 Good morning and welcome to the open government summit This is the 17th installment of this event and I have it on good authority That the first event Which was not at the law school all subsequent events have been at the law school, but that the first event Was at the State House and that there were a total of 150 attendees and For today's event. I'm told there are close to 700 registrants They're in overflow rooms Here at the law school downstairs, and there's some live streaming going on. Is that right? Yeah, so Congratulations to all of you for growing this into the the event that it has become and and Getting together to share information about this extraordinarily important area of law Before I introduce the Attorney General, I just want to Play well not play because I am but played Dean of Roger Williams Law School and and Celebrate the fact that today's program is an all Roger Williams Event the Attorney General Mike Field Lisa Pincinno Milena Lopez Morrow are all graduates of the law school and so So I'm very very proud to be here today, so I I just want to say one other thing about the law school you wait you may have noticed a series of panels Hanging around the law school both downstairs and upstairs mostly in this atrium area outside of this room This is an exhibit called lawyers without rights. It's a it's a joint Exhibit created by the American Bar Association in the German federal bar and attracts the treatment of German Jewish lawyers in the Nazi regime It'll be here for the month of August. It'll be in the providence of the district court the federal district court in September We will be having an event On the 26th of August a speaking program for those of you who are interested in more detail, but otherwise it's a self-guided Exhibit and I welcome you to spend some time there today if they've given you any So it's my great pleasure to introduce the last time I saw the Attorney General he was wearing a straw hat and drinking a massive A Hurricane or looking drink in front of hundreds and hundreds of people and at the follies and he really Yeah, he's a funny guy as it turns out but but I'm Doubly proud to introduce him. He is a what we call a double hawk. He's a graduate of Roger Williams University and the law school And I'm delighted to introduce him to you and I hope you have a wonderful day. Thanks Thank You Dean He's right. He did see me there and I may be a funny guy, but looks on everything, but It's a pleasure for me to be here and I want to thank the Dean for hosting us He's been gracious in his tenure as Dean and prior to that with our office and Candidly with all of the graduates of this fine institution and Although I don't look up to him physically the way I did Dean Logan I can definitely say that I look up to both deans that I've had the honor of being an attorney general And work with in the past five years You know, it's interesting too. You mentioned all the graduates my colleagues and I look out some here Who I graduated with or attended at simultaneously with here at the school But driving in we got held up by a crane That was Coming up on to the lawn to go up to the roof and I said to Paul who was with me. I said my goodness I said I just really realized how long Roger Williams has been here. They need a new roof And I think that's a wonderful testament to the school and everything. It's done for the judicial system in this state the Intricate part it plays not just provide by providing great lawyers several of whom you will hear from today but it's impact on the system itself and that's a real testament to the school and Much like the roof they keep renewing themselves and stay Vital and active and that to me is a sign of a great law school. So thank you Dean for keeping that tradition We all appreciate that. I Also want to thank from Roger Williams Chelsea Huyen horn Sue principi and Charlotte Ferris who helped coordinate this as they do every year Without their assistance that could not be possible for my own office Many people who you will hear for from many you've heard from in the past And that's Mike Field the probably the most knowledgeable person on this topic in the state of Rhode Island Lisa Pincenot, Milena Lopez Mora two other great attorneys who have been doing this now for several years and I Would put up against anyone on this topic. They are just so knowledgeable I want to thank the staff who has been here to help put it all together Pam Lopes and Brown Christina Forsey are an intern with our office and Chris Cato who's helping check out and Amy Kemp who's helped with the meteor and Setting all of this up without all of these folks behind the scenes This presentation couldn't be here today for all of you and as the Dean said almost 700 people Which is amazing and this is all being streamed live through clerk base and Jay Rosenfeld Who has done this now ever since I've become attorney general and he does it at no cost of the state of Rhode Island So I really want to thank Jay for doing this for not just our office and for all of you But really for the citizens of Rhode Island because it is such an important part of outreach and transparency But the real thanks at the end of the day goes to everyone here who is participating Who cares about openness and government who cares about Recent changes and statutes from a couple of years ago who cares about new decisions that have come down in the interim and how they affect the either the government bodies or Law firms or whatever the case may be whatever interest we have in transparency and in government That thanks really belongs to all of you and your commitment to that on behalf of everyone in this state and the interesting part About open meetings and access to public records is that nothing Nothing is Without a doubt a public record Nothing is without a doubt not a public record That's why we have the laws in place. That's why we have a balancing test To ensure that the public interest Is adhered to while at the same time Protecting those privacy interests that should be protected and that is ever-evolving and We'll continue to evolve this year alone We've filed to Open Meetings Act lawsuits and to APRA lawsuits Since I've been attorney general we've had 14 lawsuits to enforce open government laws It is something we take seriously, but more importantly it's something. I know all of you take seriously and With this evolution, I think it is a testament showing that 700 people or almost 700 people are in attendance not just watching it being live-streamed but in attendance In addition to however many are watching it from their office or whatever site they are at So I thank you for that commitment. I thank you for your time I thank you for listening to these folks and all of the knowledge that they want to share the questions that they want to answer and Please take a booklet. It is a great resource for decisions that have come down Decisions that will assist any agency in Adhering to not just the act but really the will of the public to have as much knowledge as we can have in the state of Rhode Island as we've moved forward and continue on so have a great day and enjoy the conference and again Thank you all for coming And I will introduce to you for the first time a secretary of state who is here whose office For those of you who do the postings know you do through her office and last January she came to the new elected officials Seminar we held and she asked that she Attend today and be more intricately a part of this session, which needless to say we welcome with open arms I appreciate the partnership we have with the secretary of state and I want to introduce to you Nellie Gore-Beyer Thank you so much attorney general kill Martin It is wonderful to have this kind of collaboration in state government, and it's wonderful to be here with 700 and so like-minded souls that really value openness and transparency in government. I want to particularly thank Also, Dean Yolnowski for you know his commitment to continuing this, you know when when new people take on you know, you know responsibilities things sometimes change and So it's wonderful to see that Roger Williams law school remains committed To openness and transparency into helping and being a partner to government here In Rhode Island, so I want to you know, of course welcome all of you I'm very pleased to join you here I know there's a number of elected officials and I look through the crowd and I start I'm getting to the point where I'm starting to recognize people a little bit So that's helpful, but to those of you who meet me and then always say your name. Thank you Because it's it's still a work in progress You know Thomas Jefferson once said that an informed democracy will act responsibly And that's what we have here. We have a democracy that's informing itself as to what's happening As secretary of state, I want to make sure that our Rhode Islanders are engaged and empowered to interact with our government and Having you here is a fundamental part of that And so when I heard about, you know, this this forum and actually It's it's funny because I do get these deja vu moments for those of you who know that I was deputy secretary of state I remember being here with Mike Fields Well, let's not say how many years ago When we first opened the open meetings portal and and started to train people on how to use it But I'm here today in a different Role and an exciting one and and to be a you know in that place where you can do everything you can to Make sure the government is transparent and and join people like our attorney general in doing that. It's it's fantastic So I want to make sure that I identify for you some of the people in my office that are here today to help you and and help explain things or clarify anything and first It's our public information division director Stacey To cola who's over there and we have a table outside in the lobby area that you're more than welcome to come by We have a couple of the few remaining government owner's manuals hard copy edition that are out there still But the public information division at the secretary of state's office is Really a key place for you They they will have everything from you know lobbying disclosures public meeting notices in minutes disclosure of state government consultants and and appointments to boards and commissions and Perhaps more even more Important to those of you here. It's the portal through which you follow your open meeting notices. So If you have any questions if you haven't seen the website yet If you sometimes when you're you have to do things at the last minute in your office And it's like oh, I have to post it. I'm gonna go ahead and post it and then you think I don't really know what this program does Or I had that one question, but I had to file before you know I missed the deadline and then you know you put it away and the list of things that you have to do someday Stacey's here. You can grab her ear. You can have those questions that you always wanted to ask about the open meetings portal And I will say this it is on my list of things to do during the next three and a half years to try to revamp and revitalize That website and make it even easier to use at the access So we do have a survey that we're asking people to fill out So if you can spend a couple of minutes on that we would greatly appreciate your feedback the second person that I have here today is the director of our state archives division and That's Gwen Stern Gwen and The state archives, which is conveniently located down in Westminster Street and downtown Providence But provides validated parking for two hours So that you can go don't get scared You can come down and and and spend some time there has Pretty much and you know an amazing Treasure trove of documents that you might need at some point in the course of looking at you know What's happened here with government in in in Rhode Island? And so the public records that we have there are go all the way back to 1638 If you ever wanted to tackle a public policy issue and wondered what's been written about it before the state archives will be a very Wonderful place to get to know So when is also here to answer any questions? It's also the archives is also the place where agencies Develop records retention and disposition schedules So all you know, how long do I have to keep this box of files in my office? That's been there for you know more time than I care to know And and what can be done about its timely disposal or do we have to retain them as permanent records? It also publishes guidelines about records and records issues. So Gwen is another Good person to get to know and to come by and to ask any questions that you have about your records in your office and so with that being said I want to let you go on to the meat of the of the day today and Again, thank you so much for your public service and for your commitment to making government work for all Rhode Islanders. Thank you Good morning to everybody and I just want to obviously thank the Attorney General the Dean the Secretary of State and They've already thanked their staff But I just want to let everybody know and more importantly let them know how critically important all of them were to making this Seem seamless. I'm not going to say it is seamless, but making it seem seamless The Attorney General and has talked about the booklet we added something new to the booklet this year We had talked about checklists in the past and if you go to page 49 of the booklet Lisa and I have done a new and improved checklist for both open meetings and public records It's not going to cover every single provision Both for open meetings and public records But we are going to refer to it as we go through the presentations today and we do think that it will help Help you satisfy these requirements or help you comply with both the open meeting in the public record law and the other point we've had questions in the past from audience members, obviously there's a lot of different members of different public bodies here today and The most important thing is these provisions for the open meetings law and the public record law apply to all public bodies equally There's a couple of instances where that's not true and we'll point that out But otherwise whether you're a police department or a town council or a school committee Other than these exceptions that we'll talk about the Open Meeting Act applies equally so without further ado let's start with the public record law and The first couple slides that Lisa and I have are really to set the foundation for the public record law We think that once we set the foundation And for those of you in the overflow rooms is obviously as part of this book that we've handed out the PowerPoint presentation So you can view it both ways But once we talk about these basic foundational points it helps put the rest of the access to public records acting perspective and As the title implies this is an access to public records act law access to records That's one of the utmost Important purposes of the public record law. The other is the right to privacy and dignity. So these are both dual Dual policy or dual purposes Recognized by the access to public records law and you'll see that theme repeated over and over again as we talk about the requirements This slide Really was was meant to show and get across the point that not everything's an access to public record act request Not everything has to be an access to public record act request there's lots of ways for People to get access to documents through a public body whether it's state or municipal it could be a biosapena It could be through litigation in a document request It could be through the employer-employee relationship It could just be because the public body doesn't mind giving this document out and wants to give it out either with or without a request Or it could be a public record request and Access to public records law or the access to public records law represents the bare minimum of what must be given out if something's a public record it must be given out and one Example might be if I went to the Attorney General's office and I asked for my personnel file Well, I would be entitled to that as an employee of the Department of Attorney General But that would just be me If a public record request was made and even if I made an access to public records act request That's a whole different analysis and the real issue then would be would the public at large be entitled to that At to that document or to that file and the answer is going to be very different There may be some material in there that is a public record. There may be some that's exempt But that's the type of analysis that we're talking about So the first thing to talk about or to focus on is is this an access to public record act request and you see oops And you see that that's really the first question Here is this an access to public record act request identifying whether or not this is a public record request because if it is Then all these requirements that we're going to talk about today are applicable and have to be complied with If it's not an access to public record act request then the access to public records act doesn't apply So that's a very Important threshold question. You presume the documents are public records Don't start with the mindset. We've got a public record request. How can we exempt the document? We start with presumption that we got a public record request the document is public But now we go through the analysis and we'll talk about that analysis But now we go through the analysis to determine whether or not it is a public record or not But that's the starting point. That's the presumption and who is making the public record request under the public record law It doesn't matter Just the same example that I talked about with my personnel file Just by virtue of the fact that I would be making a public record request for my own personnel file The analysis isn't whether or not that document would be a public record to me The analysis even though the document relates to me is whether or not that would be a public record to anybody So it doesn't matter who's making the public record request a Public body has the affirmative obligation to provide Source documents and not responses in narrative form Although a public body is under no obligation to answer questions or interrogatories pursued to the APRA Even if the APRA request though comes in the form of a question, that's not Dispositive if there are source documents that are responsive To the questions you need to produce them So we think the local 302 finding is a good example They're the complaint filed an APRA request seeking quote all debts paid and owed Due to negotiations with the Portsmouth police union including legal fees witness fees and actuary costs now the town responded by Providing the complaint with numerical information in a narrative response and asserted that the complaint's request was quote Just a request for information and not documents But the town presented no evidence or argument that the complaint's request was not susceptible to document production and although our department has never required an APRA request to contain Talismanic language in order to be considered an APRA request Based on the evidence presented we found that the complaint's request was a proper APRA request And the town violated the act by failing to provide the documents responsive to the request Now Is it a public body and the definition under the public records law of a public body is fairly broad But we think Something that may come as a surprise is that a private individual or a private corporation or entity Can be a public body if that person or entity is acting on behalf of or in place of the public body such that that Person or private corporation is then brought under the ambit of the public records law Now in Ray Newport public library there the public library Sort an advisory opinion from our department concerning whether or not it was a public body as that term is defined by the APRA Interestingly while the request for the advisory opinion was pending The complaint filed an APRA complaint with our department contending that the library violated the act when it denied him requests for various records We found insufficient evidence that the library was a subdivision of the city of Newport or acted on behalf of or in place of any other public agency Now some of the factors that were relevant to our analysis included the fact that the library has sold an exclusive authority to adopt and maintain its annual budget and finances Neither the city of Newport nor any other public body had the authority to alter or amend the library's budget The city of Newport had no control over how the library expended its Donations and neither the city of Newport nor any other public body had control over the library director or the board so since the act wasn't implicated the library didn't Violate the access to public records law when it denied the complainant's request for records Now we're still seeing some public bodies deny requests Based on the fact that they didn't create the record at issue or They'll refer the requester to the agency or public body that did create the record And that is simply not the prerequisite if your public body Maintains or keeps the record a citizen has the right to inspect and or copy it from your agency The other thing this slide shows is that a citizen has the right simply to inspect a record and not necessarily also copy it so one of the things we wanted to do a little bit differently this year was how we presented this material and We really wanted to we kind of tested this out in a CLE a couple months ago Present this as a proactive requirement Requirements that are proactive and then requirements that are applicable once a request gets made The real reason for this is there are requirements that your public bodies have to comply with right now Even if you don't have a public record request pending So you know the real incentive is one to kind of divide it up this way and two to hopefully have you leave here today And start looking at these or re-looking at these issues to make sure that your public body is in compliance right now today even before you get a request and This again is where the checklist comes in handy on page 52 we're going to start with the procedures and We put on page 52 of the checklist what your procedures that you have to have procedures and then what those procedures have to Have as a bare minimum So it's really a helpful if you will a cheat sheet or you know literally a checklist Of what has to be complied with every single public body has to have Written procedures regarding how the public can access public records You can't require it the procedures that you promulgate are you've got great discretion There's a couple areas where you can't promulgate regulations in or procedures in you can't require a written request For records that are available pursuant to the Administrative Procedures Act or for documents that are prepared for or readily available to the public but other than that exception you can have a written request and You can't have you can't require that the request be made on a particular form As long as the written request is readily identifiable as a public record request So if your public body has a specific form you can't require it be on that particular form You can require it to be in writing but for the exceptions that I just talked about You see the two cases down below the town of Warren case and the new shawrm case both of these are examples of why Procedures are important the town of Warren case was a situation where the town of Warren had a policy I've written the procedure and their procedure was it all requests had to be made to the town clerk Well, mr. Shapiro made a request to the town manager The response the request wasn't complied with within ten business days We got a complaint and we said well because the law requires towns and municent in public bodies to promulgate written procedures Because the town did that because the town said that their procedure was to go through the town clerk and That procedure was not followed in this case. There was no violation The town of new shawrm case or the new shawrm police department cases is along the same line That was a case where access Rhode Island had filed requests with the police chief The police chief had some correspondences back and forth But documents weren't provided within ten business days and access Rhode Island filed a complaint with our department saying that the new shawrm police department violated the law Again the town of new shawrm had a policy their procedure was properly posted on the internet on their website and their procedure said for Any request that's made to any town department. It has to go through the town clerk That's the that's the focal point And the same analysis that we used in Shapiro we used in in in the new shawrm case Because the request wasn't made to the designated person. It wasn't a valid request under that procedure So we found no violation in that case The one thing I think the lesson to learn from both of these cases One make sure that your policy indicates how the public can make a public record request who that request is made to Make sure it's properly Posted in the public is aware of it But the other lesson to learn from this is make sure everybody in your town knows what that procedure is So that when the town manager or the police chief or whoever it is gets the public record request that they can respond back and say look I'm not the proper person, but this is the proper person And I think if that had happened in these two cases this type of situation may very well have been avoided So make sure not just the public knows And it's kind of obvious to say this but make sure everybody in your town your department knows what that procedure is It's on our checklist, but what do your procedures have to include as a bare minimum It has to be include the designation of the designated Public records officer or unit who to make that request to Where to make the request and how to make the request and again The I afraidy case was another case where the procedures just weren't followed In making an access to public record act request And as I said a copy of these procedures must be posted on your website if your public body maintains a website And be made otherwise readily available So don't just have your written procedures make sure they're properly posted make sure that they're in a prominent position on your website not buried somewhere, you know several clicks away and I've referenced this before You don't have to flip to it now But our procedure is on page 44 of the booklet that we handed out and you see that our procedure Really encompasses what we've just talked about here today Unless you are seeking records available pursuant to the Administrative Procedures Act or other documents prepared for or readily available to the public We ask that you complete our public record form We recognize the exception where requests can't be put in writing Other than that we want them in writing. It's not to be difficult We just want to know that we're getting a public record request we've got 200 people in our office a hundred attorneys and The idea that somebody could pick up a phone in the middle of a criminal case and talk to a prosecutor and say I want these documents and that that somehow constitute a public record request That's a scary proposition for us So we want to make sure that the public knows how to make a public record request We want to make sure that we know it's a public record request that when it comes in so that we can respond to it appropriately Check your procedures. I know I've said this year after year after year, but We have situations where a request gets made It might be an oral request or something along that line the complaints filed then we review what the policy is Of the public body and we see that an oral request is not necessarily prohibited In those cases, then if it's not prohibited by your policy, it's a proper request So make sure you go back and just double check what your requests say what your policies say make sure they say what you want them to say and The other proactive thing the other proactive requirement that's in place even before you get a public record request is this training everybody Every person who has the authority to grant or deny access to public records has to certify training to this department by January 1st of the following year. So what that means is we need to have training Not just have you do the training but have you submit the training certifications for? 2016 by January 1st 2016. So everybody that's here today Will comply with that we actually have the form Again, you don't have to flip to it now. You don't have to tear it out now, but it's on page 48 of the book You can fill it out today You don't have to fill it out today as a matter of fact the form requires a signature of the highest ranking officer of your public body So if that's not you it can't be filled out today But make sure that those are in prior to January 1st of 2016 And you see the two cases there the the Albion case is actually a case that we initiated ourselves. We didn't receive a complaint on that but We do check into things and that was a case where we discovered that the Albion fire district had not provided their certification on time we contacted them tried to have them submit their certification and Eventually what happened is after not having their certification forms we initiated our own complaint And that's a situation right now. That's in a supplemental finding. It's still with our office Trying to make a determination whether or not that will result in a lawsuit or not And the new shawarma case It's the same situation that I just referenced earlier But I think it's instructive for a different reason and that reason is Access Rhode Island in that case filed a complaint against the police chief because the police chief had not filled out the certification form Well, as I mentioned earlier, it was the town clerk Who had the authority to grant your deny access to records throughout the town of new shawarma not the police chief? So there was no requirement for the police chief to file a certification form So just that person or persons who have the authority to grant your deny access to records We're not going to discuss a public bodies Requirements when an app or request is actually made and as many of you know, there are 27 exemptions Found in the act and a common misconception for public bodies is the belief that if the document falls Within one of those 27 exemptions a public body cannot turn it over and that's not true except for Exemption s which prohibits the disclosure of certain confidential records a public body may in its discretion provide exempted records So we think that's an interesting and important point. There are three categories of records that All documents are going to fall into as evidenced by this traffic light And we've used this traffic light symbol in the recent past, but we think it's effective So the green light represents those records which are public and have to be given out The yellow light represents records that are exempt But a public body can choose to give out in its discretion And the red light is that third category of documents of confidential records that must not and shall not be given out So that's the analysis. That's the analysis no matter who the public body is and no matter what the record is Now if a document can be segregated or redacted The record needs to be made available if you cannot Segregate any portion of the record such that the entire record is exempt. You must state so in writing now we get the case of Dela Vera and In that case Dela Vera sought the raw accident report data That was transferred through the Rhode Island accident data export manager for a certain amount of time And the Department of Public Safety denied the request in whole stating among other things The data you have requested contains social security numbers driver's license numbers phone numbers dates of birth Juvenile information and medical and injury information this data cannot be redacted from the electronic data and We respectfully disagreed and concluded that Although we did not question that accident reports certainly contain information that is exempt from public disclosure And certainly may be redacted but based on the evidence in this case This information could be redacted And they have the Obligation to redact that information and yet still produce the document now having made this conclusion We also think it bears noting that we were under no Illusion that this would be a timely and costly process But the fact remained that portions of the data could have been redacted We're not going to show you some examples of real responses where Documents were produced yet redacted now this was taken from an actual photograph not a cartoon and Query whether or not this is a good example of Reasonably segregating a document it may be of no use to the requester because we don't know the identities of these people But it could be construed as a good faith attempt to produce a segregated document In this next one all we know here is something happened with no snack car There was no video this year, but we had to do something to bring some levity to the issue So as Lisa said And as we now get into really the substance of how to determine whether something is or is not a public record It's really a two-part question Doesn't matter what documents being requested. It doesn't matter what public body you are It's the same two questions for anybody or for any any type of situation The first is does one of the 27 exemptions apply and if you can just look at the the booklet that we handed out for a second pages 21 to 24 have the 27 exemptions Starts there on I think the bottom of page 21 with a and goes into be and etc We're not going to go through all 27 exemptions today But on page of 21 to 24 of the access to public records act those contain the 27 exemptions We'll talk about some of them today if a document falls within one of those exemptions one of those 27 It's exempt from disclosure That's as simple as it is If it doesn't fall within one of those 27 exemptions then we get to the balancing test And we are going to weigh the public interest in disclosure versus the privacy interest of the person that's affected by that document We'll talk more about that in a couple moments Now as Lisa said when she talked about documents being reasonably segrable again Just because the document falls within one of those 27 or the balancing may tip to the privacy You're going to have to look at the document and think about whether or not that document can be redacted or reasonably Segrable to protect the interest that may be exempt or to protect the privacy interest and then provide access to the remainder of the Document so it's not kind of goes back to what the Attorney General was saying sometimes these issues aren't so straightforward But that's part of this analysis also Now this first exemption the one that's on page 21 This used to prior to 2012 state that records that were identifiable to an individual were exempt from disclosure That's not the law anymore. There are cases out there that say this still obviously from the Supreme Court They don't disappear. There's findings from us, but the law has changed So what the law says now is with respect to these records that are identity Individually identifiable they're exempt, but only where disclosure would constitute a clearly unwarranted invasion of personal privacy So again, we get back to that balancing test That's the analysis and you see some of the cases that we have had over the last year There's the advisory opinion regarding the Richmond and Portsmouth police departments This was a case where we were asked whether a list of the names locations of detail times of officers was a public record as well as the dates that either sick time or vacation time was used and Based in that vacuum of an advisory request. We said that that seemed to be a public record. There certainly could have been situations where If somebody was out on an extended sick time that that may have been an invasion of privacy We didn't rule that out, but just a list of the detail in times of Details that officers had as well as the dates that vacation and sick time are used just by itself That to us did not constitute a clearly unwarranted invasion of personal privacy Some of the other cases the Jackson case is an important case. I think for everybody out here. It's something that I'm sure You're all gonna deal with from time to time And what happened in that case is that the town of Coventry had two vacant positions one was the finance director and the other was the director of public works and They obviously had applicants mr. Jackson made a request for a copy of the resumes of The person who ultimately was successfully pointed to those two positions as well as a copy of the resumes of the top five People who were not successfully appointed to that in other words the five runner-ups What we said is that? Disclosing the resume of the two individuals who are appointed to those positions would not constitute a clearly unwarranted invasion of personal privacy Now again going back to the reason we say global their home addresses may have been on those resumes their email their phone number That could have been redacted if it constituted a clearly unwarranted invasion of personal privacy But who they were and what their qualifications were in the resumes that to us did not seem to be clearly Unwarranted invasion of personal privacy and we actually You see that the slide references the freedom of information law the federal counterpart to the access to public records act and that's what the federal law had really suggested What the federal law also really directed was that with respect to candidates that were unsuccessful The disclosure of those resumes would constitute a clearly unwarranted invasion of personal privacy So that's what we said with respect to the unsuccessful applicants We did think about whether or not those resumes could be redacted whether the names of those Unsuccessful candidates could be redacted and in other words just provide their resumes But upon our review of those resumes they were so the material in there notwithstanding the name was still so Identifiable to those individuals That we just didn't see that redaction was reasonably possible in order to protect their privacy interest And then the westerly case this kind of goes back to the point that I talked about earlier You know who's making the public record request This was a case where an individual a woman was making a request to the westerly police department for certain records related to herself We said under this analysis again the question wasn't whether she should have access to these documents But the question was whether under the access to public records act Anybody should have access to these documents notwithstanding the fact that she was the person making the request Even though these documents related to herself We said the question really is should the public at large have access to these are these public records And the answer that we came down to was no this closure of these types of records would have constituted clearly Unwarranted invasion of personal privacy now, and I certainly am not talking about this particular case But this scenario has happened very frequently whether it's a police department or some other entity Just because something may not be a public body as I said earlier doesn't prohibit the public body from saying look this isn't a public record We're not going to release it to you under the access to public records act But it relates to you we're going to provide you the record or it relates to you We're going to redact some information related to third parties, but we're going to provide you this record Nothing prohibits a public body from doing that. It just falls outside of the access to public records act and the other part of this Exemption states that this type of information these categories are public records Without regard to whether or not you get into this unwarranted invasion at least under most common circumstances And you see the asterisk the asterisk means that is part of a 2012 amendment and applies not just to public Bodies but also to employees of contractors and subcontractors Working on public work projects required to be listed as certified payroll so it applies in those situations also and the request in those circumstances still has to be made by the public body and The public body then has the obligation to obtain those documents if they don't already have them and There's obviously a lot of law enforcement here today. I want to just run through briefly This is one of those situations that really pertains to one type of entity one type of public body And you see that records maintained by law enforcement agencies for criminal law enforcement are exempt from disclosure But only if disclosure falls within one of these six categories interfere with criminal investigations Or enforcement proceedings to private person of a right to a fair trial Constituted on warrant invasion of personal privacy expected to disclose a confidential source Technique or endanger the life or physical safety of any person. I think law enforcement is pretty Intuned with those Records that relate to the management and direction of the law enforcement agency and the initial arrest report that initial face sheet and the initial Arrest arrest narrative from the arresting officer for adults Those are public records depending what's in there. There may be some redactions that are possible But it's really very fact specific in case specific We're going to talk in a couple moments at least is going to talk about how often or how quickly public bodies have to respond to a Public record request. It's 10 business days and that's true for any but any public body for any request except for this one since instance right here where law enforcement has to respond to a public record request within 48 hours if the request is made Unless the request is made on a weekend or a holiday and in that situation 72 hours and as you see here it applies only to requests that are made within the last five days of The request and then the information that constitutes an arrest log for an adult again It's kind of specific. I wanted to go through it pretty quickly because it's really specific to law enforcement And I think they're pretty well in tune with that go ahead Continue with more exemptions exemption e exempts records that would not be available by law or rule of court to an opposing party Litigation and we cite the Rhode Island Supreme Court case of high drawing laboratories They're the state sued high drawing labs for certain environmental violations And the court held that certain documents were not discoverable under the work product doctrine and that those same documents were also exempt from disclosure under the APRA Now the court held that the APRA is not designed to provide an alternative method of Discovery for litigants and that it was never the general assembly's intent to give litigants a greater Right of access to documents through the APRA that those same litigants would not have under the rules of civil procedure Now that does not mean that you can per se Deny an APRA request if the matter is in litigation And we have seen some public bodies and solicitors say that the matter is in litigation so we don't have to respond or The documents are exempt because they're in litigation and that's not true If it's a public record not withstanding the fact that it is in litigation it remains public So a litigant can still obtain records through the APRA But if the document is privileged through discovery a litigant cannot circumvent that through an APRA request It's still exempt under APRA as well Exemption J Exempts any minutes of a meeting of a public body which are not required to be disclosed Pursuant to the Open Meetings Act. So this refers to properly sealed executive session minutes And that your public body has convened into executive session for a proper purpose So if you forget to seal your minutes There are public records And and this is interesting we have directed public bodies to release properly 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 an improper purpose the matter should have been held in Open Session Exemption K accepts preliminary drafts notes Impressions memoranda working papers at work product the exception to that is if any of those Documents are submitted at a public meeting and they do become public We have a case where it was the Providence Journal versus the Rhode Island Office of General Treasurer fairly recently and our department examined whether or not Due diligence reports were submitted at a public meeting of the State Investment Commission And the evidence revealed that during one of the meetings at least some commission members had possession of and Discussed material contained in these due diligence reports which the Providence Journal sought to access We examined whether or not these due diligence Reports were in fact submitted at a public meeting and our department simply looks at the plain language and the meaning of the word submitted Which means or is defined to quote present for the approval consideration or decision of another or others Applying that plain meaning we concluded that a member of a public body who is provided documents to review prior to a meeting and then brings those documents to the meeting and does not Without additional factors does not come within the ambit of submitted Even though the subject matter of those documents may be discussed at the public meeting One other example of K. The flowery case mentioned that they're the complaint and alleged that the Rhode Island Department of Transportation violated the act when it denied her app requests seeking documents related to quote the draft Feasibility study for phase four of the canachet from bike path Now DOT denied the request pursuant to K because they said it was a draft And there was no evidence submitted that this draft was ever submitted at a public meeting. So therefore we found no violation Exemption M exempts correspondence of and to elected officials with or relating to those they represent Ian correspondence of and to elected officials in their official capacity Think this is a good example of the yellow light. It's exempt, but a public body can turn it over Exemption P exempts all Investigatory records of public bodies Other than law enforcement pertaining to possible violation of statute rule regulation Other than records of final action taken in the Pository finding the complaint sought access to records pertaining to the Investigation of complaints made by a particular individual Against the Kent County Memorial Hospital now based on the totality of the circumstances we Determined that no final action was ever taken. So the documents were properly exempted under P as Part of the 2013 amendment to the APRA Exemption Z Exempts any individually identifiable evaluations of public school teachers made Pursuant to state or federal law or regulation again another fairly recent amendment 2013 AA Exempts all documents prepared by school districts Intended to be used by school districts in protecting the safety of their students from potential or actual threats Now exemption asks and we talked about this. This is the red light. This exam's records reports Opinions information and statements that are required to be kept confidential by federal law regulation state law or rule of court So this is a very good example the Providence Journal There the Providence Journal requested data and images extracted from an individual's Cell phone during a search warrant Now the city denied the request citing that the exemption might talked about that the documents were maintained by law enforcement for law enforcement purposes where the disclosure could be Expected to constitute an unwarranted invasion of someone's personal privacy interestingly the Superior Court Injoined the Department of Attorney General in the city of Providence from disclosing this telephone data So considering the Superior Court's order Our department concluded that the city did not violate the APRA when it denied the request that Properly fell within s as the disclosure was prohibited by court order So we've gone through some of the 27 exemptions and as I said if a document falls within one of the 27 It's exempt as Lisa said it means but for the the exception it means it Can be given out. It just doesn't have to be given out. It goes back to what I stated earlier The Access to Public Records Act representing the bare minimum of disclosure So if it doesn't fall within one of those 27 exemptions then we get to the balancing test Does the public interest in disclosure outweigh the privacy interest or does the privacy interest outweigh the public interest? And whichever way that scale tips that's the way that you either have to disclose the document or Exempt the document either in whole or in part and you know I we added the the slide that had the the cartoon Or not the cartoon but the photograph with the faces redacted Mostly to bring some levity to the situation But I think it does bring to light and it is an example of while there was a privacy interest at least arguably In the identity of those individuals it seemed like it was actually a photograph that was taken after the Department of Justice So I'm not sure about that but There was at least some somebody felt it was a privacy interest But they redacted that and provided the rest of the information. So, you know, there is some usefulness to that slide and I think that it does exemplify the balancing test What do we look at I keep mentioning privacy interest and public interest, but what do we look at? Well, when we talk about the public interest, we're talking about how that information sheds light on government activities And for those of you have been to these open government summits before I always go I always say I hate to read from things, but then I go to read from something And I'm going to do it again just because I think it's so pertinent and it really hits on identifying what this public interest is When we're talking about it. It's a 1989 case from the United States Supreme Court. It's really Probably their seminal the biggest case on Freedom of Information Act That that topic and what was that issue in that case was the media had sought we call it a BCI or a background check the Supreme Court calls it a rap sheet, but they had sought the criminal history background of some individual and What the US Supreme Court said in that case was that the Freedom of Information 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 So that's our focus point. How does this information shed light on government activity and a little bit later on the US Supreme Court in this case? Kind of even hones in on this a little bit more and they say conceivably the rap sheet would provide details to include in 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 was undoubtedly some public interest in anyone's criminal history The Freedom of Information Act's central purpose is to ensure that the government's 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 our focal point and remember again Just because a document may identify somebody doesn't mean doesn't mean first of all it's not a public record as Identifiable and it doesn't mean that even if the identity can or should be redacted that the rest of the document can't be disclosed But that's really what our focal point is when we talk about the public interest when we talk about the privacy interests I think this is a little bit more identifiable to all of us just through life experiences But you see the US Supreme Court a couple years later talking about how when a The subject of a document quest is a private citizen the privacy interest at that point is at its apex at its highest point So again, that's really what we're talking about. It really goes back to the first slide that that we showed here with the purpose There's a dual-purpose here in Rhode Island one to allow access to public records and two to protect the dignity and the privacy of citizens also Now a public body cannot require as a condition of fulfilling a request that the person or entity Provide a reason for the request Nor does the citizen need to provide personally Identifiable information Now we're going to talk about the timeframe a public body has to respond to a public records request and this has proven problematic for some public bodies When you are faced with the public records request you must respond in one of three ways and that Response must occur within ten business days So the first way to respond is provide access to the records within ten businesses The second is to extend the time for good cause and we'll talk about what constitutes good cause in a minute an Additional 20 business days for a collective total of 30 business days And the third way to respond is to deny access to the request of documents So one of those three things must occur within ten business days Now if you're going to deny a request Your denial must be in writing as Mike talked about some public bodies have upper procedures where a citizen can make it oral Request and that's fine, but your denial can never be oral all Denials must be in writing your denial must state the specific reason for the denial for example We don't have any responsive documents or we have responsive documents But they're exempt under B because they contain trade secrets and remember you also must state in writing That no portion of the record can be segregated and The third is you must state the procedures that a citizen has to appeal your denial Which would be to petition the chief administrative officer of that public body Who is defined as the highest ranking official and he or she would have ten bait ten business days to respond a Citizen can file a complaint with the Department of Attorney General Or a citizen can go right to Superior Court and file a civil lawsuit In the Smith finding that we reference there the complaint alleged that the school department violated the act when it failed to provide notice of the appeal process in its denial and We found that not providing the complaint with the documents responsive to the request Because the doc the department did not maintain The documents the complaint's request was essentially denied Therefore we concluded that the school department violated the act when it failed to include the appeal procedure Now I mentioned good cause if you need the additional 20 businesses it must be Put in writing and it must be based on one or more of the following Due to the voluminous nature of the request The number of APRA requests your agency has pending or the difficulty in searching retrieving or copying the records in Pita celli there the complaint alleged that the town of Johnston violated the act when it Estimated an unreasonable amount of time for search and retrieval But based on the totality of the circumstances the fact that he was seeking records for a one-year time frame the fact that the town expended resources for three different departments and The search revealed 375 pages of documents we concluded that the charge of $116 was not unreasonable Similar finding in the town of Smithfield Now the Unavailability of your public records officer shall not be deemed cause as I mentioned It has to be based on one or more of those three reasons So just be cognizant of that that it may be a good idea to have a unit or at least one person Additional or have more than one person be your public records officer in case they're on vacation or some type of leave We're not going to talk about the procedures Prior to providing records now upon request a public body Shall provide an estimate of the costs for the copies? So that's only upon request but it's still may be a good idea to provide an estimate to the requester prior to Providing the records simply to avoid the situation where you've made all the copies only to have the requester dispute the bill So providing an estimate getting the funds up front would certainly avoid that situation now upon request a Public body shall provide a detailed itemization of the costs charged for search and retrieval Your search your retrieval must be performed within a reasonable amount of time And upon court order the costs associated with the search your retrieval may be reduced or waived So I usually begin these presentations by saying please fill out the evaluation forms And that's on the back of your green sheet and I'm going to do that again and ask you to please fill it out But last year when we reviewed the evaluation forms One of the things that we saw over and over and over again was the question How do I deal with a difficult public record request? So we wanted to address that we wanted to answer that and spend a little bit of time doing that When I think of a difficult public record act request what immediately comes to mind is a request that we received at the Attorney General's office is either in the late 90s or the early 2000s You may remember just to put everybody back in that time frame Attorney General Whitehouse had just sued the lead pain industry it was a national lawsuit and At about that time right after the lawsuit we received an access to public record act request from the US Chamber of Commerce When I say it was voluminous or as you said in your Evaluations how to respond to a difficult request. This is what I think of so this is You're not going to be able to read the words don't worry about it But this is part of the request and it goes on and on and on They were also requested records from I think it was 2001 going back to 1950 So any records that were responsive to this and it goes on and on and on and on That was half the request On the on the on the screen is the first 32 items There were actually 64 items I just didn't have the heart to actually go through the rest of those slides with you And I didn't think I could fill that dead air But that was a difficult public record request. So how did we handle that and how? You know your request may not be that difficult But how do you deal with any type of difficult public record request the public record law provides a way to do this Everything you need is in the law So the law says you can charge 15 cents per page $15 per search and retrieval hour with the first hour free and you can charge no more than the actual reasonable cost For providing electronic records So what did we do in this case all the law says we had to provide one free hour search and retrieval and that's what we did I went around to everybody in my office tried to get a handle on what type of documents we had That would be responsive to the 64 items going back to 1950 Who had those documents how cumbersome it was going to be? What type of redaction might be necessary and we spent an hour doing that and at the end of that? We estimated that we had approximately 1.5 million documents that might be responsive It turns out that I told you when I think difficult requests. This is what I think of But it turns out it wasn't that far off because obviously this case went through litigation and I think around two million documents Were produced through litigation so it ends up our estimate after an hour wasn't that far off But we estimated how many documents we had we provided an estimate like Lisa just said of how much the search and retrieval would cost And I forget the number of hours But it came out to be about a quarter of a million dollars, which I think was probably a conservative estimate and we required prepayment They had every right to ask for those records the law gave us every right to charge for those records In the law back when this request was made we said there was nothing that prohibited prepayment But now there's actually something that Expressly allows for prepayment. So that's what we did and that's how we handle it After we asked for prepayment, I'll tell you that they came back and modified their public record request As I recall it literally went from 1.5 million down to eight documents, but but they had that choice to either Tailor it more narrowly or to require you know to pay what was going to entail to Accumulate those 1.5 million documents So the big thing here also to know is if you're going to do prepayment read what it says the production of records Shall not be deemed untimely if the public body is awaiting receipt of payment for costs properly charged under the Access to Public Records Act That doesn't mean you can inflate your cost that doesn't mean you can you know try and make it more difficult You certainly can and the law allows you to require prepayment but That should be used in accordance with the Access to Public Records law not to make it more difficult and Obviously not to inflate what your your your costs may be Because if their costs that are not properly charged then this provision doesn't apply and you may be in violation of the Access to Public Records law The cost to redact the time it takes you to review a document. That's part of search and retrieval Our Rhode Island Supreme Court has made that clear I know from time to time somebody may say well, I just want an electronic document I wanted email to me so there should be no cost that might be true But depending on whether you have to review that document and may possibly redact that document that may not be true So the time that it takes to review a document. That's part of search and retrieval and these two provisions kind of encapsulate what I just kind of talked about one of the 2012 provisions if somebody or some entity is making multiple requests to your public body for requests within the 30-day period You can count those for purposes of this one free hour of search retrieval. You can count that as All one request so if the US Chamber of Commerce had said instead of one request with 64 items If they had given us one request on a Monday one request on Tuesday one request on Wednesday All of those would have been one free hour still within that 30-day period That's only for calculating the one free hour of search retrieval. You still have 10 business days to respond to each individual request So it's just for that one provision And you see below Which kind of talks about what I just mentioned all fees are waived if you fail if you fail to produce documents in a timely manner The person requesting the documents has the option to have them provided in any manner either by fax by electronic by mail and They're responsible for any cost if there is a cost for delivery There may very well not be a cost and if there's not then that's the answer And you can assess a charge for any Fee that you were assessed as a public body for retrieving documents So if you're retrieving documents and you're assessed to charge to retrieve those obviously that charge can be passed down There is no requirement for a public body to reorganize Consolidate or compile data that is not maintained in the requested form An exception to that would be if the records being sought are in electronic form It would not be unduly burdensome to do so now In the biggie finding there miss biggie filed an Apple request to the city on July 18th 2014 and she was seeking documents pertaining to temporary summer employees But at the time the request was made the summer employees at issue had not yet been hired While it appears though these summer employees were hired on July 22nd Just a few days after she made her request and even before the time the city was due to respond The apper states that there's no requirement to compile data that's not maintained By the public body at the time the request is made so there was no violation in that case and Any in addition to a person's right to inspect and or copy documents a person also has the right To receive the documents in any media that the public body has the capability of providing it And then we'll end with remedies if a court determines that a public body has committed a Willful and knowing violation of the act the court can impose a civil fine of $2,000 if the court determines that the public body has committed a reckless violation of the act the court can impose a civil fine of a thousand dollars and can certainly order injunctive relief and attorneys fees Okay before everybody gets up and runs out of the rooms Particularly in the other room. Let me make two really quick announcements number one If you're an attorney make sure you have signed in with your bar number the way it's done now If we don't have your bar number you may not get credit and I know nobody wants to sit through this and not get credit So that's number one number two after the open meeting presentation We're going to move directly into questions and answers if you're sitting in this room That's not an issue because you can ask the question live but if you're sitting in one of the overflow rooms you can either come into this room or we have Forms to fill out or pieces of paper where you could submit those questions to the front desk and look we'll answer the questions that way so why don't we pick back up at 1035 and We'll see you then. Thank you. All right, so we'll start with the open meetings now and just to Continue the theme of this checklist that we've done You'll see on page 49 again. We wanted to present this in a different manner and looking at this as Requirements that your public body has to comply with right now even before you've scheduled a meeting versus Other provisions that may come into play once the meeting has has been scheduled And you'll see on page 49 and we'll talk about this in a minute the notice requirements You know what has to be done for your notices what notices what must be included on the notice Convening into executive session exactly what has to be said So we wanted to really put this and present it in a form and in a manner where it's a lot easier to follow than reading the Law sometimes it's it's difficult to get through the legal ease So that was really our intent there These act does not apply in every situation In order for the act to even 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 open meetings act simply doesn't apply and we'll go through each one of those elements Now what is a public body and as that term is defined by the open meetings act it means any department agency commission committee board council Bureau or authority or any subdivision thereof of state or municipal government So that definition certainly includes subgroups Subcommittees and working groups Now in the Thiebaud finding there a reporter Was told that part of a Smithfield town council meeting was quote off the record And she was Prohibited from taking notes, but the evidence revealed that it was the town manager and not the town council or any of its members That precluded her from taking notes So the town manager could not in and of himself Constituted a public body so there was no violation there similarly with the Supreme Court case of pine versus McGreevy there The moderator of a financial town meeting caused a reporter to be ejected from a meeting or from that meeting and the Rhode Island Supreme Court held that The moderator is only the presiding officer of a financial town meeting and cannot in and of him or herself Constituted a public body So in pine it was not only the fact that involved a moderator, but also it was a financial town meeting Now a quorum unless otherwise defined a quorum is a simple majority of the membership in the Valley Breeze finding near a quorum of the Cumberland fire committee Met at an unannounced meeting and collectively discussed public business Namely appointing the future chairperson and co-chairperson of the committee And we issued a violation because the quorum of the public body met to discuss public business outside a properly advertised meeting Also, we think a common misconception is that the OMA does not apply to members elect And that's not true. The OMA does apply to members elect and interestingly for the Cumberland fire committee meeting The meeting at issue was November 6th 2014 and at the time the members certainly had been elected two days prior on November 4th But they hadn't yet been sworn in But our department has repeatedly held that members elect are subject to the act Now in the Ryan case there that Warren housing authority violated the act by communicating through correspondence concerning public business and this was a relevant and very interesting finding because The housing authority is comprised of five members So three would constitute a quorum and the evidence revealed that a letter Concerning housing authority business was written and signed by one of the authority members And though it appeared that no discussions amongst a quorum of the housing authority occurred The letter was circulated to the two other housing board members They read the letter and they signed the letter Even though there was no discussion and we concluded that acts violated the act in Farber versus the Portsmouth School Committee there It was undisputed that on two occasions a quorum of the school committee met outside the purview of the public And they met on two occasions with potential candidates for school superintendent And the purpose of these meetings was to headhunt Talent to apply for the position of school superintendent The meetings involved a discussion of the potential candidates views of education issues Their management style and they discussed their ability to manage So we found violation because a quorum of the school committee met outside a properly advertised meeting To discuss public business Now there's that 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 total a quorum. So if a public body is comprised of five members Three would be a quorum So if two members met and discussed public business that wouldn't be a violation because we haven't triggered the element of quorum But if one of those two members goes on to speak to a third member You're essentially Circumventing the act by having these little meetings each less than a quorum, but they're they're collectively totaling a quorum So going back to the Ryan finding three members signed a letter, but at no point were they all together to discuss public business Nevertheless, they took action by signing the letter In something to be cognizant of is that a quorum can be created not only through members of a public body But through a third party or a conduit like a school superintendent or a town manager or mayor So as Lisa said when you start to think about does the open meeting act apply? And I guess this goes back right to the public record law And we said you need to identify right off the bat whether or not a public record act request has been made to you For public bodies in the open meeting arena. It's really the same thing is what we're doing Subject to the open meetings act. Do we have to have post notice? Do we have to comply? Maintain minutes and Lisa mentioned the first two threshold minute elements Quorum and a public body the third element is really where a lot of the discussion focus Gets focused in on which is this meeting element Has your public body or has a quorum of your public body? Convened to have a collective discussion and or take action upon a matter that they have supervision control Jurisdiction or advisory power and as Lisa said, it's not just one individual Meeting with a quorum of members, but it could be a series of meetings that totally quorum So let's go through some examples because I think that's really the best way to kind of talk about this And just because we're in Bristol, I'm going to use the Bristol Town Council as an example I don't even know how many members are on the Bristol Town Council, but that's just say five And let's just say that a quorum of the town council is here today Did they have to post notice is this subject to the open meetings law and the answer is probably not They have a quorum. They're a public body, but they're not here today Collectively discussing something amongst themselves and or taking action Upon upon a matter that they have supervision control jurisdiction or advisory power And that's the same even if one member of the town council was to ask us questions And we were to respond and probably even another different member on a different subject They're not collectively discussing something now if during the break they had gone outside and said hey That's all get together and talk about this meeting. We're having next week Well, that would have been subject to the open meetings law They would be collectively discussing something that they have supervision control jurisdiction or advisory power And that's really what happened in the one socket case the ward case During a break of one of their meetings. Some of the members got together to talk about some subject matter We said it was no violation because there was no evidence that it was a quorum of members But if there was a quorum that would have been a violation So again, even if in my hypothetical of the Bristol town council being five members if two members had gotten together Either today or after or during a meeting to talk about some matter that they have supervision Jurisdiction control or advisory power over that by itself doesn't violate the open meetings act You don't have a quorum now if those two members then went to one other member Then you would have had this walking quorum. So that's really how this works Or or an illustration going out to dinner with your town council members That doesn't violate the act because again assuming you're not having some discussion about A matter that you have supervision or control or jurisdiction power over Public hearings are another good example when I hear public hearings. I usually think of either a town manager or perhaps Representative from an agency at the front of the room and the public having comment. Well There's probably not a quorum there, but even assuming there's a quorum even assuming there's a public body The public body themselves in a public hearing context usually is not having a collective discussion or Or taking action, it's usually the public that's having the input and the conversation is usually going one way Or perhaps back and forth, but it's usually not the public body themselves having that discussion And Lisa talked about the pine versus McGree be case. Well, that was a case where the Supreme Court said that the financial town meeting something akin to a public hearing Doesn't doesn't implicate the open meetings act because there's no collective discussion So the one exception is you can use electronic communications to Schedule a meeting that does not have to be Posted you can have discussions amongst your fellow members or your public body through electronic commutions solely to schedule a meeting if you talk about the substance of the meeting then you've stepped over the line But just scheduling the meeting that doesn't violate the open meetings law and I purposely haven't really talked about the electronic communication yet because I want to do it right now and This really continues the discussion that we were just talking about with a meeting a listserv in other words one email If I'm the president of the Bristol town council or the clerk of the Bristol town council Just sending out a an email blast to all my members that by itself doesn't violate the open meetings acts The same thing is talking in person There's no collective discussion going on with just one email going out to the rest of the council now If somebody in the council replies to all now you've stepped over the line now You've got that collective discussion going so it's really easy to go from an innocuous non-violation Here's all the information you need through an email and you may not have any intention You may put in the email don't reply, but if somebody does reply then you've started this collective discussion Same thing with Facebook and Twitter and all these other social media Just putting on your account some subject matter that by itself doesn't violate the act But if one of your fellow council members starts to reply and communicate And joining that discussion. Well, that may start to determine whether or not you've got this rolling quorum So if the quorum of members did continue the post that would implicate the open meetings act And We get the question every once in a while, you know, I'm a member of this public body I'm away on business Can I participate by telephone by conference call by Skype and the legislatures address this and the answer is in most circumstances? No, you have to be physically present to participate at a meeting for members The two exceptions are one if you're on active military duty or two if you have a disability and cannot otherwise Participate and in the event of this latter situation The governor's commission on disabilities is promulgated rules and regulations and you have to follow those rules and regulations and get a waiver To participate electronically, but other than that you have to be physically present to participate in the meeting The opening exact requires two types of notice and the notice provisions are on your checklist But the first is the annual notice in which a public body at the beginning of each calendar year Shall give written notice of all their regularly scheduled meetings And the second notice that the public body shall give is this Supplemental notice within a minimum of 48 hours before the date of the meeting notice. It's 48 calendar hours. It's not 40 business hours Now your annual notice must include the dates times and places of all your regularly scheduled meetings Your supplemental notice must include the date the notice was posted the date time and places of your meetings and a Statement specifying the nature of the business to be discussed In the McCarthy award finding there that the one second school board did not violate the act Since the agenda items were specific enough to adequately inform the public of the nature of the business to be discussed the agenda items indicated that the school board was going to discuss and may vote on administrative contracts slash job performance and Collective bargaining local 1137 contracts so the evidence revealed that the school board voted to extend the school superintendent's contract And voted to approve the local 1137 contract. So these agenda items were not misleading It's interesting to stand in the position at least and I stand in because obviously we're at the Attorney General's office Obviously, we've seen complaints being filed throughout the years And I think we're actually not sure that I've actually researched this But I think we're starting to see less complaints on this requirement that Lisa just talked about specifying the nature of the business to Be discussed. I think public bodies have been doing a better job of this in the last couple years But I really want to focus up and really have all of you do even a better job So the requirement here that your notice Provided statements specifying the nature of the business to be discussed the Rhode Island Supreme Court actually examined this in 2005 And the analyst I'm sorry the Tanner case was a case where the East Greenwich Town Council posted their agenda and they indicated that they were going to do some interviews for several vacant town positions and The agenda indicated that at 10 o'clock John Doe would be interviewed at 1030 Jane Doe would be interviewed and so on Got to the Rhode Island Supreme Court and they said that violated the open meetings law and What violated the law wasn't so much that the interviews were conducted and that there was insufficient notice for the interviews But what violated the open meeting law? The court said was not only did the town council conduct interviews, but after the interviews were concluded they made appointments That the court said there was no notice and you see The court here talking about the notice requirement that it's intended to establish a flexible standard aimed at providing fair notice to the public under the circumstances, that's what the court says in Tanner and you know, unfortunately, it's not a lot of Guidance for for all of you who have to do these notices, but that's what the court says in 2005 Now in 2013 the court looks at this same provision again an analog and analog was a case where there was a Improvements being made or renovations being made at congregation Jesuit Israel. There was a deadline by which those renovations had to be completed by and Obviously they were going to go beyond those renovation deadline and the attorney sends in a communication seeking an extension and That's the agenda item that appears on the board of review agenda communications requests for extension from Turner Scott regarding petition for congregation Jesuit Israel. The question First at the trial court and then at the Supreme Court was did this provide a statement specifying the nature of the business to be discussed? Trial court said yes, no open meeting violation Of course it did. It goes up to this Rhode Island Supreme Court and they unanimously reverse. They say no When you read through their opinion, it's pretty evident that not only do they say no But they kind of get to the point of almost saying not even close At One point in the court's opinion They talk about how the agenda item and I think even if I think this is good guidance for everybody About how specific your notices now need to be particularly when you're dealing with street addresses or property That was the issue here an intellect The court says that the agenda was completely silent as to which specific property was an issue the agenda item provided No information as to a street address a parcel or lot number or even any identifying petitioner case number We conclude that designating the agenda item under the rubric of communications does not even remotely indicate that any action will be taken with respect to the agenda item and Then later on the court says no way does the agenda item give notice that the request for extension was to extend the temporal Parameters then in effect for the purpose of completing or substantially completing the improvements So you see the court really going out of its way to say this agenda item wasn't even close Now I know going way back those of you that were involved in school committees There was many years ago or several years ago or requirement to post your notices in the newspaper But none of that is applicable now So Lisa and I actually when I said that we're starting to see public bodies doing agendas better We're starting to see 10 page agendas and sometimes even more There's really no disincentive and there's only incentive for you to be as specific as possible on your notices They don't have to be posted in the newspaper anymore at least under the open meetings law So providing that extra notice or being as specific as possible Really can only help you with respect to this requirement So Tanner and Anilic concerned open session, but then what do you what about executive session? Notices how specific to those have to be and we keep going back to our finding back in 1999 It's still the best precedent out there the courts haven't dealt with this yet And what we've said is that if the matter to be discussed in executive session is something that's publicly known such as ongoing litigation that's already been filed or Perhaps a contract of a town employees is about to expire and that's publicly known then you should provide a more specific agenda item List the case number list the case name whatever it may be if the matter is not generally known that a more general agenda item may be appropriate Like anticipated litigation or personnel or something along that line The big thing with executive session notices and we're gonna have some examples of those in a moment Be sure that your agenda is really clear as to how many specific items are going to be discussed in executive session Somehow your agenda has to indicate Whether it's two matters that are two different matters that are being discussed in executive session and you're going in under for the first matter You're going in under two separate exemptions Or whatever it may be clearly identify how many different matters are being discussed in executive session Don't use boilerplate language. Don't do what happened in one of the cases that we had this year Which is site exemptions one through ten I'm not trying to suggest that if more than one exception is an applicable you can and should cite that Or at least may cite that but just citing one through ten You know as a catch-all that doesn't really work either And we've really talked about this at other summits these are some improper agenda items very broad We really don't even see public bodies doing new business and old business anymore Which just shows to goes to show the progress but if you have some agenda items such as treasures report or Superintendent's report make it more specific provide some indication some statement specifying the nature of what is going to be discussed and You see the last item on the on the slide any other matter that may come before the board Let me make a couple points about this number one Clearly does not comply with the open meeting law clearly does not provide a statement Specifying the nature of the business to be discussed and what we've actually heard from some public bodies is well We include that our agenda just in case some other matter comes before us That that happens that we want to talk about after we post the agenda So by itself that indicates that you have no idea what's going to be discussed under the subject matter And if you don't certainly the public doesn't have it doesn't have any idea So doing that is a catch-all that does not work. You can't discuss anything under under that type of general Notice what you can do and we're going to talk about this in a couple minutes But I do want to foreshadow because I think it is really important And I think it's underutilized is you can amend the agenda. We'll talk about that in a couple slides as Mike mentioned we're including some Examples of actual agendas and the next four slides will do that here Under the agenda item entitled correspondence. There's specific references So this is an example of a Good agenda item. There's four items underneath it. They're going to receive and act upon some resignations They're going to receive the annual report. So that is detailed enough The next one also Talks about going into executive session under a to litigation Obviously the case has already been filed. That's not anticipated litigation and our findings have held that The case has been filed. You need to put the name of the The title of the lawsuit. So here we have the title of the case and even a reference to the docking information Now the next slide There's here there's a suggestion that there's going to be two different matters under a three Review of the district safety plate and a for a matter relating to a student privacy record but I think arguably it could have been a little tighter and a little clearer because It's not entirely clear From reading that that it is two separate matters But if we compare that to the next slide here they list each matter and The corresponding Statute section number under which they're going to be going into executive session. So that that's a great example of a very good Agenda we're now going to move to posting requirements Now your annual notice must be posted on the Secretary of State's website And it must be made available to the public upon request Your supplemental notice must be posted at the principal office of the public body Holding the meeting if no principal office exists that it must be posted at the building where the meeting is going to be held It must also be posted at at least one other prominent place within the governmental unit and it must be filed electronically with the Secretary of State We had a case the We're the wood wall book retirement board violated the act when it held a meeting on less than 48 hours the board submitted that it inadvertently posted notice But the evidence suggested that the board knew that it's posting failed to comply with the 48-hour provision yet It's still convened the meeting meeting and this was a case where our department filed a civil lawsuit against the walk retirement board So during the public record presentation I said that was one area that we really wanted to hit harder and focus on and we're doing the same thing with the Open Meetings Act There's one part right now where we wanted to focus everybody on really spend some more time Under the Open Meetings Act there's certain time frames when votes and minutes have to be made available to the public and That's what we wanted to stress and to be perfectly honest when we've talked about this checklist from point from time to time The the idea of this checklist really began with these provisions and these slides It starts to get at least in our mind sometimes confusing or complicated. I think may be a better word With respect to votes and you see in parentheses all that that designation or the significance is all public bodies All public bodies have to provide or have to disclose their votes By individual member voting within two weeks of the vote It has to be done at the office of the public body so Every public body has to comply with that again within two weeks by individual member and you see that the note there There's no extension for that time frame The Planning Commission case the Carney case Is instructor for two different reasons. This was a case where the Planning Commission? Held a a secret ballot or a paper ballot vote They said that there was a preliminary that they were going to conduct a preliminary vote. They were going to do it by paper ballot We have said that under the Open Meetings Act that the Open Meeting Act does not allow that So that violated the Open Meetings Act just by doing a paper vote So your votes do have to be oral They do have to be in public and as this slide says they obviously have to be disclosed by individual member within two weeks of The vote the other thing that was the violation or the other point in Carney was not only was there a paper ballot vote But the vote was never disclosed. It was never disclosed within two weeks of the vote It was never disclosed within the minutes the reasoning being because it was a court-on-quote preliminary vote But that didn't matter. It was a vote under the Open Meetings Act and designated it as a preliminary or straw vote or whatever it might be Didn't avoid these provisions So that's with voting the same thing with executive session votes All of your executive session votes have to be disclosed upon reconvening into open session except or unless Doing so would jeopardize a strategy negotiation or investigation that was done in executive session We have said that once that jeopardy dissipates There's an affirmative obligation on the public body to disclose that vote So if we go into executive session in July to talk about settling the lawsuit Obviously that vote to settle it up to a certain dollar amount disclosing it at that point which would jeopardize the strategy But once that case is disposed of there's no harm. There's no jeopardy and that vote should be disclosed Or any type of once the jeopardy dissipates is an affirmative obligation It's kind of related you see on the bottom. There's no some supervision for executive session minutes. We get the question When do the executive session minutes have to be made available if they're sealed? There's nothing that automatically unseals executive session minutes. There's no sunset provision There's nothing that says that once the jeopardy or the purpose of the executive session is dissipated those minutes become unsealed That doesn't mean that your public body can't go back and unseal them They can but there's nothing in the open meeting act that does that automatically over a period of time so to go back to the the The checklist on the bottom of page 50 going on to page 51 On the bottom of page 50 are the requirements for your minutes the bare minimum of what has to be in your minutes The date time in place of the meeting the members who are present or absent a record by any individual member And any other matter that a member of the public body wants to have to be included in the minutes So that's on the checklist and you see those items just to make sure that you've your minutes contain all of that Now as I said, this is kind of where the whole idea of the checklist really began because it does start to get a little bit complicated The first thing is we're going to talk about disclosing the unofficial minutes and your approved minutes or sometimes official minutes There's a distinction between official and approved minutes and I want us all to recognize that right off the start unofficial minutes haven't been approved approved minutes by Just that word indicate that they have been approved so there is a difference there and we're going to talk about both of those minutes and On page 51 of the checklist you see that we've really divided it For all the different requirements and we've underlined which is applicable for which public bodies and you see the parentheses here This is applicable to all public bodies the asterisk is because not only is this Applicable to all public bodies, but there's another provision that's going to be applicable to fire districts and fire companies We'll talk about that in a second but with respect to all public bodies your unofficial minutes have to be made available to the public at the office of the Public body within 35 days of the meeting or at the next regularly scheduled meeting whichever is earlier now a couple things with this number one is You're dealing with unofficial minutes The excuse of well, we didn't put the minutes out there within the time frame because they haven't been approved That's not what this provision says this provision says that your unofficial Unapproved minutes have to be made available within that period of time within 35 days of the meeting or with or Excuse me or at the next regularly scheduled meeting whichever is earlier. It's not the next meeting. It's the next regularly scheduled meeting So be aware of that There are two other provisions that are really applicable for this one is The exception executive session minutes that are sealed don't have to be disclosed within this time period and you can Extend the time period for following these minutes making these minutes available as long as the public body does so One prior to the expiration of the time and they vote by majority vote. So you've got that time period You've got the minutes have to be made available at the office of the public body And you can extend the time period for filing those minutes easy enough Now with respect to fire companies and actually what the law says is with respect to all volunteer fire companies associations fire district companies or any other organization currently engaged in extinguishing and preventing fire hazards Not only do fire not only do fire companies in the shorthand have to comply with the prior slide But they have to comply with this provision Their unofficial minutes have to be made available within 21 days of the meeting But not later than seven days prior to the next regularly scheduled meeting which ever is earlier And it has to be posted on the Secretary of State's website. So they have the first slides time requirements these time requirements Rather than posting or making the minutes available at the unofficial public the office of the public body these minutes have to be posted on the Secretary of State's website for fire companies and There's no extension. This is where most of you are thankful that you are not associated with fire companies So that's with unofficial minutes now we get to approve minutes and With respect to approve minutes, this does not apply to everybody. It applies to public bodies within the executive branch of state government All state public and quasi public boards agencies and corporations and again all these fire companies So this doesn't apply to towns They have to make official and or approve minutes available On the Secretary of State's website within 35 days of the meeting again That's the time frame available and posted on the Secretary of State's website and you see below no extension. The one exception is Public bodies that act in an advisory capacity. They do not have to file minutes with the Secretary of State's office Now at least in my mind this starts to get a little bit confusing Maybe if you're just associated with one public body You're able to focus a little bit more on what your requirements are But what we just saw and you know, unfortunately Lisa and I talk a lot about what the violations are and what public bodies have Done wrong and we don't do that to you know belabor the point But we do it just you know, hopefully to learn from those mistakes for everybody that's here today One of the things that one public body did Western Coventry fire district with these requirements is put the Notice or put on their notice when these minutes had to be disclosed And I know you're not to be able to read this we focus in but this is their notice for the June 11th meeting and and this slide we've blown up the pertinent part and What they put right on their notice is that the unofficial minutes of this meeting must be posted on the Secretary of State's Website Prior to June 11th, and that's complying with these time requirements, so they put it right on their minutes when the deadline is for that Now they've done it here for their unofficial minutes Maybe they did or didn't do it somewhere else for their official minutes, but That's not a bad idea. It's something that perhaps public other public bodies may want to take in and Know right off the bat when those requirements are so trying to keep track of that I felt that that was a pretty good way of doing it and Then disclosure of executive session minutes the executive session minutes have to be disclosed at the next regularly scheduled meeting Of course unless they're sealed executive session minutes unless they're properly sealed and again This is a situation where there's no extension possible So it's all in that checklist and hopefully that provides some guidance and some help to all public bodies Now all public bodies must ensure that your meetings are accessible to persons with disabilities We include the westerly finding there because in that case We issued a violation because the evidence revealed that the entry doorways were locked Now subject to reasonable restrictions a citizen is allowed to audio and or video tape an open session Meeting now their restrictions would be to preserve the orderly conduct of the meeting or Guarding the public facility against damage caused by the recording equipment And it kind of segue into the the home stretch These are requirements that are applicable right at the meeting We've been focusing on these proactive or some of these other requirements that may be applicable even though the meeting is not going on but among the provisions or the requirements are What has to be done when you want to convene into executive session and Lisa's gonna go through the executive session exceptions next but you have to articulate an open call prior to getting into executive session and That's on page 49 of the checklist We've again listed the items that have to be done and checked off before you get into executive session You have to have a majority vote to convene into exact into executive session You have to stay in open session and record in the minutes the section that you're convening into executive Executive session for you have to state an open session and record in the executive session minutes The statement specifying the nature of the business to be discussed in executive session And again, this is a really good point where you can make clear how many different items or how many different Matters are being discussed in executive session You can't discuss any other matter that is not on the agenda or not part of your executive session even if you're going to even if you're in executive session for one matter and You realize that there's a litigation matter and that would be appropriate to discuss in executive session You can't discuss it in executive session without an open call So you can only discuss in executive session those matters that are part of the notice and part of the the open call now the invitation into Executive session lies with the public body and not the individual seeking to attend In the fuller case the complaint alleged that the school committee chairperson Was improperly invited into executive session at a town council meeting The complaint alleged that the school committee chairperson provided advice established qualifications and developed questions to ask Candidates for the assistant solicitor for schools position while in executive session at the town council meeting But based upon our departments in camera review of the executive session minutes and the audio recording of the executive session The school committee chairperson was present Only during the time when the town council was interviewing candidates for the assistant solicitor for schools position And it appeared that his role was simply to explain the position Since four out of the seven town council members were new to the town council and as such we found no violation there As Mike said, we're going to start to talk about executive session in the Open Meetings Act states that every meeting of All public bodies shall be open to the public But there are ten reasons or ten purposes that executive session or closed Session would be appropriate and we'll talk about a few of those Now all of the reasons are obviously listed in the statute and they're also listed in your checklist One reason a public body may but is 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 But there are 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 state in its open call and record in its open session minutes that that required notice was provided Now this does not mean that the affected person can attend the closed session It only means that the affected person can require the public body to have the discussion held in open instead And it's interesting that this is one of the places in the Open Meetings Act that states the failure to comply with providing notification Shall render any action taken against the affected person null and void You'll also see the word discussion we put in bold and our findings have held that this means a public body Can discuss but not vote in executive session regarding the affected person Now another appropriate purpose would be under a to sessions or work sessions pertaining to collective bargaining or litigation and What constitutes litigation is fact specific? The Open Meetings Act permits discussions not only of pending litigation but also litigation which has been in fact threatened or is imminent or where litigation is reasonably anticipated Now in the Fitz Morris case the complaint alleged that town council convened into executive session Under a to for litigation, but he alleged because all the parties Involved in the litigation were present at the meeting. It should have occurred an open session But we concluded at the meeting of the town council in executive session with DEM and DEM's legal counsel to discuss litigation which was pending Was an appropriate topic under a to another reason would be under a for Investigative proceeding is regarding allegations of civil or criminal misconduct and a 8 and this is for school committees can go into executive session for the purposes of conducting school or student disciplinary hearings And reviewing other matters which relate to the privacy of students and their records But again, you have to do the procedural requirements that we talked about under a one The affected student shall have received advanced written notice that he or she may require that the discussion be held an open session and Just like under a one you must state in your open call and record in your open session Minutes that that notice was indeed provided So at a couple points during this presentation I've really have honed in and said you can only discuss whether it's an open session or an executive Session what has been on your agenda? That's not exactly true The reason it's not exactly true is because you can amend your agenda and really the the big I guess practical point is what happens when you're at your meeting and Some matter comes up after your your agenda has been posted that you want to discuss at the meeting or You're discussing some matter at your meeting which has been posted, but now the discussion is starting to veer in another direction Well all public bodies and school committees are handled a little bit differently So let's leave school committees to the side for one second But all other public bodies can amend their agenda right at and during the meeting you do so by a majority vote of the public body And you would vote to add whatever topic it is that you want to discuss on to the agenda The West War case that was a case where the agenda just said general discussion as I said earlier general discussion Is not appropriate doesn't provide a statement specifying the nature of the business to be discussed But had the board of canvassers in that case Amended the agenda to discuss the subject matter that they wanted to talk about they could have done that lawfully now The one or the two things that you have to be aware of if you're going to amend the agenda It's for informational purposes only you can't vote on the matter so you can discuss it But you can't vote on it unless it's been posted within 48 hours The two exceptions to that you can vote on a matter if it's an if it's an emergency meeting if it's necessary to address an Unexpected occurrence that requires Immediate public action to protect the public at least we'll talk about that very limited exception Or you can vote to refer it to another person or another public body for some action But other than that you can amend the agenda You just can't vote on any subject matter that's been amended School committees is a little different. I just highlighted that with respect to all other public bodies They can do this right at the meeting during the meeting school committees can't do this After or within 48 hours of their meeting So once the 48 hour window closes to the school committee meeting they cannot they can no longer amend the agenda They can amend the agenda prior to that And you see how to do it you've got to post the notice within 48 hours at the two location at two locations the Secretary of State's office the school district's website Procedures have to be available And the original notice has to indicate how the agenda will be amended For those of you at school committees wondering why it says that and how you know You can't imagine your agenda within 48 hours, but you have to post your agenda within 48 hours You kind of have to remember that this was put into the law when school committees had to post their notices in the newspaper So this was to allow public bodies or allow school committees to post their notice in the newspaper But still amend their agenda within 48 hours of the meeting But there is no provision to allow a school committee to amend it within that 48 hour window Now public comment and this slide does not apply to school committees a public body may respond to comments Initiated by a member of the public during a properly noticed open forum Now for school communities, it's a little bit different on public comment. The public comment must be submitted in writing by a member of the public during the public comment session And is for informational purposes only no voting Now there's nothing in The open meeting exact that requires a public body to hold an open forum session or to entertain or response any topic Nor does it prohibit a public body from limiting comment on any topic Now Mike mentioned an emergency meeting An emergency meeting may be Convened on less than 48 hours, but there are some procedural requirements. It has to be upon a majority vote And it has to be convened to address an unexpected occurrence that requires immediate action to protect the public So a good rule of thumb is if it can wait 48 hours. It's not an emergency also In order to convene an emergency meeting the meeting notice shall be posted as soon as Practicable and it shall be electronically filed with the Secretary of State upon meeting and Excuse me upon meeting the public body shall state for the record in the minutes Why the matter must be addressed on less than 48 hours in a public body can only Discuss the issue or issues which created the need for the emergency A few years ago our department filed a lawsuit against the public body that posted its agenda seven minutes Before the start of the meeting We found no evidence that supported the public body's conclusion that the meeting rose to a level of emergency Nor that seven minutes notice was quote as soon as practicable The public body by its own admission Realized that the meeting had not been properly posted yet nonetheless convened the meeting So we concluded that that public body willfully and knowingly violated the act Now any citizen or entity of this state who is aggrieved as a result of violations of this chapter may file a complaint With the Attorney General and we're going to talk about the Graziano case There are open meetings act lawsuit was filed concerning notice for one of the lottery Commission's meeting We are in its director John Hawkins was terminated At that meeting mr. Hawkins as well as his attorney miss Graziano were both present Finding that the lottery Commission's notice was in fact deficient the trial justice Determined that the lottery Commission violated the act but an appeal ensued and interestingly on appeal the Rhode Island Supreme Court found that it was Unnecessary to address the merits of the lawsuit because quote the plaintiffs Graziano and Hawkins Had no standing to raise the issue since both plaintiffs were present at the meeting and Therefore were not agreed by any defect in the notice The court went on to say it's not Unreasonable to require that a person who raises the issue of defect in notices Be in some way disadvantaged or aggrieved by such defect And a Citizen who believes a violation of the act has occurred may file a complaint with the department of attorney general or They could file a civil lawsuit in superior court And again similarly in the penalties a court may order injunctive relief and Declare any actions taken by the public body to be null and void May impose a civil fine of up to five thousand dollars for a willful knowing violation and may award attorney's fees and costs Well that completes the open meeting presentation half From past experience. I know that you all have questions. Some of you have written them in and given them to us today For those of you that are in the other rooms that would like to ask questions You're certainly welcome into this room. There's room or seats in this room You also can do it by putting it on paper And I'm going to exchange this point Lisa from Elena Milano Lopez more is gonna answer some questions and I think Pam and Anne are supposed to come in for those of you that are in this room. Please wait you get the microphone because the microphone is not in front of you then Be able to hear your questions so with that Milano you want to Get the first written question or Anne's got somebody right there and we'll get to as many questions as possible Hi, you indicated that an emergency meeting could be convened By a majority vote. However, my question is how do you get that majority vote without violating open meetings? Act because you're not in a meeting at the time It goes back to the slide that we said earlier you can communicate with other members electronically outside the public purview to schedule a meeting So there's nothing that violates the open meetings act to get everybody together on the phone Say can you come to the meeting at 10 o'clock tomorrow that doesn't violate the open meetings act? What would violate the open meetings act would be to discuss the subject matter over the telephone, okay? You say there's a need of a majority vote. So you're actually voting to have that meeting. That's my question I mean, I don't really look at it as voting to have the meeting You're telling people or you're trying to find out people's availability. Can you have the meeting on this date? You know, can we get a quorum together and you know, that's part of the scheduling the meeting You're not getting into the substance there. Thank you Why don't you sure go ahead? Can you hear me? So this was a question we received during the break town receives an app request for EMS log of rescue runs the log displays the address Some have they display the first and last name of the individuals and it just displays a general reason for the call For example, EMS call no motor vehicle accident The question is I think we should produce the log with the names redacted but leave addresses unredacted any concerns with providing home addresses So under the access of public records act the public body has a discretion to exempt documents The 27 documents that are exempt. They don't have to but they can it's their discretion When you're talking about personal information such as home addresses, you want to keep in mind the privacy interests of those individuals But for purposes of the APRA, you know, you want to do that balancing test like do you really need to know that the address? And how does that advance the public interest right Pam or and other questions in this main room? I Have a question over here and in the example where you you cited the difficult APRA request In your example, that's a pretty extreme example, but I can think of examples where For example police department gets a request for a log over the last year and There's a significant amount of redaction that has to be done going through those documents You timely advise the people within 10 business days that you need the additional 20 days It meets all that requirement But what when you find yourself in a situation where you have such a Voluminous amount of redaction to do that you may not be able to fit it in the 30 business days Is there a provision that allows you to go beyond that or there unfortunately is not There's nothing in the act that says within 30 bit that that allows you to extend it after that 30 business days I mean arguably maybe you could file a declaratory judgment action in court, but That was actually a provision or a thought that we had in 2012 and it just you know through the legislative process And the give and take that's something that just fell out But you're right There's nothing that allows you to do it after 30 business days and just keep in mind 30 business days is 45 days so You know I'm not excluding the possibility that you're right that there may be times where you can't get it done within that period of time but I found that usually you're able to do it particularly you know using the tools that the public record law provides Received a similar question to that during the break Except in this question the it's unclear Why the question is if there is an extremely lengthy request what is that is impossible to respond to is there in the Secretary time frame. What do you do in this question? I don't understand what you mean by impossible, but if it's if it's the case that you don't understand the request or You don't know what they're or basically if you don't understand the request Feel free to call and ask the requester if they can be more specific and detail and that might be able to narrow your search Down a little bit and always feel free to get payment up front That way you don't start searching and redacting and then you don't ever receive the payment Good morning So the question that I have relates to Oma and specifically the definition of a public body and within that the definition of a committee So if a town Authorizes an ad hoc committee and let's say for example it is to do a study on energy efficiency in the town Would that ad hoc committee fall within the definition of a public body? I? Would say probably the question that type of question whether or not some entity or sub sub committee Is subject to Open Meetings Act whether it's a public body? That's one of the more difficult questions that we get and I think it's very fact. I think the answer is very fact-specific I took from your question that it was basically an appointment by the town council So the fact if the appointment was by the town council or by some other governmental entity to me That's a factor in favor of finding it to be a public body You know if the public body Which would be subject to Open Meetings Act is delegating its responsibility to some other entity It seems that those open meeting act responsibilities start to flow I'd also would want to know you know who's on that public body If there were other government officials if they were citizens that doesn't preclude that possibility We certainly have findings where town councils have appointed a citizen committee for a search committee And we found those to be public bodies, but I think that's some of the relevant questions what the mission is Whether they're reporting if they're acting in an advisory capacity that doesn't really influence influence me one way or the other Because the Open Meeting Act expressly covers advisory bodies And advisory powers, but so I'll give you a little more of the facts that so the facts that would be that an individually citizen within the town was asked by the town council to form this committee and a group of citizens within the town participate on this in this committee and they do things and they meet Periodically at the person's home and they hold events that may I've changed the the actual Definition of what this committee is supposed to be doing so I made it energy efficiency So this this committee has met periodically and they have energy efficiency events and things like that A member of the town council Periodically will participate one member of the town council. So that's my concern is what does this ad hoc committee? fall within the definition of a public body I Think I'd go back to my same answer and I don't want to be definitive one way or the other on it because You know one I think you're changing the facts by your own you know to protect the innocent, right exactly That's my job So I really don't want to opine on on that for that reason and Like I said earlier, it's just such a fact specific inquiry that I think it really is a case where You know I've given the broad it the broad advice the broad guidelines, but as far as the specific answer I think that's something that either You know we should talk about individually or you should go through legal counsel or whatever whatever scenario is best And I think that that kind of brings me to you know a point that I just want to make also Obviously after today you're gonna have questions You know we've provided some guidelines But there's only so much we can do within an hour or two hour period of time When you if you're a member of a public body and you have questions Our procedure is to go through your legal counsel to have those questions answered if legal counsel has questions Then they can come through us and we can talk about it in that scenario But that's really the process that we've that we've had for many years and that we try to keep to so what other questions I Just may a person who was the subject matter of a discussion demand that the matter would go into closed session Where the body wants it in open session? Demand to go no No, it works one way If an affected person is being discussed in executive session They have the right under a one or under a eight to have that executive session discussion be held in open session If the public body is going to have that discussion held in open session They have no right to demand it to be held in executive even if it's a disciplinary matter. Yep Under the open meetings act. There's no right you know, maybe there's some other concern that Public body wants to take into consideration Elena Well, we also had that advisory board committee question. So that seems to be answered Okay God My question involves the difference between official unofficial on approved minutes and the requirement that a quasi-public cooperation File with the Secretary of State within 35 days There's no definition about what is official or approved and Some of us work for organizations that might skip a meeting and might not have The next meeting within 35 days to have the promise me during the break you weren't going to ask So that seemingly easy and straightforward question has no answer There was a point where we talked about disclosing minutes and Disclosing the official and or approved minutes and I said well, we all know what approved minutes is when we approve the minutes But Mike's right. There's no definition of official minutes There's a point in the law where it talks about official and or approved So there's at least that suggestion that official and approved might be different But the AG's office has never issued a finding on it We've never issued a finding the courts have never examined it and it's not defined in the legislature. So or in the legislation. So I Don't know the answer. What's that? You're on your own. Good luck I'm a member of a small organization small local government organization of fire district and Requirement that we file minutes at our principal office creates a problem We don't have a building that's a principal office and we have continually used our website as our principal office Because that provides access to everybody is that appropriate? Well, I mean the law says that you have to provide it at the office of the public body So I mean putting it on the website I would say no that doesn't comply with it But the way I look at it also is if you don't have a public body if you don't have an office Then it's really an impossibility to comply with it in your situation You know, I would look broadly to see if there's some You know, I would look at it broadly generally To to see whether or not there's some office that maintains the minutes Where that could be considered the principal office of the public body if there is I Would have the minutes there, but if there is no such building then obviously you can't comply with something That's impossible. Thank you If a school committee receives an app or request Response to it with all responsive documents and then continues to receive the same app or request from the same entity Over and over and over again Do we need to keep responding every single time? And is there any other recourse or a course of action to take? If you receive a proper app or request you must respond within one of the three ways that was discussed Deny grant or extend the time period to respond Keep in mind you if you get multiple requests within 30 days from the same requester, you know You can call that into one request but recourse The app or it doesn't really speak to that Okay My question with that or my thought would be if it's the same exact request you're you've already compiled the documents So I mean your response should be pretty pretty quick Okay, I have a couple questions Related to minutes first is it a requirement that they all be posted on the secretary of state website? If you're posting them on your own website and you keep a copy in your building Okay, so there's and this is why I kind of said that it started to get complex and why we did this checklist There's no requirement to put minutes on your own website putting them on the website that may be great I'm not telling public bodies not to do that But that doesn't comply with the open meetings act the open meeting act either requires the minutes to be Available at your public body or to be posted on the secretary of state's website So those are the two requirements that have to be met depending on which public body you are But they don't have to be on the secretary of state if you keep a public a copy in your public building Well, it depends what public body you are and it depends whether these are the unofficial minutes And this is why again, I said it starts to get complex. Yeah, I mean if you're the school committee Okay, well if it's a school committee, then there's no required There's a requirement to have unofficial minutes at the office of the public body There's no requirement in the law right now that may change But there's no requirement to post the minutes on the secretary of state's website official minutes or approved minutes And again, that doesn't mean you can't put them on the secretary on your own website But the only Mandate that you have as a school committee is to have unofficial minutes available at the office of the public body Okay, and we have a subcommittee that meets once a year Their minutes are unofficial. They become approved after so long Once they meet the next year should they take a legal vote to approve those minutes that are a year old Well, there's nothing in the Open Meetings Act that requires minutes to be approved for any public body I think that's an important point public bodies will approve their minutes And I guess for the the public bodies that have to post their official or approved minutes Maybe there is a requirement in that sense To approve minutes But for a school committee at least there's no requirement to do so the only thing that approving minutes does is it starts to Starts to move or starts to trigger the statute of limitations So there's a statute of limitations to file open meeting complaints and approving the minutes is usually what that trigger is Go ahead My question has to do with the APA request and I have several lengthy ones on my desk now But my concern is when they are requesting emails Correspondence of emails now with the council's being elected I think some of that the attorney handles and it's unless of course it's been presented at a public meeting but what is the obligation of Appointed boards and commissions and things like that to be producing emails to satisfy these APA requests that are just getting beyond control well if a public record request has been made the obligation is to Evaluate and Do a search for all of those documents that are responsive and it goes back to the lead pink example that I had I mean our Obligation was to you know determine all those documents that may have been responsive. It was a million and a half documents So depending on the situation if you get a request to let's just say at the town council Depending on what that request is there may be an obligation to ask for emails There may be an obligation If those documents are maintained at the first office just to go there So it really depends on what the nature is, but your obligation is to provide a reasonable search of the documents that are requested Now there may be a situation where such as town council if somebody's requesting the emails from from and among all town council members well If you want to exempt those those are exempt under exemption M corresponds to or from elected official That's the decision that the council has to make Again, it goes back to that yellow light. It doesn't mean that they have to be exempted. It just means that they can be exempted So that's something also to consider For a quorum for a board or commission Is that is it a simple majority of the members that are listed on the Secretary of State's website? Or is it a simple majority of all of the open seats which would include some vacancies? No So the definition as you as you recognized of a quorum is a simple majority of the membership of the public body and the way I look at that is the members that are that are that are actually presently sitting or pointed not necessarily the ones that are at that specific meeting but if you've got a Board that has nine seats and there are two vacancies and there's seven members there Then you're the simple majority of those seven members this deals with executive session minutes if a Town council or city council seals the minutes. There's an election and a new body comes in Can that new body? For whatever reason vote to unseal the minutes of that executive session Because there's a pending consent order and they want to know what the rationale was For entering into that consent order and for purposes of implementing that consent order Well, I see that that question in two ways and I'm not sure either of them falls under the Open Meetings Act When you said that they wanted to unseal the minutes for the purposes of them the council seeing what happened You know to me that's a limited unsealing It's suggesting to me that they're unsealing it for their own purposes But not for public purposes and that's doesn't fall under the Open Meetings Act The same way I said that I'm not sure it's an open meeting question either way Even if it's unsealing or whether they should unseal minutes for the general public to view again There's nothing in the Open Meeting Act that requires the minutes to be unsealed. So that's something that I assume You know regularly does happen and certainly Regularly may not be the right word, but certainly does happen. There's certainly provisions for that But it's not under the Open Meetings Act Well, do we have any more questions or? Item V in the APRA exemptions tell a text devices. Does this include cart records? Most probably yes is the answer to that one That was one of the 27 exemptions under the Access to Public Records Act and we got a question all the way up there I don't know if there are any questions near near PAM or I think there may have been Some repeats so let me get to one of the other questions that that was from one of the other rooms it goes back to the the yellow light example that we have and The question is does pass practice set precedent and I guess what I understand that to mean is If a document were to be exempt let's say An email from or to an elected official if that document's exempt But you give it out anyway does that set a precedent for future occasions? And the answer Generally, I think is no there's actually a case. We've had it for other Slides in previous years the Fuca case from Judge Andelia when he was on the Superior Court He actually examines this precise issue in that Fuca case DEM or there was a request for the addresses and names of commercial fishermen and DEM had released that exact information in prior years and Was now exempting it and Judge Andelia recognized that but said there was nothing in the public record law that recognized a waiver type situation So I think the answer that is probably that there is no legally binding precedent that set There may be certainly some internal precedent that set The one other thing that I think you kind of have to at least factor into this a little bit is Depending on the nature of the document if it was a document that's been released. That's just say concerning Malena And it was exempt well Is the disclosure of that same document later on Does that still constitute an unwarranted invasion of her personal privacy in other words if that information is already out There there's certainly some case law from the US Supreme Court that says that continuing disclosures of Exempt information that's personal would be in a more into invasion of personal privacy But there's also some case law out there that that suggests that once the information is out there There's less of a privacy interest. So I think that that's just one other consideration and the notice of Meeting is required to be posted in three places Secretary of State on a public signpost at the principal office and the notice is required to state the date of posting It's conceivable that the posting in those three places may occur on different days and still meet the 48 hour requirement Must be listed in the on the notice as date of posting can it be any of those dates I Would think it's the date that's posted. I mean if it's if you're posting in different locations The dates that's posted is actually different than I would indicate which date is different They all have to be posted within that 48 hour period though So you have a different They might be different date on every notice. They might be different dates, but they all have to be within 48 hours Thank you. I think that brings us to about 12 o'clock. I want to on behalf of myself and Lisa and Melana and Certainly the AG. Thank you everybody for coming and see you again next year. Thank you