. Number one, I want to thank you on behalf of the office and the almost 750 give or take people who are here plus all the folks live streaming for hosting this since 2000. This is our 20th Open Government Summit and Roger Williams has hosted all but one of them. So that's a testament to the commitment that you continue to this topic and to the citizens of the state. So on behalf of the office, I just want to thank you and just give you a small token of our appreciation. Thank you. So the Dean did mention President Farish and his tenure in mind started almost simultaneous and about two weeks before he passed away it actually said to my assistant well I need to get together with the president and we can kind of commiserate over dual tracks if you will and sadly that did not happen so if I can just take a minute and ask that we just bow our heads in his memory. Thank you. So I thank the Dean as always and before I get into some of the the nuts and bolts of this I'm gonna do my thank yous first because clearly this does not happen even with just Mike and Lisa who really as you all know and they're the ones I give the credit to for making these numbers just increase every year by the depth of their knowledge the quality of their presentations and Mike Field and Lisa Pincenot every time I hear somebody mention anything about open records or what they do they are just ranked right up there in the top as far as knowledge and information so I want to personally thank them for all you've done during during my eight years here so thank you and they will be the first to say it doesn't happen without the help of Karen Raghoster and Rachel Hurd who are both in the office and in this case this year our three interns Merritt Folcarelli Emily Corio and Mitchell Ramick they are all here you met them as you checked in and our interns which Roger Williams in the law school send many to us we could not do a lot of what we do without their help and input so we thank them for that the other person I would like to bring up at this time is Jay Rosenfield Jay is from Clark base and he has been streaming this now we're trying to debate it whether this is the seventh year or eighth year but this is streamed live and so again testament to the folks who are in attendance 750 or so but it's still streamed live and you can get it on our website and that doesn't happen without Jay and his volunteering to do this at no cost to the state or the university or anyone so where is Jay come here Jay please Jay and as a small token of appreciation I just want to give you that thank you so this is as I stated our 20th summit and it began in 1999 under then Attorney General Sheldon Whitehouse and who had the vision to do it and thankfully all of his successes have had the the good thoughts to keep it moving and growing and in that first one there were only 150 folks who attended so I think it shows the importance to Rhode Islanders why we do this I know it shows the importance to the cities and towns and attorneys and police departments and town clerks and all the folks who are here today and watching today knowing the importance of open government and open records in APRA to everyone in the state of Rhode Island it makes us a better state a few years ago in 2012 I believe it was we updated the legislation for that with the backing of the office to create the balancing tests that so many advocates wanted and so we have really moved this forward in my opinion in the past few years that doesn't mean we should stop moving it forward we should and decisions are part of that process which is why you are all here today you will hear about recent decisions from both the Supreme Court and within the office itself and it is a continuous process and I do think that is why it's grown I think that's why it's important and I think it's important to reinforce that not just by being here but in the jobs that we do in trying to say you know something boy I really don't want that public but it's better to be public than not public it's better for people to find out openly and honestly about something good bad or indifferent because that way anything can be addressed and be worked through and I am a firm believer in that that anything can be addressed and be worked through and part of that is being open so I thank you all I thank you all for your support for this on behalf of the staff who work so hard to make it happen and now what you really want though is to hear from them so you get your CLE and not from me do not deduct deduct my time for your CLE and I will tell the dean that if it keeps growing like this no I am not going to give you Google money to build a new building to accommodate us but we do thank you for doing so so thank you enjoy your morning I just want to add my thanks to to the deans the law school to Chelsea Horn and obviously to the AG for the past eight years and all the support that you provided and all the guidance and direction regarding access to public records and open meetings and you know I also both the AG and the Dean mentioned President Ferris I just want to recognize President Ferris also he's really in this room with us heartfelt in the word that's always come to mind with President Ferris for me has been he's a gentleman so you know I appreciate the sentiments and I know that the law school and the university does also we've handed out a booklet today we're at least not going to be referencing that booklet you know our goal today is obviously to provide as much information as we can to you regarding the open meetings in the public records act but also recognizing that we're going to throw a lot of information at you today and we're going to try and highlight some of the more important things that we really think that you need to leave here with some of the real basic principles starting with the access to public records act we start with really two threshold questions whether the access to public record act even applies to you whether an access to public record act request has to be fulfilled and the first is are you a public body has the request been made to an entity that is a public body and the definition starts off very broadly I think it's pretty self evident that most of you know that your parts of public bodies it starts off as any executive legislative judicial regulatory or administrative body of the state or any political subdivision but then we get into this part that's here which says it also includes any other public or private agency person partnership corporation or business entity acting on behalf of and or in place of any public agency so just because a document is maintained by let's say a private person doesn't or private entity doesn't mean by itself that it's not subject to the access to public records act most of the cases here are really the fact-specific type of situation where we try to determine whether or not an entity is subject to APRA or not and it does get very fact specific how is the entity created what's their authority some factors such as that the town of extra cases a little bit interesting and we're to talk about that case in conjunction with another case in a slide or two but that was a case where an APRA request was made to a member of the town council wasn't made to the town council but made directly to the member and we held in that case that the member of the public body itself was not a public body the request should have been made to the public body and we'll talk more about that in a moment and you'll see how that plays out but that's the first thing is it made to a public body we had a case a couple years ago that also really demonstrates this principle request was made to the city of Providence for records maintained by one of their outside legal counsel the legal counsel maintained these records in their private law office they were never in the city of Providence offices we held that even though they were maintained by a private person subject to this clause up here that they were subject to the access to public records act those records were maintained by a private person on behalf of or in conjunction with the city of Providence in their work so just because the records are not physically within your four walls doesn't mean that they're not part of the access to public records act this is probably one of the more important slides because I think it starts to really hone in on what the public record law is all about and it starts to get public bodies in trouble pretty quickly if they don't do what they're supposed to do or interpret the request in the proper fashion rhetorically let me start to ask whether or not it matters who is making a public record request when you get a public record request doesn't matter what they're asking the records for your answers to those questions should be no it doesn't matter who they are doesn't matter what they're asking for the the reason they're asking for the records and this starts to really develop a theme that we're going to see with the access to public records act if something is a public record it doesn't matter who's asking for it doesn't matter why they're asking for it it's public to everybody okay and we see that with the bright giant the J. Brian day case we had last year this was a case where J. Brian day was a business entity one of their motor vehicles was involved in a motor vehicle accident they asked from the city of Pawtucket for the name and registration and address of the person who was involved in the motor vehicle accident because they wanted to serve process upon that upon that person we held it was not a public record okay J. Brian day was adamant that they had a public interest in it that they had a self-interest in it but that wasn't the issue that was before us again as I just asked rhetorically before doesn't matter who's asking for the records no it doesn't the inquiry isn't whether those were public records to J. Brian day whether they were important whether J. Brian day had a public interest in them the question was whether there was a public interest to everybody for that name the home address the registration number and when we looked at it from that point of view the the question and the analysis certainly provides that answer no duty under the Access to Public Record Act to answer questions you need to be really careful about this there are certainly some public record requests or some correspondences I should say that are made to public bodies under the auspices of the Access to Public Records Act but they're really not seeking records they're asking questions some of them are surveys that's not subject to the Access to Public Records Act what subject to the Access to Public Records Act are your records request for records now you need to be a little bit careful because the Pearson case was a situation where the Coventry Board of Canvassers received a request it was sort of delivered or written as a request for answers to questions but we determined that when you looked at the totality of the document the questions could have been answered through providing documents in that type of situation we said there are no magic words to to make an app or request you don't have to say or the citizen doesn't have to say I hereby make an Access to Public Record Act request if it's a situation where arguably it was an interrogatory form but the answer can be provided through providing documents the public body should provide the documents and in Pearson that didn't happen so we said that that was a violation and the other real important point is providing documents not narrative summaries and again Access to Public Record Act concerns providing documents not answers to questions not narrative answers or written answers the best case that really exemplifies this principle is a case that we had a couple years ago with the Department of Corrections and inmate had requested from the department what the ending balance was in a certain account and the Department of Corrections responded just in a narrative form providing the answer to that inmate's question we said that that was a violation because even though the information was conveyed accurately the inmate was or any person for that matter was entitled to what the actual documents were so if you're in a situation where you know you certainly can provide a narrative response but you have to provide the documents if you have the documents we have a lot of situations where a public body won't have the documents and they'll just provide a narrative response because they don't have the documents that's okay but make sure you're explaining we're not providing you documents because we don't have the documents but here's the answer to your question okay the next two slides kind of run in tandem we go back to the town of the extra case we've had situations before where public bodies will say well we have the document on hand but we didn't create it somebody gave it to us somebody sent it in therefore it's not subject to APRA that's not correct APRA concerns all documents that are maintained or kept on file by the public body doesn't matter if you created them doesn't matter if you acquired them okay so having them in your possession brings them within the ambit of the Access to Public Records Act and as we talked about a slide or two ago even if they're not within your four walls if they're maintained by a private entity working on your behalf or acting on your behalf that may still subject them to access the Public Records Act and every person who makes a request has the right to inspect or copy them okay if somebody just wants to inspect them and not copy them they have that right under APRA I think there are a lot of requests that are made or some requests that are made that say you know I don't want to copy them because I don't want to pay for that charge I just want to pay I just want to inspect them under the belief that there will be no charge and there may very well be situations where that's accurate we'll talk about charges a little bit later but just because somebody's requesting to inspect the records doesn't by itself mean that there won't be a charge this there's definitely certain situations where a document has to be reviewed may have confidential or exempt information before that person inspects it so an inspection by itself doesn't automatically eliminate the whole cost issue and going back to the town of Exeter in the Tiverton case that hey I had implied or referenced a little bit earlier again town of Exeter was a case where somebody was seeking documents maintained by a particular town council member the request was made to the town council member not to the public body we said the individual member was not a public body therefore the request wasn't valid the town of Tiverton case was a situation where the request was made to the town council again looking for records maintained by the by that member we said that that was a public record request and that the town had an affirmative duty to obtain those documents from the town council member okay the Tiverton case the town council didn't have the documents the the town council member had them in their possession presumably at home or whatever it may have been so there was just because the town council didn't have those documents under the clause that I had showed earlier about extending the applet to other entities acting on behalf of or in place of the public body that subjected to those documents and then public record so what is a public record what is subject to the access to public records act it starts with what I think you all probably envision paper documents videos audio recordings it really has nothing to do with what the substance is because after listing a whole bunch of types of documents that are subject to the public record law the access to public record act makes clear that it also extends to any other material regardless of the physical form or characteristic that's made or received pursuant to ordinance or law in the official transaction of business so it can be anything and the last clause regarding made or received pursuant to law or ordinance was the subject of the Supreme Court opinion in Pantarelli which came down in January I don't think that Pantarelli is really too surprising but it does put a little bit of glass on this Pantarelli had made a request to the Department of Education for records relating to the private law practice of a right employee okay so maybe there were records relating to a right employees private law practice that were maintained within the four walls of right maybe there weren't the opinion never really even makes clear whether or not there were there weren't but the Rhode Island Supreme Court says it doesn't even matter if right maintain those documents or had those within the four walls because those private law records don't relate to or were not made or received pursuant to law or ordinance or in connection with the transaction of the official business of right so just because those documents may be maintained doesn't mean that they're automatically public records so that really starts the basis in the foundation for the access to public records act does it apply when does it apply the rest of the access to public record presentation Lisa and I are going to talk about how to determine whether or not something is a public record and then there were certain procedural provisions that have to be complied with under the access to public records act how do you determine whether or not something is a public record well there's really two questions to that anybody who's been to these summits before has heard me go through the analysis the two questions are one does it fall within one of the 27 exemptions okay there's 27 exemptions in your booklet they begin on the bottom of page eight it goes all the way through page 12 may just want to take a look at it because this is part of what we want to make sure that you're able to leave with after today they're labeled a through double a and those are the 27 exemptions if a document falls within one of those 27 exemptions it's exempt from disclosure okay if it doesn't fall within one of those 27 exemptions you go to the second step which is balancing test we'll talk a lot about the balancing test in a little bit but the balancing test is does the public interest outweigh the public the privacy interest or does the privacy interest outweigh the privacy if the privacy interest outweighs the public interest that document is exempt even though it doesn't fall within one of the 27 exemptions or the portion of the document that implicates the privacy interest is exempt again we'll go through that more depth in a couple moments again we've talked about this slide at other open government summits I think there's a little bit what I like about this slide actually is that it talks about confidential documents exempt documents public documents and it really lays out what the difference is just because a document is exempt doesn't mean it can't be given out by a public body okay falls within the balancing test or one of the exceptions that I just talked about it's exempt from disclosure the public body doesn't have to give the document out but it still can give the document out okay it's exempt if it's confidential there are certain records that either state law recognizes or federal law recognizes to be confidential medical records are a great example those can't be given out by law there's a penalty to give those out in Rhode Island 911 tapes it's a criminal act to disclose a 911 tape in Rhode Island those can't be given out there's no discretion whatsoever those are confidential and then everything that's not either confidential or exempt falls within the public area those documents have to be given out okay so you go from no discretion to discretion to again no discretion it must be given out and then the last thing before turning it over to Lisa any reasonable part of a document must be given out I guess to say it in a different way if a document or if you're going to exempt a document under the Access to Public Records Act in total in your denial letter you must state that no reasonably segrable portion of the document can be given out and I think that's a great great opportunity a great point to kind of stop and think don't just mechanically write down there's no segrable portion of this document that can be provided think about it it's that last chance to provide a reasonably segrable part of the document if a reasonably segrable part of the document can be provided and a big part of this is you know how general is the request if somebody's looking for one of the better examples from a couple years ago was a request for accident reports made by the state made to the state police somebody had requested a month's worth of accident reports the state police exempted them all in total what they should have done and what we said they should have done was redact the personally identifiable information who was involved the address the registration numbers but then provide all the non identifiable information that would have protected the privacy interest but still provide provided information to the public and you see the Harris case that's really what city of Providence did earlier this year there was a request made for the mayor's schedule I think it was over a year period of his schedule or a year and a half and the city of Providence went through every entry entry by entry they provided the entries that should have been provided and then they redacted such things as people who the mayor had interviewed but who had not been hired certainly they had a privacy interest certain meetings regarding attorney-client privilege in the subject matter of those meetings were redacted that's the time of type of literally a line-by-line analysis that you do sometimes have to do with these types of situations as Mike mentioned there are 27 exemptions we're going to discuss some of them ones that we see in our office most often individually identifiable records are exempt only if the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to the Freedom of Information Act now notice the word clearly it's not just an unwarranted invasion it's a clearly unwarranted invasion so it's a bit of a higher threshold this is the second balancing test we see in the act recall Mike talks about weighing the public interest against the privacy interest so this is here again we see that a public body will need to weigh and balance that now if you are a public employee any document containing any or all of these 15 categories of documents are public so they include such things as your gross salary your employment contract your city or town of residence that's all public information you see we put the asterisks there because these categories of documents also apply to contractors and subcontractors working on public works projects that are required to be listed as certified payroll exemption be exempts trade secrets and commercial or financial information obtained from a person firm or corporation which is of a privileged or confidential nature so these are proprietary documents we had an interesting finding in Harris there the complaint requested deposition transcripts that were taken during a civil case now these transcripts were not filed in any court so we needed to decide whether unfiled deposition transcripts in a civil case were public records under the appra now we observed that if deposition transcripts were public records accessible through the appra than any person including a party to litigation could obtain such a transcript through the appra rather than from the stenographer so we concluded in this context the unfiled transcripts represented financial or commercial information and we had no doubt that the dissemination of deposition transcripts under the appra with a maximum amount that you can charge is 15 cents per page would cause substantial harm to the competitive position of the stenographer also the Rhode Island Supreme Court has previously observed that the appra was not designed to provide an alternative method of discovery for litigants now exemption H exempts reports and statements of strategy or negotiation involving labor relations or collective bargaining in the Lombardo case the complainant requested all public documents concerning the master agreement between the town of westerly in the international brotherhood of police officers the town exempted numerous documents under H the complain argued that since the negotiation process regarding the master agreement had terminated all documents relating there to the negotiation process should be public the complain alleged this exemption only applies to current or ongoing negotiations or collective bargaining but we found no such limitation under the act we reviewed a voluminous amount of documents in camera and determined that there were five documents totaling eight pages that our department did not agree fell within the purview of exemption H because they simply could not be characterized as reports and statements of strategy or negotiation we directed the town to release these documents within 10 business days and the town complied there's a exemption in the access to public record act pertaining solely to law enforcement records records maintained by law enforcement are exempt from public disclosure but only to the extent that they fall within one of these following six categories and you see reasonably be expected to interfere with investigations or enforcement proceedings deprive a person of a right to a fair trial reasonably be expected to constitute an unwarranted invasion of personal privacy and you know we've been talking about referencing the balancing tests and you know I want to keep you here so again we're going to talk about the balancing test in more detail a little bit uh... but this balancing test i think it's the case that cited underneath by the real supreme court from a couple years ago examine this balancing test for the first time and what the supreme court said i think has applicability not just a law enforcement but to everybody uh... again it's not even talking about these balancing tests some of them are in the law enforcement context some of them are in other contexts what the supreme court said in the providence journal case is that when you have the balancing test the public body can ask the person who's making the request to state what the public interest is in disclosure so you're going to be left with this balancing of balancing the public interest balancing the privacy interest when you have to balance that product that public interest we do it all the time i would suggest that you do it ask them what the public interest is in disclosure okay that helps you do what your job needs to be done helps you do what you're gonna have to do you're gonna have to balance ask them what the public interest is in balancing sometimes it may be self-evident to you but there's a lot of situations where the person making the request may know something that you don't uh... at the very least it creates a record if that decision if your decision gets challenged later on uh... so you may want to think about that and then the other three exemptions uh... disclose confidential sources disclosed techniques or law enforcement investigations or prosecutions or in danger somebody's life for physical safety uh... law enforcement should take notice there is no exemption here for an ongoing investigation that doesn't mean that there that records relating to ongoing investigations are all the time public uh... my guess is that pursuant to the first exception uh... a lot of those records are going to fall within the reason we'd be expected to interfere with investigations of uh... criminal enforcement or or um... or activity proceedings that's the exemption you should be citing not some exemption for ongoing investigation there is nothing for ongoing investigation uh... notwithstanding what i've just talked about records that relate to the management direction of the law enforcement agency and records that reflect the initial arrest of an adult are public records even if those are ongoing matters so if somebody's arrested if an adult is arrested that initial face sheet and that initial narrative report those are public records now there may be some material within those records that can be redacted but by and large those are public records have to be provided something else i was gonna add now just let my mind uh... but those are public records have to be provided uh... when the arrest is of an adult even though those are ongoing investigations uh... adult arrest logs so everything within the access to public records act has to be responded to within ten business days subject to a twenty business day extension the one exception are arrest logs arrest logs will talk about what those are on the next slide but arrest logs have to be made available within forty hours of a request or seventy two hours if the request is made within uh... was made on a weekend or a holiday and this timeframe only applies to request made for arrest logs five days prior to the request so if i go into law enforcement uh... office if i go into the bristol police department make a request for a week's worth of arrest logs i have to uh... be given days one through five the last five days within forty hour seventy two hour time frame and then day six and seven i still are i still get those are still public records but not subject to this forty hour slash seventy two hour time frame that's subject to the ten business days slash twenty business day extension time frame and again this just lays out exactly what is an arrest log to the extent that these records are maintained uh... and law enforcement has them they have to be disclosed within the time frame that i've just talked about and then incident reports we talked about arrest reports and how those are public records and have to be provided incident reports are reports that don't generate an arrest okay there's no problem will cause for an arrest we've said in those types of situations when a request is made particularly when the request is made for a specific in an identifiable arrest uh... arrestee back that up made for a specific and identifiable person that there has not been an arrestee there is a presumption that those records are exempt okay that was the the connolly case here where um... happened to be juvenile in this case which kind of brings in the whole nother layer but even putting the whole juvenile situation to to the side uh... there was an incident report relating to a specific identifiable person uh... the request was made for that there's a presumption that those records are exempt doesn't mean that they're always exempt there certainly could be situations where that presumption is rebutted certainly can be situations where somebody request multiple incident reports and identities can be redacted uh... such as we talked about earlier uh... but in general that's the the general rule with respect to incident reports exemption jay exempts any minutes of the meeting of the public body which are not required to be disclosed pursuant to the open meetings act so this refers to properly sealed executive session minutes that your public body convened into executive session for a proper purpose so if you forget to seal your minutes or you choose not to seal your minutes they are subject to the opera we have directed public bodies to release sealed executive session minutes because they did not convene into executive session for a proper purpose in other words if you are in executive session for improper purpose the matter should have been held in open session in the snappy case we issued a violation against the warwick school committee when it discussed a non-noticed item in executive session more specifically the school committee discussed a rote island department of education or ride decision and whether or not the school committee was going to appeal that decision the school committee claimed that the appeal period was running and that they needed to make the decision as soon as possible but it was unclear to our department why the school committee could not have scheduled a special meeting to discuss that decision and potential appeal exemption k exempts preliminary drafts notes impressions memoranda working papers and work product you see we've underlined this latter section as this language was added in last year's legislative session we had a couple of findings last year concerning this preliminary draft exception in vittkevich versus the department of transportation the complaint was seeking documents related to those blue road works signs that are at different locations throughout the state which indicate whether a road works project is on time and on budget he was seeking among other things the cost of the signage design construction and installation right now acknowledge that it had one responsive document but contended it was exempt under k because it was a preliminary draft right out represented at the withheld document represented a running tally of the signage already installed it had not yet been finalized we noted that the word draft was appended to the document although we have held consistent with the road on supreme court that affixing the word draft to a document does not make it dispositive we look to the substance not the labels and we concluded that right out's interpretation that the running tally of signage costs could be withheld indefinitely so our view made clear that the withheld document represented a snapshot in time and indicated certain costs at that moment in time the fact that additional future costs may be incurred does not make that document a draft and we directed the right out to disclose the document in heartly the complainant requested a copy of an audio recording from one of coventry fire districts open meetings the fire district denied the request indicating that the clerk keeps a tape recording of meetings as his notes or working papers to be used in preparing the formal minutes so they alleged that the tape recording was a draft our department disagreed and concluded that since the audio recording was made in connection with the fire district meeting and was made to assist the clerk regarding the official minutes this audio recording fell within the definition of a public record additionally although the tape recording may be used as a mental aid for the clerk it contained no mental impressions the audio recording provided a verbatim accounting of a recorded event so we directed the fire district to disclose that audio tape however if any of those categories of documents the preliminary drafts notes impressions are submitted at a public meeting and they do become public documents continuing with a few more exceptions exemption M exempts correspondence of and to elected officials with or relating to those they represent and correspondence of and to elected officials in their official capacity exemption P exempts all investigatory records of public bodies pertaining to possible violations of statute rule or regulation other than final action taken now again an example of this is our department receives after complaints open meetings at complaints at our investigation including the affidavits we receive our legal research our handwritten notes are exempt as investigatory but our ultimate findings are public same with our consumer protection unit they receive complaints from consumers regarding stores products services their investigation would be exempt except if they took any action against the offending party now exemption S this is the red light this exempts records reports opinions information statements that are required to be kept confidential by federal law regulation state law or rule of court so that's that third category of documents that must not be given out we had a case a few years ago where we held that the state police uh... correctly withheld a document from disclosure because if they had disclosed that document would have violated the homeland security act so when you're doing a public records analysis it's important not only to look at the twenty seven exemptions but other state and federal court cases and statutes that will get mandated through the act we issued a recent finding in paiva versus the department of corrections here an inmate wanted certain information contained on two correctional officers employment applications this inmate is serving a life sentence so that implicated the so-called civil death statute which states every person imprisoned in the adult correctional institutions for life with respect to all civil rights in relations of any nature whatsoever shall be deemed dead in all respects as if his or her natural life had taken place at the time of the conviction prior to us issuing this finding the brown supreme court issued uh... or examined the statute in gallup versus the adult correctional institution in gallup the supreme court dismissed a lawsuit that alleged state law claims on the basis that gallup had been sent sentenced to life in prison and therefore by operation of law was civilly dead the supreme court affirmed as such we held that the civil death statute applied to mister piva because he was sentenced to life in prison he no longer per possessed most commonly recognized civil rights and we had no trouble determining that in accordance with gallup his right to file an opera complaint had been extinguished indeed if our office had found his opera complaint meritorious the remedy would be to file a civil lawsuit superior court on his behalf a remedy that gallup gallup uh... made clear was terminated exemption z exempts any individually identified evaluations of public school employees may pursuant to state or federal law or regulation and this this was modified approximately two weeks ago in the general assembly before it was just teachers now it's all public school employees those are some of the twenty seven exemptions again we kind of showed you where they are in the book i think it was pages eight through twelve to the extent that a document falls within one of those exceptions it's exempt from public disclosure doesn't mean it can't be given out just means it doesn't have to be given out it doesn't fall within one of those twenty seven exemptions now we go to the balancing test does the privacy interest outweigh the public interest or vice versa uh... the dare case was where uh... the supreme court actually had established a balancing test prior to dare but they re-articulated it reaffirmed it and dare the Harris case and the Gannon case let me just set out the facts of those two and then we'll talk about i guess you can rhetorically ask how you think we should come out and then i'll tell you how we came out and we can decide whether or not we got those right or wrong the Harris case was a situation where there was a surveillance videotape made of an assault on a person and that videotape was played at a providence hearing uh... in open session so that was the facts of Harris and Gannon was a situation where request had been made for invoices with certain people's names on them people's whose names on them were redacted by the city of providence i'm sorry by the city of Patucket and uh... those were names of people who the city had hired as temporary employees uh... so those are the facts of Harris and Gannon i keep referring to this balancing test and you have to weigh the public interest you have to weigh the privacy interest but what exactly is the public interest what exactly is the privacy interest that you're weighing and this slide and the next slide articulate really what those two principles are uh... the public interest was set forth by the supreme the u.s supreme court in a case called reporters committee uh... this is the seminal freedom of information case by the u.s supreme court some of you may be saying well i'm here for apra i'm not here for the freedom of information act uh... which is the federal version of the state access to public record but i would i don't supreme court has said that our apper is mild after the freedom of information act so that's why we're referring to it and in this case uh... reporters committee a uh... reporter had made a request for a bc i report or a month a uh... uh... criminal history for that the supreme court actually calls it a rap sheet of a person's uh... criminal history record and that person had had some interactions with the congressman and what the u.s supreme court said was that rap sheet of that bc i report was exempt from disclosure wasn't a public and it wasn't a public record because there was no public interest or at least the privacy interest outweighed the public interest and the court focuses on what the public interest is and you know i don't like reading too much from from other opinions but what the u.s supreme court said really hones us in and should really hone you in on what your focus is when we talk about the public interest uh... the u.s supreme court said that the freedom of information act and obviously in our case the access to public record act focuses on the citizen's right to be informed about what their government is up to official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose that purpose however is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct and then a couple paragraphs later the u.s supreme court really hones in on this even more and it says conceivably the rap sheet would provide details to include a new story but in itself this is not the kind of public interest for which congress enacted the freedom of information act in other words although there is undoubtedly some public interest in anyone's criminal history the sent the freedom of information the freedom of information act central purpose is to ensure that governments activities be open to the sharp eye of public scrutiny not that information about private citizens that happens to be in the warehouse of the government be so disclosed so that's where our focus is on how does this information that i'm being asked uh... to disclose how will that shed light on government operations on our statutory duties not is it interesting not will it as the jay brian gay case shows not will it help that particular person but how does this shed light on the public interest on how we operate as government uh... so that's what the public interest is uh... when we get to the privacy interest i think that's a little bit more identifiable just upon all of our all of our experiences uh... where the document concerns a private citizen the privacy interest is at its apex and again this is where that whole redaction and the whole recently seeable comes into play if the document can be redacted then it has to be and you you protect the privacy interest while at the same time providing the public with what the public is entitled to uh... favish is a case that really exemplifies this it's probably a case that sadly most of us are probably still familiar with president clinton's then legal counsel vince foster had committed suicide this was in the midst of whitewater investigations there was obviously in investigation into mister fosters death he was at the time legal counsel to the president and somebody who the court opinions identifies as a sometimes considered conspiracy theorists asked for death scene photographs that were taken of the scene in the u.s supreme court consistent with everything we're talking about said no uh... the privacy interest is really at its apex in this type of situation obviously it was a situation where the documents could not have been redacted they were concerning one person even if the reports or photographs could be redacted you still know who the person is uh... what's interesting about this case also is that at death mister foster just like in red island has no right to privacy the court didn't focus on mister fosters right to privacy they thought they focused on the survivors right to privacy to uh... not be uh... inundated with these types of images and they still discern determined that that type of privacy interest was at its apex uh... so going back to the question i posed a couple moments ago the harris case in the ganning case uh... harris again was the case where a videotape or surveillance video of somebody being assaulted uh... was recorded and played during an open session we said that there was a significant privacy interest in that and there was no disclosing that image disclosing those images of that video didn't shed light on any government operations at least on the evidence that we had uh... so in that case we said that that video was exempt from disclosure uh... the ganning case we said that the names had been improperly redacted uh... there had been not just some accusations but some evidence that had been been put forth that we felt tip the scale uh... on the public interest side uh... to know who the city had hired how much they had paid and you know quite frankly when you talk about the privacy interest even though there were names of of private people who had been uh... hired and are in these documents the privacy interest when you talk about somebody who's being hired by government and paid by government at least in that context is relatively minimal compared to some of these other types of privacy situations that we've seen uh... so that's kind of the balancing test uh... again when the public interest versus the privacy interest and if you can redact or the document's reasonably segrable and you have to do that now a public body cannot require as a condition of fulfilling of app requests that the person provide a reason for the request or provide personally identifiable information so this means a person can make an anonymous app request now every public body shall establish written procedures regarding access to their public records you can have a procedure that requires your public records request be submitted in writing but you cannot require a written request if the document is available pursuant to the administrative procedures act or if it's readily available or prepared for the public in Oliver versus the run commission on the deaf and hard of hearing the complain alleged that the commission violated the apper when it failed to respond to her apper request the evidence revealed that she emailed commissions executive director and we determined that the commission did not have any apper procedures in place so we treated the complaint's email to the executive director as a proper app request because the commission did not respond in any capacity we found a violation and i think this highlights the fact that having an apper policy or procedure in place benefits both the public and the public body so when you go back to your agency's you should double-check your apper procedures our department's apper procedures are on page forty one of your book so you should feel free to use it or parts of it now your written procedures must include the identification of your public records officer or unit how a citizen can make a request and where the citizen can make that request you can certainly have a public records request but a person requesting the records cannot be required to use your form as long as their request is readily identifiable as a public records request a copy of your apper procedures must be on your public bodies website if your public body maintains one and it must be otherwise readily available to the public so when you get an access to public record when you get an access to public record request don't just put it on the side of your desk and hope it works itself out uh... it won't i have a whole pile of my desk of things that have that that go in that pile but apper requests are not one of them one of three things has to be done within ten business days of receiving an apper request either have to provide the documents within ten business days provided denial within ten business days or extend the time to respond in writing within ten business days one of those three things has to be done within within ten business days of your receipt uh... much is a case where the town of north kingston complied in part but then never finished complying within the ten business days uh... we found that that violated the access to public records act we actually filed a lawsuit on that behalf resulted in a monetary fine uh... so this is one of the areas where it's just you know it's easy to come it's easy to comply just make sure you respond within those ten business days uh... next couple slides for all three of those options really talk about what has to be done or what can be done uh... for all three of those if you're going to deny the records uh... whether it's within ten business days or otherwise it has to be done in writing you may have procedures that allow for an oral app or request uh... Lisa talked about that in limited situations where the documents are readily available or available under the administrator procedures act you can't require a written request even if you get an oral request for access to public records you have to respond in writing so every denial has to be in writing you have to state the reasons for the denial we talked about the balancing test talked about the exceptions and indicate the procedure for filing an appeal uh... which is articulated in thirty eight dash two dash eight those procedures are to either file an appeal with the chief administrative officer of your public body that's defined as the highest ranking member of that public body file a complaint with the attorney general's office or file a lawsuit in superior court and somebody doesn't have to exhaust their administrative remedies they can from your denial go right to superior court uh... we'll talk about in a slide or two about training but the person who denies or provides access has to be authorized uh... under the access to public records act so make sure that person has done the training has submitted their certification uh... and we'll talk about that in a moment uh... the procedures for that have to be followed prior to providing the records uh... i don't think there's anything too crazy here apra used to say that you had to provide an estimate regardless of whether there was a request or not that has since been amended so upon request you have to provide an estimate upon request you have to provide a detailed itemization of the charges uh... search retrieval has to be done within a reasonable period of time and although you certainly have the option to waive search retrieval and photocopying costs if a court orders you to do so you have to do so uh... again i don't think there's anything too shocking with that the procedure to extend time again this has to be done in writing and you have to state the need uh... for uh... for the extension in writing it has to be one of these three things uh... that elicit the voluminous nature of the request the number of requests that are pending or the difficulty in searching for retrieving documents and the green bomb case is a situation with the city of providence uh... basically copied language from the statue to extend the time uh... in type in sort of a boilerplate language situation we have that violates the access to public records act the access to public record says you can extend time for twenty business days but it has to be specific to the request no boilerplate requests uh... so make sure that you know it's there's something that shows that it's specific to that particular request if the person who is authorized to do uh... to to deny and grant access to records happens to be away on vacation or whatever it may be their absence does not constitute good cause to extend the time for access to extend the time to reply uh... so if you're going to be away particularly if you're going to be away for an extended period of time or there's illness make sure you have somebody to cover that make sure you may be a really good idea to have somebody who's already have multiple people who's already authorized to grant access and to deny access a public body is permitted to charge for photocopies and also charge for the time spent searching and retrieving for those documents however the act is unambiguous with respect to what a public body can charge for those two things a public body can charge fifteen cents for every copy on common business size or legal size paper a public body can charge fifteen dollars per hour for search and retrieval with the first hour being free of charge and a public body can charge no more than the actual reasonable costs for providing electronic records now the time spent redacting a document may be added to your search and retrieval time in the Harris case miss Harris made an after request to the city for mayor Ellors' schedule for a certain time period and they complained and thought that the prepayment estimate was excessive but based on our review the number of entries over one and a half year period the fact that the entries had to be reviewed for potential redactions we concluded that the prepayment estimate was reasonable but compare that to another Harris case we had the year before it was basically the same complaint there we thought that the prepayment estimate was a bit excessive based on our in-camera review of the responsive documents for purposes of calculating your search and retrieval time multiple requests from the same person or entity during a thirty day time period shall be considered one request so this just means that if you receive a request from John Doe on August first and it takes you a half hour to complete we know we can't charge because he gets the hour free but if John Doe makes another request on August second on a completely different matter and it takes your public body a half an hour now he's used his hour such that if he makes a third after a request as long as it's in that thirty day period from his first request the public body is allowed to accumulate the time spent on other requests this applies to entities as well if different people from the same entity are requesting information the same rationale applies now you must waive all fees if you fail to produce records in a timely manner and then this could also come from our office when someone files a complaint that's part of the remedy we can direct the public body to produce the records within ten business days at no cost nothing prohibits a public body from seeking prepayment with respect to search and retrieval and copying costs and a public body can toll the time to respond while it awaits prepayment in the Lovalli case the complaint alleged that the commerce corporation violated the act when its prepayment estimate was unreasonable the department concluded that the corporation's response as well as the affidavits submitted by the corporation conclusively established that the prepayment fee charge complied with the act the corporation estimated sixteen hours to search and retrieve and an estimated four hours for redaction at the option of the person making the request the public body shall provide copies electronically by facsimile or by mail unless complying would be unduly burdensome due to the volume of records the costs incurred so persons are responsible for the cost of delivery and you can also charge for sir uh... retrieving from storage if you are if your public body is charged a storage fee one of the other provisions in the access to public records act there's no requirement that you reorganize compiled uh... or consolidate records that are not maintained by your public body except if they're there in an electronic format and doing so would be unduly burdensome if they're in electronic format and you can recompile and reorganize and typically i think about a spreadsheet or something like that uh... and you wouldn't be unduly burdensome then you have to reorganize them uh... as they've been requested subject to the access to public record act otherwise there's no requirement to do so uh... the warwick case here uh... is an example arguably this was a case where some records were requested that the fire department even should have maintained well even if public body should maintain them should have them if they don't there's no requirement to go out create them reorganize them uh... or compile them now may run into other situations other laws retention laws they may or may not be applicable but under the app access to public records act uh... no requirement to do so even if they should exist somebody who's made a request they can choose what type of media they want that the request to be fulfilled as long as the public body can do so okay there was a case we had a bunch of years ago where applications were submitted to i think it was like the energy office and the energy office received hard copy records and they received electronic records person wanted them in electronic format they have that option as long as it wouldn't be unduly burdensome uh... and the agency is capable of doing so and i alluded to the training earlier with respect to uh... good cause for your your officer training has to be done annually if you are going to deny or grant access to records you have to receive training from this office or through this office by video uh... today counts obviously for that training uh... the certificate for training is i think on page forty five of your book you can fill that out it still has to be signed by the chief administrative officer of your of your body uh... but make sure you do that that would be done training today counts for calendar year two thousand nineteen so you're submitting training for the following year and then the last access to public records slide uh... if there's been a willful or knowing violation it's subject to a two thousand dollar fine a reckless violation is subject to a thousand dollar fine and injunctive relief attorneys fees injunctive relief being accord order to provide those types of documents and attorneys fees you know quite frankly that can run that the dollar amount up a lot higher than the than the willful and knowing uh... type of violation so with that before everybody leaves and and and exits let me just say probably the most important thing that i'll say right before the break uh... there's obviously restrooms on this floor in the cafeteria that the bottom floor has restrooms also uh... so please you know take advantage of both and uh... we'll take a fifteen minute break and we'll resume at ten thirty alright we're gonna start up again we'll start with the open meetings couple brief announcements just before we start with the open meetings uh... number one at the end if you're an attorney and you hear for c l e credits and if you're an attorney i'm sure you are here for c l e credits um... please be sure to get your certificates outside uh... at the registration desk afterwards uh... you should all have a valuation sheets also please fill them out we do read them we do follow them uh... we have adjusted this program numerous times over the course of the twenty years we've been doing this uh... so please let us know what we're doing well what we're not doing well what we can improve uh... we would appreciate that and in the last point after we do the open meeting presentation we're gonna go right into the question and answer uh... obviously if you're in this main room uh... you can ask the questions live if you're in one of the uh... overflow rooms you can either come into one of this into the main room to ask a question or there are forms at the front desk where you can write down your question and they will for them to us and we will try to address them during this presentation or during the q and a uh... portion of the presentation so with that without further ado let me turn it over to uh... Lisa and we'll start with the open meetings we start with the purpose of the open meetings act and it is essential that public business be performed in an open public manner and that citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy i think one of the things we find in this purpose is that it's not just final decisions that citizens are able to witness but also how the public body came to those decisions what deliberations were made and what issues were considered we had an interesting finding in davis there the city council held a meeting and the agenda item listed a number of resolutions that the council was going to vote on whether or not to refer these resolutions to the ordinance committee now one resolution that the complaint was interested in was entitled no guns in schools the city council voted to refer this resolution to the ordinance committee the complaint then left the meeting later on in the meeting the city council reintroduced this particular resolution and decided it should not be referred to the ordinance committee and we found that that violated the act concluding that a citizen who witnessed the conclusion of an agenda item and then observed the public body move on to the next agenda item should not have to stay for the entire meeting just in case a concluded agenda item reappears later in the meeting so we did issue a violation in that case now the open meetings act doesn't apply in every situation in order for the act even to be implicated three threshold elements must be met a quorum of a public body must have a meeting if one or more of those elements is missing the act simply isn't triggered and we'll go through each of the elements now here we're going to look at what a public body is and it's any department agency commission committee board council bureau or authority or any subdivision thereof of state or municipal government so it's fairly broad it does include subgroups subcommittees working groups it's very fact specific in determining whether or not an entity is a public body under the definition of both the opera and the open meetings act in Esposito the complain alleged that the situate superintendent search subcommittee failed to post its agenda and meeting minutes the school committee contended that the open meetings act did not apply to the subcommittee so accordingly we focused on whether the subcommittee was a public body under the open meetings act and the dispositive factor concerns the subcommittees scope of delegated authority the search committee screened all the applicants for the superintendent position interviewed candidates and eliminated from consideration various applicants the search committee took action and was performing a task under the school committee's jurisdiction and therefore we concluded that the subcommittee was subject to the open meetings act now contrast that with the Pontorelli case the supreme court case that we've been talking about there the compensation review committee was created by RIDE the compensation review committee convened to review salary adjustments for RIDE employees the committee was composed of six RIDE employees membership on the committee was not by appointment it was just an additional task for people on the leadership team the evidence further revealed that the committee was an informal ad hoc working group with no legal status or authority they did not have regular meetings rather they just scheduled their meetings when a committee member requested one so the committee was really formed to keep three RIDE division chiefs informed about compensation requests so that was not subject to the open meetings act similarly in Salvador the Cumberland mayor's advisory council was not a public body the town aptly noted that the advisory council shared numerous key features with the committee in Pontorelli the advisory council was strictly informal and advisory there was no requirement that the advisory council met there was no set schedule and it was only comprised of three town residents now a quorum unless otherwise defined a quorum is a simple majority of its membership so a quorum for a five member board would be three in the furnace case for Ness the complain alleged that a quorum of the situate town council four out of seven met and discussed a number of resolutions we received affidavits from all four town council members indicating that they had no such discussions and one town council member did admit that he posted some information about two upcoming resolutions on his Facebook page but since no other town council members commented on his post and no discussion occurred the act was not implicated because there was no quorum there is this notion of a walking or a rolling quorum and that occurs when there's a series of meetings each less than a quorum but collectively represent a quorum so if a public body is comprised of five members as I indicated three would be a quorum so if two people were to meet and discuss public business the act isn't implicated because the element of quorum isn't triggered but if one of those two individuals goes on to a third member of the public body and discusses what the original two spoke about then you're circumventing this rolling or the quorum requirement we had a finding where we found a task group violated the act by engaging in a series of email communications that constituted a quorum now this walking or rolling quorum can be created not only by members of the public body but also through a conduit, a third party for example a school committee or a school superintendent rather may speak to less than a quorum of the school committee but then go on to meet other members of the school committee and discuss the content of his or her conversations a mayor or a town manager may make the same mistake with a city or town council so as Lisa's indicated in order for the open meeting act to apply you have to have a quorum of a public body convened for a meeting Lisa's already talked about the quorum element she's already talked about the public body the meeting element is what I wanna focus us on right now because that's really at least in my experience some of the nub of the issues that we get into a meeting is defined as the convening of a public body to discuss and or act upon a matter that the public body has supervision control jurisdiction or advisory power over and the key to this element is having a collective discussion or taking collective action so really the best way to kinda go through this is through some examples we've got a couple cases listed here we'll go through some other examples the Paul case was a case where the Coventry Planning Commission during a recess had a discussion amongst several members several members of the public came up talked to the chairman, several members of the board were engaged in that discussion it was during a recess it was not within the public purview at least audibly from an audible standpoint we said that didn't violate the open meeting act the reason being because there wasn't a quorum there was a quorum at the meeting but there was not a quorum of the membership of the public body engaged in that discussion so for that reason Paul was not a violation the city of Newport case this was a case where there was a resignation on the city council and the city council's procedures required that the city council appoint the vacant slot, appoint the fill of vacancy the members of the Newport city council over the course of several weeks had numerous discussions they had discussions regarding what the process was going to be to fill this vacancy there were some discussions about who was going to fill that vacancy who the preferred candidate was we held that that violated the open meetings act and we literally started to attach and connect all of the different conversations these occurred over the course of several weeks so the time period for this rolling or walking quorum can be at least for a couple weeks but we were focused on whether there was a quorum through individual conversations of a particular subject matter and we connected all of those dots and determined that there was we held for that reason that there was a violation the Gladstone case I'll skip for a second but I'll actually put in the Pearson case which was a case involving the Coventry board of canvassers where the board of canvassers convened to pull names out of a hat or whatever it might have been for determination of what the ballot order was going to be that was not published as an open meeting we held that it violated the open meeting act there was a public body there was a quorum of the public body and they were taking collective action it wasn't necessarily the conventional or the traditional type of action where there was a vote but they were pulling names out and determining the ballot order the public had a right to witness that we have a case from many years ago where the public body was just paying bills public had a right to do that there was some sort of action so anytime you have a quorum of the public body collectively discussing something or taking action either at one meeting or through a series of meetings that could be over the course of several weeks or even months that implicates the open meeting act we get a lot of questions about talking about what I just talked about but translating it into the media world or the electronic world Facebook, text messaging take your pick on whatever other types of electronic communications are out there all the rules that we just talked about apply for the same exact situation regardless of whether or not it's in live conversation or in electronic conversation okay so if you can't do something live one on one if we can't talk about it through a series of meetings you can't talk about it through a series of electronic meetings or electronic communications the one exception is what's up here which is that you can use electronic communications shouldn't say the one exception the first exception is that you can talk about through electronic communications when to schedule a meeting okay that's it not what's going to be discussed at the meeting only the scheduling of that meeting that can be done electronically the Warwick School Committee case is arguably I'm not sure how best to describe it arguably of another one of the exceptions that was a case where the school committee was talking with its attorney outside the public purview following a Superior Court decision issued by then Justice Frank Williams by Superior Court Justice Frank Williams we held that conversations with the public body amongst and between its attorney did not violate or implicate the open meeting act now we're very careful to say that these are communications from the public body to the attorney and from the attorney to the public body members not amongst the public body members now that may be exempt under a different exemption but those don't fall within this attorney-client type of discussion that was the subject of Justice Williams decision the other exceptions for electronic communications if you're on active military duty you can participate by electronic means or if you have a disability and you can't otherwise participate during the meeting you can participate through electronic means if you fall into the latter category the Governors' Commission on Disabilities has certain rules and procedures you have to follow I think that there's a form that has to be also filled out make sure you comply with that or at least know about that and research what has to be done because there are certain things other than just saying you have a disability and then listservs listservs we have held do not violate the Open Meeting Act a listserv is basically where information is just sent out to the public body let's say the town clerk or the town council president just sends an email out to the entire body well that by itself does not violate the Open Meeting Act think about why talk about the analysis that we just went through you've got a quorum the email's being sent out to the entire public body you certainly they're a public body but there's no meeting there's no collective discussion of that topic there's only one email going out to the entire public body if members of the public body respond to that email now you've got a collective discussion going on okay so that first email doesn't violate it the second email may very well violate the Open Meeting Act so you need to be careful about that and even if you're that person who's sending out that first email you know I've seen lots of situations where those emails say don't respond that will violate the Open Meetings Act just be aware that once you hit send you lose control of that and inadvertently it may lead to a violation let's see the Keegan case was a situation where there was a press release that was issued by the town not every action that's done by a town I think those of you in town governments certainly know this is an action of the public body there was a complaint filed in that case that there was a press release that was issued and there was no meeting to authorize that press release being issued well it wasn't the town council that was issuing the press release it was the town manager or the town administrator that authorized that press release or issued that press release dinner or social events okay again you've got a quorum you're a public body but are you talking about collectively some subject matter or taking action that you have subject matter that you have supervision control jurisdiction or advisory power over if you're all out to dinner and talking about some social events the answer is no if you're out to dinner and you're talking about town business then the answer is yes okay the other little wrinkle with this is you know sometimes who is a public body gets a little bit confusing and what's quorum of a public body you may have a situation where you're on the town council let's say the town council has seven members for being a quorum but you're also on the finance committee and the finance committee has three members and three members who are all part of the finance committee meet to discuss finance matters well obviously that's not a violation of the town council meeting you don't have a quorum but you do have a quorum of the finance committee so you do also have to be aware not just of that parent body that you may be a member of but the subdivisions and the subcommittees so once the open meeting act applies once you meet those three threshold elements the open meeting act applies all the provisions apply and just like with the access to public records act there's a presumption that your meetings have to be held in public okay as a matter of fact they can only be held in executive session for one of the ten stated reasons okay other than those ten stated reasons your meetings have to be in open session how do you get into executive session otherwise no one is closed session you have to articulate an open call your open call has to be by majority of the members present okay so they have to vote by majority you have to state in open session and record in your open session minutes the specific subsection that you're going into executive session pursuant to we'll talk about that in the next slide and you have to state the statement specifying the nature of the business that's going to be discussed for each and every matter that's going to be discussed in executive session and not discuss any other matter uh... the the snapy case for instance that was a complaint that we had that uh... the school committee had discussed something in executive session improperly like we do with any type of allegation regarding the executive session we obtained the executive session minutes from the school committee and we found that the allegation was not did not hold up it was not a meritorious allegation but what also happened when we did our review of the executive session minutes is that we found that the school committee had discussed another matter in executive session that nobody knew about wasn't on the agenda uh... wasn't in any minutes was no amendment there was just another discussion that just had happened that violated the open meeting at you can't discuss any other matter in executive session even if that matter would have been appropriate so you need to articulate that open call for each and every matter that's going to be discussed in the executive session and you need to make clear if multiple items are going to be discussed in executive session that you're discussing multiple items in executive session and you articulate a uh... an open call for each individual matter uh... the roberts case was a case where there was just no no open call the executive session was convened didn't appear that there was any we couldn't are find any reason that fell within any of the exemptions for the open session that violated the open meetings act we made sure and we declared that uh... that those executive session minutes be declared to be public records as mike indicated there are ten exemptions that a public body may choose that are required to go into executive session and those exemptions can be found on pages thirty one and thirty two now one reason a public body may but it's not required to go into executive session would be to discuss the job performance character or physical or mental health of a person or persons there are a couple of procedural requirements that must be met if a public body chooses this option the person affected shall receive advanced written notice that the discussion about him or her may be held in open session and the public body must stated open call and record in its open session minutes that that required notice was provided in avansato that town council's town search panel violated the act when discussions were not appropriate under a one we reviewed their executive session minutes and we found that there was no discussion the job performance character physical mental health of any of the town managers applicants because we concluded that the executive session discussion was not appropriate we required the release of the executive session minutes now the indication into executive session lies with the public body not the individual seeking to attend another appropriate purpose for which executive session may be held is a two sessions or work sessions could pertaining to collective bargaining or litigation for example a city council may want to convene into executive session with the city's solicitor to discuss the fact that the city was being sued for say a slip and fall on city property so the council would probably want to discuss legal strategy and possible settlement in closed session and it's significant to note that the section does not limit discussions only where litigation has been initiated but also where litigation is reasonably anticipated a four investigative proceedings regarding allegations of civil or criminal misconduct certainly an appropriate reason to go into executive session a five is the acquisition or lease of real property for public purposes or disposition of publicly held property wherein advanced pop public information would be detrimental to the public a eight school committee sessions to conduct student disciplinary hearings or to review other matters related to the privacy of students or their records provided that like we saw under a one the job performance advanced red notice must be provided that the discussion may take place in open and they must state in their open call and recording their open session minutes that that notice was provided so your executive session votes uh... not every exception allows you to vote in executive session uh... if you actually look at the text of the very first exception as an example or the eighth exception it says you can go into executive session for any discussions related to the job performance character physical or mental health we've said uh... repeatedly we interpret that lost trickly because it says you can only go into executive session for discussions you're limited to only having discussions and not taking votes so not every exception allows you to take votes under uh... in executive session but if you are taking a vote if you if there's an exception that allows you to take the vote and you have taken a vote that vote has to be disclosed as soon as the open session is reconvened the exception to that is if doing so would create some sort of uh... jeopardy to the strategy or negotiation that you had just discussed in executive session if that's the case the vote doesn't have to be disclosed upon a reconvening into open session but we have stated that that vote does have to be convened disclosed after the jeopardy dissipates and as a matter of fact there's an affirmative duty on the public body to disclose that vote as soon as the jeopardy dissipates uh... so be aware of that types of notice there's two types of notices annual notice and supplemental notice your annual notice is your regularly scheduled meetings right those are posted at the beginning of every calendar year january of every calendar year and those are all of your meetings that are regularly scheduled if you meet on the first of every month you're going to have a regular notice posted in january of your regular scheduled meetings supplemental notice is a minimum of forty eight hours prior to the date of the meeting it now excludes weekend in holiday hours that was an amendment from about a year ago uh... where do those notices have to be posted three locations are minimal three locations the principal office of the public body holding the meeting if there is no principal office at the location that the meeting's being held one other prominent place within the governmental unit and on the secretary of state's website electronically and i guess this is a good point to re-emphasize that the secretary of state's office uh... stacey dakola has a table outside to answer any questions uh... today regarding posting to their website uh... any types of uh... those types of secretary of state issues and posting requirement issues uh... the mechanics of it they're happy to answer your questions outside we had an advisory opinion we issued a couple weeks ago ironically it came from the secretary of state's office they used to post notice and i guess they still do post some notices on the bolton board outside at the state house the question we got was we now have an electronic kiosk uh... in the state house can that serve as the other location within the within the governmental unit we said yes uh... if you're posting on a bolton board at the state house there's really no reason why an electronic kiosk at the state house can't serve that same function uh... so that's a service that's now available uh... at the state house what is notice have to include what your notices have to include if we're talking about the annual notice it has to include the date time and locations of the regularly scheduled meetings and it has to be provided to members of the public upon request if we're talking about the supplemental notice has to include the date time location of the meeting the date the notice was posted and most importantly uh... statement specifying the nature of the business to be discussed lisa had talked about the poncho rally case the emphasized language here by statement specifying the nature of the business to be discussed this has been uh... a subject that we've talked about in the past it's gonna be a subject we talk about in the future uh... it's a subject that in the last decade or so little bit more than a decade the Rhode Island Supreme Court has spoken about it three times through their opinions uh... that really started with tanner in two thousand three tanner versus town of east Greenwich uh... the town had posted notice for interviews of potential board and commission appointments and what the town did is they uh... interviewed certain people according to the notice at ten fifteen they were going to interview somebody at ten thirty they're going to notice some uh... interview somebody etc and what the Rhode Island Supreme Court said was that was fine what violated the open meeting act however was not only did you interview people and give notice that you were interviewing people but then you went and made an appointment and there was no notice on the agenda that you were also going to make the appointment and the court said that uh... this statement specifying the nature of the business to be discussed requires public bodies to post fair notice to the public under the circumstances i know not a lot of great help for those of you who are there making the agenda uh... but that's what the court articulated uh... and that's the standard uh... about a decade later the court re-examined the statement uh... in analog versus city of Newport uh... that was a case where under the communication section of the agenda uh... the city of Newport posted request for extension regarding congregate jet regarding congregation Jesuit Israel and they posted uh... or indicated the attorney's name who was making the request there was a construction project that was going on in town regarding the congregation and there was an extension of when that project had to be substantially completed uh... the trial justice said no that notice can that notice complies with the open meeting act that's fair notice under tanner no violation it goes up to the red island supreme court the red island supreme court says now that's obviously a violation of the open meeting act uh... they say that the notice was completely silent as to what property was was subject to this extension where that property was located uh... they took a special uh... exception to the fact that this notice was posted under the communication section of the agenda and didn't give any hint that any action was going to be taken uh... on this agenda item so again being more specific and you see the court requiring more and more notice from tanner to analog and you see that again Lisa reference ponte rally from a couple years ago even requiring more notice in the ponte rally case uh... that was the case where uh... the council had posted on their agenda uh... that they were going to talk about the approval of rides executive pay plan and they didn't and indicated there was an enclosure closer seven b the red island supreme court well again the trial justice said nope that complies with the open meetings act no open meeting act violation goes up to the supreme court the supreme court says no there's no meeting violation they flip that uh... the issue that the supreme the supreme court had a couple issues in in this one the agenda said and just listen very carefully to the singular approval of rides executive pay plan in the singular supreme court said no you didn't talk about a plan in the singular you talked about plans in the plural that violated the open meetings act according to the court uh... the court says the agenda says that you can also see exhibit seven b and exhibit b seven b may have given some indication that there were multiple plans that were going to be discussed and not just one plan the exhibit never made its way onto the secretary of state's website okay so because of that absence because of the singular uh... the court says that violated the open meetings act what was also interesting about this is the court notes that the agenda and the exhibit were posted on rides website and the court says that doesn't matter the open meeting act doesn't require the notice to be on rides website it requires it to be on the secretary of state's website so the fact that the exhibit was posted on some other site didn't matter had to be on the secretary of state's website uh... the lesson for all of us is be specific on your notices be as specific as you can uh... if you get a complaint or a particularly if you're before the red island supreme court with these trilogy acacia show is that you're going to be behind the eight ball and we recognize that their situations where either the discussion is going to be on a different direction when you're at the meeting or maybe such as the ride situation uh... you realize you left off the s or whatever it may be we're gonna talk about in a moment about amending the agenda most of your questions or most of your issues can be addressed through amending the agenda it's different for school committees everybody else but school committees uh... really commit can take advantage of of or use uh... that provision but just be aware about that i wanted to foreshadow that because that's a big issue uh... that's in the case law right now here's some examples of it agenda items that are simply not specific enough a citizen would not know if he or she want wanted to attend a meeting when the agenda item is entitled any other matter to be brought before the board an agenda item entitled old business would be appropriate if underneath that heading there was listed the matter or matters which constituted the old business uh... in the cold while mac and mary finding the east greenish town council's agenda item listed town managers report and that was simply insufficient especially in light of the evidence revealed that the town council discussed a number of collective bargaining agreements in eighty-odd kitchen the complaints alleged that the town council violated the act when it voted to terminate their respective employment positions in executive session yet the agenda listed sessions pertaining to collective bargaining or litigation our in-camera review revealed that the discussion concerned the town restructuring plan that included layoffs of municipal employees the town alleged this was proper for executive session since the town solicitor would advise the town council members of the legal implications in terminating town employees and we concluded that after the town council discussed the litigation issues surrounding the termination the discussion and or vote to implement its plan did not relate to litigation so there was a violation in that case as well now your executive session notice again no boilerplate language like a placeholder it has to be specific to each and every meeting identify each topic that you're going to discuss under each exemption and include a statement of each item to be discussed now if the matter is publicly known you need to provide a detailed statement if a lawsuit say was filed we have findings that indicate you must state the case name not just litigation if the topic is not publicly known a public body may use more general language and we'll see that on the next slide where we give some examples of proper executive session notice number three personnel matter under a one and two so we know it concerns the job performance character mental health of an individual and under a two it's going to include uh... potential litigation or collective bargaining matter so they're going to discuss this personnel matter under both sections they listed it it's obviously not publicly known so they're indicating they don't state the person's name and number four potential litigation so the lawsuit has not yet been filed but we at least know it involves a land dispute might just mention amending agendas that's what we're going to address now in the next two slides do not apply to school committees so a public body may amend its agenda by a majority vote to add additional items however these additional items shall be for informational purposes only and may not be voted upon except where necessary to address it unexpected occurrence that requires immediate action to protect the public or to refer the matter to another appropriate committee or another body or official so you may think your agenda is specific enough but when you get to the meeting discussion start to veer off in another direction or someone complains that notice is not specific enough what options do you have at that point the act allows you to amend your agenda at the very meeting in the dion case the subject agenda item stated appointing john ward as clerk and member of the board of canvases at the meeting the evidence revealed that a motion was made in seconded to amend the agenda it appeared that the city council intended to appoint mister ward as a member of the board but not the clerk so the city council amended its agenda to add susanne bad days as the clerk of the board of canvases it was amended and they voted on it and that's where the violation occurred it was for informational purposes only so we found no willful or knowing violation but we did direct the city council to reconsider and re-vote on that agenda item at a properly posted future meeting amending school committees agendas it's a bit more cumbersome but it can be achieved as follows the revised agenda must be posted at least 48 hours in advance of the meeting and it must be posted at two public locations so what we take from that is school committees cannot amend their agendas at the very meeting it must be filed electronically with the secretary of state and it must be posted on the school districts website as part of the legislative session quite a few years ago there was that significant amendment which struck the provision that required school committees to publish notice in a newspaper of general circulation this section of the act is has not been struck but its applicability is very much in question this point continuing with amending school committee agendas there must be a formal process available to provide timely notice of the revised agenda to any person who has requested it and that the school district has taken reasonable steps to make the public aware of this process the original published notice must indicate that changes will be posted on the website along with two public locations and files electronically with the secretary of state so one of the other areas where the open meeting act differs depending on where depending on what public body you are is public comment in this respect it differs very very small very minutely public comment public bodies can respond to matters that the public brings up during public comment even if those matters are not on the agenda you don't have to amend the agenda uh... public during the park during a public notice uh... sorry during a noticed uh... public comment period can bring up any matter that they want during that public comment in the public body can respond that does not violate the open meetings act this is for comments that are initiated by the public not by the public body this is not allow the public body remembers of the public body to initiate or bring up matters that are not on the agenda if the public body wants to do that or if members of the public body want to do that they have a couple options they can either put it on the agenda uh... they can amend the agenda subject to everything that Lisa just talked about right now so there are ways for members of the public to get things uh... on the agenda or talk about him at a public meeting even if they're not initiated but this is not one of them this is only for members of the public and then members of the public body responding to that we get a bunch of complaints every year also from uh... citizens that a public body either limited their public comment or limited public comment or something along that line uh... the acts of sorry the open meeting act does not govern those situations the open meeting act expressly says that nothing requires a public body to hold an open forum session to entertain or respond to any topic nor does it prohibit any public body from limiting comments so you don't have to have an open comment i recognize a lot of public bodies do so uh... but if you're gonna have that public comment just make sure that uh... you're following this and not initiating your own comments if you're a school committee the only difference here really is that under the uh... accent sorry under the open meeting act the request to speak by the member of the public has to be submitted in writing that's really the only difference again for informational purposes only uh... for both school committees and non-school committees matters brought up during public comment cannot be voted upon it can only be discussed what your minutes have to include uh... it's actually pretty bare-boned your minutes have to include the date time and place of the meeting the members who are present or absent at the meeting any votes that are taken at the meeting by individual member how they voted uh... and any other relevant information that a member of the public body request to be included in the minutes the the voting if it's a unanimous vote you can just indicate unanimous that indicates how everybody voted with respect to the last clause about any other information that a member of the public body wants to be included please note that's that the public body wants to be included or members of the public body want to be included not members of the public certainly can include what members of the public want included there's just no requirement on the open meeting act that you do so where members of public bodies want certain things included in the minutes we've held that they have to state so very specifically that they're invoking forty forty two dash forty six dash seven uh... a okay just saying i want this in the minutes doesn't expressly invoke that provision so make sure you do it if you want something included make sure you expressly invoke that provision uh... otherwise i recognize a lot of the minutes are much more detailed than what's included but that's what is required to be included in your minutes disclosing your minutes uh... let's start with that there's two different types of minutes there's official minutes and unofficial minutes official minutes are those minutes that are approved by your public body unofficial minutes are obviously minutes that have not been approved those minutes have to be disclosed now when they have to be disclosed where they're disclosed at least for the unofficial minutes depends on what public body you are uh... you see that this slide says all it's applicable to all with an asterisk that means it's really not all uh... but everybody is going to fall within this category except for those that don't uh... everybody's gonna fall it's that hard-hitting legal analysis that you get here at the age you summit everybody this is going to be uh... everybody except for fire entities will talk about the fire in the second but everybody else your unofficial minutes have to be made available within thirty five days of the meeting or prior to the next regularly scheduled meeting whichever is earlier okay so thirty five days before the next regularly scheduled meeting whichever is earlier and it has to be made available at the office of the public body uh... the exceptions for sealed executive session minutes you can extend the time for filing your minutes your unofficial minutes for making your unofficial minutes available at the office of the public body as long as you state so publicly and you do so and you extend that in open session so that's the role for everybody except for fire entities fire entities and just to be clear the definition of that is all volunteer fire companies associations fire district companies or any other organization currently engaged in the mission of extinguishing fires and preventing fire hazards your time frame is within twenty one days of the meeting but no later than seven days prior to the regular to the next regularly scheduled meeting whichever is earlier and as opposed to putting making your minutes available on uh... at the office of the public body your minutes your unofficial minutes have to be made available on the secretary of states website okay so a much different uh... time frame different uh... requirement is where as to where those are located uh... you also see that there's no extension i so when you're if you're in that category of fire entities you can extend the time uh... to make your unofficial minutes available uh... with respect to official minutes this also used to be depending on who you were uh... it was amended i think a year ago and now everybody including fire entities are all the same boat makes a pretty straightforward everybody has to make their official minutes available uh... on the secretary states website within thirty five days of a meeting the exception being for advisory bodies only you can extend the time period your official minutes have to be made available within thirty five days of a meeting uh... on the secretary states website that's applicable to everybody state municipality fire districts everybody uh... we get the question perfectly blunt i hate getting questions that i can't answer and this is definitely one of them uh... what do you do if you don't have a meeting within thirty five days to approve the minutes uh... like i said i don't really have an answer for that uh... that was something we brought up during the legislation the attorney general word of letter and said you know that's well and good for public bodies that meet within that thirty five day time frame but what about public bodies that don't meet every thirty five days you're requiring the official minutes to be posted with the secretary states office you don't even have a meeting to approve those types of minutes it does pose an issue you know hopefully it's something that does get addressed uh... through the legislative process all of your open meetings must be accessible to persons with disabilities so if you are meeting is not on the ground floor you must have a working elevator we had a finding a few years back where the city held its meetings in a very old building with a small elevator which could not accommodate most wheelchairs they did have a platform lift to go up the stairs but the complaint felt that it was very slow and unsafe after a complaint was filed with our office the city agreed to accept bids to modify the elevator to ensure compliance with the open meetings act in the interim agreed to hold meetings in an alternative place that was in compliance now emergency meetings upon a majority vote an emergency meeting may be convened to address an unexpected occurrence that requires immediate action to protect the public emergency meeting is going to be called there are some procedural requirements that must be met the agenda shall be posted as soon as practicable and it shall be posted on the secretary states website and at the meeting the public body shall state for the record why the matter had to be addressed in less than forty eight hours and it shall only discuss the issue which created the need for the emergency this provision should be and is rarely implemented uh... we've had a couple of uh... findings where we agreed with the public body that an emergency meeting was appropriate there was one where a town sent letters to firefighter recruits advising them to appear for work the following week when the money had not been appropriate for their hiring so we determined that was an emergency we've seen a case where there was a large amount of snow on a school roof it was in danger of collapsing so the school committee had to convene on less than forty eight hours so that was an emergency now any citizen or entity of the state who's grieved as a result of any violation of the meeting's act may file a complaint with the department of attorney general in the Fernandez case the complaint alleged that the foster volunteer fire center violated the act by failing to post sufficient notice and failing to timely post meeting minutes but the complaint provided no indication that these alleged defects specifically disadvantaged him instead he only provided conclusive assertions we held that because these bear assertions of interest are insufficient to demonstrate a grieved status we found that the complaint did not meet his burden and had no standing in the letting set finding there the complaint alleged that the commerce corporation violated the act when it untimely posted minutes on the secretary states website for some meetings but the complaint again provided no indication that he was a grieved during the time period with the meeting minutes should have been posted but we're not in fact the complaint informed our department that he did not have any specific interest in any of the meetings as such the complaint had no standing to object that we found no violation very similar in uh... no vac a citizen can also file lawsuit in superior court and a court as a remedy may order injunctive relief and declare any actions taken by the public body to be null and void and may impose a civil fine of up to five thousand dollars uh... for a willful and knowing violation and may award attorney's fees and costs so that completes the open meeting portion uh... we're gonna go right into questions and answers uh... we know that we've got some that have been submitted uh... joe i think you've already probably activated that the microphones that will walk around the classroom if you have a question please wait for the person to get to you otherwise people in the other room can't hear the question uh... so with that we said you have questions or raise your hand i'll start with a question that i've gotten that's been submitted we start with this and then carrying you go over there that the microphone should already be on uh... so this regards and we get a lot of questions regarding uh... request for access to public records this was a question where every quest was made uh... for the public body to provide all laws that pertain to a particular crime or issue uh... not surprisingly as i read a little bit further down on the request the request was made by an aci prisoner uh... regarding legal advice so you know the question that really hones into okay there was a request made uh... to the apartment corrections for all laws that pertain to a certain crime please provide me all documents that relate to this uh... to me this reminds me of a decision that was issued many years ago by judge hurst in the superior court uh... blaze versus revins and what judge hurst said in that case was the access to public record act requires public bodies provide access to documents it doesn't require public bodies or members of public bodies to be research assistance or in this case legal assistance uh... so that this type of of question to me i think implicates that interest where you're asking somebody not to uh... make the cold hard factual determinations of whether a document is responsive but to do the legal research concerning uh... whether you know all laws pertinent pertaining to a particular crime uh... i mean quite frankly if if that were a public record and i think i could probably start to submit access to public record questions regarding legal issues to public bodies and just uh... sit back and have everybody else do my research which sounds interesting to me my question is is the public body required to keep paper copies of meeting agendas meeting minutes and all backup materials for agenda items on file indefinitely so the open meeting act expressly says i remember it's the open meeting of public record i think it's the meeting act expressly says that notices for your meetings have to be kept for one year so that's that's a requirement under the open meetings act the rest of your question about maintaining minutes maintain backup for minutes in meetings really is a uh... retention schedule question uh... the access to public record nor the open meeting act really governs that part of it i would check what your town or or state agency retention schedule is uh... they may very well require an indefinite uh... retention but but that's the answer not the access to open meeting it's your town retention schedule it's probably your town retention schedule or given that someone is stationed to allow access during the entirety of the meeting so yes that that would be allowed there are numerous secured buildings and you can have an uh... open meeting in such a building any other questions right there karen there's a couple i think i know the answer but just to clarify it because it just came up the exception that correspondence of her to an elected official is an exemption if correspondence comes to four of a seven member body that exemption no longer applies because you're not sending that correspondence to an official you are now sending that correspondence to the body is that true or no um... you know i i i don't know i think i'd i'd really like to see what the correspondence actually says okay my gut inclination is that you're seeking to to draw some distinction that you know it's addressed to the barrington town council verses listing four members uh... on the letterhead of the barrington town council you know whether it's one member of the barrington town council and i'm just making a barrington obviously uh... what's that uh... whether it's one member of barrington or four members i don't know that that is is distinguishable for for exemption and you know whether members and their names is distinguishable from the barrington town council uh... you know i'm not sure what the answer to that question is i haven't seen that question uh... i'm not sure there's a distinction at least in that exact in that situation i've always thought you know from the department of attorney general for instance a letter that's just addressed to the department of attorney general but not to the attorney general that there's a distinction there but i think with the town council you may be in a little bit of a different situation but not really sure so so and i guess that's a great point to just bring up and the questions at least in either answer are those that are either answered by some of our findings or court case or the plain language of the statute as i've well demonstrated there's certainly areas where we can answer i can answer that that question uh... in those types of situations you all have legal counsel if you're part of a public body ask your legal counsel uh... we have a process at the a g's office that if your legal counsel wants to in their discretion they can ask us for a written or an oral advisory opinion typically know that process very well uh... they can contact us up if they're not familiar and we can address it through that avenue you're welcome should be on is it is it on uh... do investigatory records of public bodies ever become public uh... and the reason i ask that question i think sort of goes to the balancing test question sometimes the only way to determine whether or not a public body is living up to its enforcement responsibilities is to look at whether or not it is seriously investigating so let me just repeat the question because now i'm not sure that the microphone is on based on the lack of uh... but but the question really was whether investigatory records of public bodies ever become public uh... kind of to ensure that there's a check against the investigation of the agency uh... and the answer is is quite frankly no uh... as the laws written right now if a document is exempt under p because it's an investigatory record those records are exempt there's no sunset provision or there's nothing like that that says once the investigation is complete all records are public what it does say is that uh... the final agency action is public uh... so that is public right now and right now under existing law but all the other backup and all the other investigatory documents on the existing law or not and it really brings up the additional point uh... you mentioned the balancing test once a document falls within the exception it doesn't it's not subject to the balancing test to take it out of the exception so in other words if it's exempt under exemption p or any other exemption it's exempt from disclosure and again it doesn't mean that government can't give it out it just means government doesn't have to give it out but there is no such thing as it's exempt from disclosure and now we do with the balancing test to determine whether the public interest outweighs the exemption or outweighs the privacy interest and then it becomes public that's not the equation under the access to public records act if it's exempt it's exempt and that's the end of it two quick questions did i understand correctly on votes that if it's not unanimous the record of the vote has to include the names of the people in the affirmative and the negative also regarding uh... detail on agendas is it sufficient to say discussion and or action uh... and then list the items for discussion or do you need to go into more detail on each individual item repeat that one more time is it sufficient under the on the agenda to say discussion discussion and or action on the following items to include possible vote uh... is that sufficient that should be sufficient okay and we've we've said that that is sufficient you know i i wouldn't i wouldn't just automatically throw boilerplate be saying that but if you believe that there's any possibility that there's going to be action as we've stated more notices is better and if you just say discussion you're going to be you're going to be limited to just discussion and no matter what public body you are you can't amend the agenda to include an action item thank you and quickly executive session minutes who who has access to them does a committee chair have access to previous executive session minutes yet you know that's not really governed by the open meetings act um... it doesn't really talk about who has access to executive session minutes it doesn't talk about executive session minutes expiring or becoming public at some point uh... so i think that that's really a question that's best left to the individual towns or bodies thank you this is your questions uh... this question comes from a college student i am currently in the process of writing a case study about a dispute that took place between two jurisdictions over the course of the dispute the councils for the two jurisdictions met in on several occasions in executive session the dispute has since been resolved but the executive session records remain sealed is there any possibility of having the documents unsealed and if so what would the procedure be this is strictly for educational research purposes only i think as we indicated the executive session minutes if you choose to seal them uh... are remain sealed as mike indicated there's no sunset provision i think what you could do is reach out to the two jurisdictions explain what you're doing see if they'll unseal them maybe just temporarily uh... but it's up to them if they choose that they don't want to do that there's uh... they remain sealed uh... my question regards uh... public comment if a member of the public who cannot attend a meeting submits comment on an agenda item or whatever else via email uh... to the chairperson of the commission uh... how how is that considered in terms of public comment and does it have to be read publicly at the meeting yeah i don't think there's any requirement under the open meetings act that it has to be read you know go back to the provision that i had talked about a couple moments ago uh... that under the acts under the open meetings act there's no requirement even have a public comment or to limit public comment so the way the law is written right now uh... i don't think that there's any requirement that it that it be read doesn't mean it shouldn't be doesn't mean it doesn't have to be but i mean if you're asking me about a mandate that has to be read i think the answer is now uh... i've got a question i love when the first sentence just glares out to me politics uh... when the democratic and this is i'm reading it as written just to be clear to everybody uh... when the democratic majority in the red island house of representatives and it says in parentheses or senate meets in closed caucus for reason not exempted under the open meeting law to discuss pending legislation why is it not a violation of the open meetings act well it really depends on what the subject matter discussion is uh... but to answer the question on page thirty the definition of a public body uh... we talked about how broad it is but the last sentence of that section says for purposes of the section any political party organization or unit thereof meeting or convening is not and should not be considered to be a public body and it goes on provided however that no such meeting shall be used to circumvent the requirements of this chapter so that's probably the answer right there uh... you know it's i'm not sure exactly what the question factually talking about but that's that may very well will be what the answer is uh... rachel is there any of provision in the open meetings act about special meetings uh... and requirements of them where as like uh... a town council might have a monthly meeting that's regularly scheduled at a particular time every every month but then a special meeting is called are there any and there's no videotape of special meetings but only of regular meetings and they will be the forty eight hour notices and agenda but the public really uh... kind of isn't really informed because it's it's last minute and there's no emergency but it's just a special meeting are there is there any provision on that in the open meetings act really the provisions that that are there that are in the opinion after those that you just articulated it's the forty hour notice uh... you know one of the the great things about the secretary states website as i understand it uh... and hopefully i'm giving you a correct understanding is that if somebody's interested in a particular public body i think they can set it up to get alerts for that public body you're right confirm thank you so uh... you know that's a mechanism that i think is is is of great use if you're pretty if you're interested in particular body you know you're still subject to that forty hours uh... that's just the way the law is written you know obviously that was amended a little bit in the last year concerning weekend hours not counting and holidays not counting there's no requirement that has to be uncertain dates or you know notice beyond the forty hours that we've talked about right in front thank you uh... slide on page ten about rolling or walking quorums uh... can be created not only by members of a public body but through a third person i'd like you to elaborate a little more on that because uh... you mentioned as an example lisa the uh... town manager talking to council members i believe but suppose it was a reporter polling the different members of the council on a particular issue that was before the council isn't that allowed turn into a well so i mean when we deal with these walking quorum issues they get really fact specific and i reference the one we had with new port before we're literally you know okay what did you and i talk about okay is that the same that same subject matter that you and somebody else talked about they get very fact specific you know if there's a reporter the example that of the third party is where that third party typically is being used as a conduit to convey information so if let's just say that threes a quorum if you and i have a discussion and then you talk to the town manager and the town manager conveys okay this is what two members said to a third party you know then you've really circumvented the open meetings act that person that person's really been used as a conduit more than you know that's just take a hypothetical reporter situation where reporter interviews you and i this is what i think and the reporter then goes to a third party to a third member of the public body well you know these two members said this what your opinion on that i see that factually different you know i'm not sure that there's a lot of substantive difference but the intent is different you're talking about not just a third party but a third party that's outside that the public body uh... arena so you know that that's kind of the situation we're looking for some situation whether inadvertently or not where the open meeting act has been circumvented if there are people in the the satellite rooms by the way who want to come in here there's plenty of room to come in and ask questions or to provide questions in on paper if they want to uh... we've got more people here with questions but uh... just want to invite other people in obviously also alright so my question uh... is as a public agency as part of our procurement process uh... we obviously receive uh... proposals from various companies uh... a lot of times when they submit their proposals they label them as confidential and proprietary and then once uh... uh... once we you know uh... make our decision and award a lot of times we then get requests for those proposal documents from either members of the public but most often from other companies that bid on the same rfp so my question then becomes is is the agency uh... under the exemption related to you know confidential commercial and trade secrets able to accept what those companies are labeling as proprietary and confidential uh... so that you know as as the agency doesn't get into the determination of what a company is considering confidential without understanding the nature of their business yet you know i i don't like to get into labels but in your situation the label i would think is relevant i'm not sure that it's dispositive but i think it's relevant and the reason i say that is because under exemption b the red island supreme court's issued a couple cases convention center authority versus providence journal or providence journal versus convention center authority and it lays out a test uh... by which this type of confidential financial information is public or not public and part of that test is whether the agency or the entity that has provided that information considers it public or would in the ordinary course of business make that available to the public uh... so you know i think that how that information is received i think that that's a relevant consideration but i don't think that i would hang my hat on that completely i think i would go through the rest of the analysis you know i think it also depends what stage you are in the bidding process i think it also may depend you know what those documents say you know even after the bidding process i can see conceivable that there's still a financial trade secret information as to what somebody's bid was if not successful that affects things down the line you know i don't want to make those broad conclusions definitively but i i think that that's part of what i would look at and i would definitely direct you to or legal counsel to that providence journal convention center authority case because i think that that's where the answer is uh... you had uh... addressed earlier the discrepancy or ambiguity between requirement uh... for filing on the one hand unofficial minutes within thirty five days or the next regular meeting and the requirement uh... official or approved minutes be filed with the secretary of state electronically and you pointed to the dilemma faced by boards that may meet not so frequently am i correct that all boards no matter how how frequently they meet must file unofficial minutes within thirty five days uh... at at the physical place of the public body is is that correct yes that's correct so that within well within thirty five days or prior to the next regularly scheduled meeting which i was earlier i'm thinking of the situation of a board that's not meeting within thirty five days so so there's nothing to prevent uh... that board from filing that the exact same thing at the secretary states website is there there's not but the issue you get into and those of you that know me i'm very good at raising issues but not solving them uh... and that's what i'm gonna do right now uh... but the problem that you get into is it may very well be the same exact document but you're at the meeting you know let's just say it's whatever it is it's july first you're at the meeting you obviously don't have minutes of the july first meeting because you're right there and if you don't have minutes if you don't have a meeting until thirty five days after there's nobody to you know you've got a there's nobody to approve so you've got your meeting on july first you have somebody type up the the unofficial minutes on july whatever it is fifteenth those of your unofficial minutes you make them available within thirty five days of the meeting but you can't approve those minutes until your next meeting that's that's the issue that public bodies run into so it may very well it could be the same document but it has to have that in promoter of being your official or approved minutes and that can't happen without having another meeting like i said very good at raising issues not resolving them uh... did i answer your question to the extent that i could as long as we're on the same page uh... other questions right here in front rachel thank you just a couple of things i need a little bit more clarification on if a citizen emails a town council member with an app request and that town council member forward to the request on the behalf of the resident to the app or official or the town clerk is that an official app request sorry uh... you know we've spoken on this i'm trying to remember exactly what we have said and uh... what i would say to you is give me your contact information i know what the finding is i just i don't remember exactly what way it comes out uh... and i don't remember the answer and i don't want to tell you okay uh... can you give any parameters on a time frame of what an advanced written notices what happens if it's given after the forty eight hours with respect to the person personnel and wanted to be held in an open meeting so uh... as the question suggests uh... one of the reasons to go into executive session is for to discuss somebody's job performance character physical or mental health and the open meeting act requires that that person who's going to be affected not just discussed but affected it says had received advanced written notice i don't think that we've it it doesn't have to i don't think we've specified what that advanced written notice has to be uh... i think it has to be ample notice i think it has to be reasonable notice uh... but i don't think we've said it has to be this frankly to get on the agenda has to be forty hours notice there has to be at least forty hours to the public body that that person's going to be discussed uh... during the executive session so any delay after that point you know really starts to raise questions with the public body why they didn't provide ample notice so if it was given just say after the forty eight hours and it was on the agenda as an executive session item and after the forty eight hours the person to be discussed decided oh by the way i want it in open session during the meeting they can actually add that item as a discussion topic to the open as part of the open meeting during meeting yet what i would do because we have certainly have said that the person who's affected and receives the advanced written notice can elect to have it in open session right up you know at the meeting so i think you have to be a little bit careful on your executive session agenda is not to say we're going to convene into executive session i think probably this is a good practice to get in for any executive session because you don't know for any executive session that you're definitively going in you may have a pretty good idea but you don't know until you take the vote uh... to to indicate that your agenda uh... to to indicate on your agenda that you will seek to go into executive session or move to go into executive session rather than saying definitively there was a superior court decision that said exactly that uh... many years ago sorry just a few more you had made a reference to an exhibit as part of an agenda is there any requirement for the backup materials for an agenda to be posted on the secretary of state's website i don't know of a requirement you know that really gets into house specific in how much fair notice do you have to give under the cases we talked about more notices obviously better i don't know that i think it's very possible that your agenda could be sufficient based on the language you put on the agenda as opposed to the attachments before you get to other questions just just a couple minutes remaining let me see if there are any other questions there's at least one question right here when we get to some of the questions we're at least an eye are happy to stay afterwards will answer questions for everybody that you know still has questions but i want to give everybody an opportunity to at least ask one question if they want to and probably just have time just for these one or two right here go ahead please one quick question so if an after request was submitted for an item that really didn't need to be put on an after request once it's put on an after request you have to follow it through as if yeah and if you've done it done i mean really didn't have to be it wasn't an item that needed to be put on an after request but once it was put on it i just thought at that point you handle it as if it was i i i that's what i would do you know i i i kind of made a little bit of a joke but sort of serious about it too once you get that upper request i would respond to it within ten business days with some sort of response no putting aside and just saying this is not in our request you're gonna put yourself in your agency in jeopardy uh... i i'd be much preferable just to respond to it provide whatever response there is within that time not even necessary to put them on public week on the after request but Once it's done, it's done. They've invoked it and you should follow the process through. All right, let's just do the last question right here. Yes, I'm just wondering, if you have minutes and there was a tape recorder running and then the secretary does the minutes from the tape recorder or as she's there also, are you required to keep that tape? Or is that tape just for her use and you submit the minutes as you're supposed to and the minutes stand by themselves just fine? I wouldn't say that the tape is just for internal use only because I think Lisa talked about a finding that we had where the tape was maintained and we said it was a public record. As to the question of whether or not the tape has to be maintained, that's a retention schedule question. That's not an access to public record or open meeting question. There's nothing under either of those laws that requires the tape to be maintained but there might be provisions under the retention schedule policies that require it to be maintained. At your town hall you're saying. Exactly. At that same town hall then we have a unique situation so you shouldn't be spending too much time on it but if that same town hall, when you go to submit your minutes, tells you they don't want them, that they should only go to the secretary of state. You were also already said that they should go to the public body but they don't want them is what I was told or that they, I don't need to submit them, they're not taking them. Maybe that's a private conversation we need to have. I was just gonna say you confused me a little bit let's talk about it afterwards. Okay, thank you, I appreciate that. Let me thank everybody for attending once again. If you're an attorney, make sure you get your CLE credits, your certificates and thank you very much.