On April 18, 2016, Lori Franchina, a lieutenant in the Providence Fire Department, won an $806,000 jury award against the City of Providence and other defendants. Franchina claimed that her male coworkers in the Fire Department harassed and discriminated against her because of her sexual orientation and her sex, and that the City failed to stop the misconduct.
On April 20, I made a public records request to the City for court documents in the Franchina case, including all transcripts of sworn deposition testimony taken during the pre-trial discovery phase of the litigation.
On May 4, the City’s public records unit responded, “Deposition Transcripts – Documents have been withheld pursuant to R.I. Gen. Laws § 38-2-2(4)(B) because they are ‘trade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature’.”
On May 7, I filed a formal complaint with the Rhode Island Attorney General, alleging a violation of the Access to Public Records Act (APRA). Reproduced below are my initial complaint, the City’s response of June 10, and my reply of June 11. An updated log of all complaints to the Attorney General alleging violations of APRA has been posted here.
INITIAL COMPLAINT, MAY 7, 2016
From: Johanna Harris
Subject: Complaint against the City of Providence for Violation of the Access to Public Records Act (5/7/2016)
Date: May 7, 2016 at 1:24:00 PM EDT
To: Lisa Pinsonneault <opengovernment@riag.ri.gov>
Cc: “Kathryn M. Sabatini” <ksabatini@providenceri.com>
Dear Ms. Pinsonneault,
This constitutes a formal complaint against the City of Providence for failure to comply with the Access to Public Records Act in connection with its response to Public Records Request 16-213.
On April 20, 2016, I submitted the following public records request, which was logged by the City’s NextRequest system as 16-213:
“All deposition transcripts, court pleadings and other court documents in the case of Franchina v. City of Providence, U.S. District Court, District of Rhode Island, Case CA12-517M.”
In a subsequent message sent through the NextRequest system on the same day, I wrote: “To clarify Request #16-213, ‘other court documents’ include trial transcripts.”
On May 4, 2016, the Public Records Unit of the City of Providence responded in part:
“Deposition Transcripts – Documents have been withheld pursuant to R.I. Gen. Laws § 38-2-2(4)(B) because they are ‘trade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature’.”
There is absolutely no basis under R.I.G.L. § 38-2-2(4)(B) for withholding these transcripts in their entirety, as the City has done. To the extent that any portion of any transcript is excludable, the entire transcript should be produced with the appropriate portions redacted.
Under R.I.G.L. § 38-2-7(a), the City has waived all other reasons for denying me access to the requested deposition transcripts. Under R.I.G.L. § 38-2-10, the City has the burden of proving that the requested deposition transcripts in their entirely contain “trade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature.”
The City’s blanket withholding of all deposition transcripts is deliberate stonewalling that merits sanctions.
Johanna Harris
RESPONSE OF THE CITY OF PROVIDENCE, JUNE 10, 2016
CITY OF PROVIDENCE
Jorge O. Elorza, Mayor
VIA EMAIL AND HAND DELIVERY
lpinsonneault@riag.ri.gov
June 10, 2016
Lisa Pinsonneault
Special Assistant Attorney General
State of Rhode Island and Providence Plantations
Department of Attorney General
150 South Main Street
Providence, Rhode Island 02903
Re: Harris v. City of Providence
Dear Special Assistant Attorney General Pinsonneault:
This office is in receipt of your May 23, 2016 correspondence, in which you conveyed an Access to Public Records Act (“APRA” or the “Act”) complaint against the City of Providence (the “City”) by Ms. Johanna Harris (“Complainant”) dated May 7, 2016. Enclosed, please find my affidavit prepared in response.
The Act provides that, unless otherwise exempt, all records maintained by a public body shall be public records, and every person shall have the right to inspect and/or copy such records. See R.I. GEN. LAWS § 38-2-3(a). The documents requested by the Complainant are deposition transcripts. As set forth in the affidavit, the City maintains that any and all deposition transcripts purchased by the City from a third party court reporter are documents which constitute “trade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature.” See R.I. GEN. LAWS § 38-2-2(4)(B). Therefore, the City maintains that it properly withheld these documents as non-public documents pursuant to the Act.
Furthermore, in reliance upon case law, the City determined that it would be proper to withhold the documents pursuant to this exemption because “disclosure would be likely either ‘(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained’.” See In re: New England Gas Company, 842 A.2d 545, 555 (R.I. 2004) (citing Providence Journal Co. v. Convention Center Authority, 774 A.2d 40, 47 (R.I. 2001) (quoting National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974))).
When engaged by the City, court reporters charge the City for any and all deposition transcripts the City requests. Additionally, should any other individual or entity request a copy of said documents, the court reporter would charge the requesting party for said documents. If a court reporter received notification that the City was handing out, for free, documents for which the reporter charges, then it would most certainly impair the City’s ability to obtain said services and documents in the future. Likewise, if the City regularly handed out documents provided by the court reporter, again for which the reporter charges a fee, then it would without a doubt cause substantial harm to the competitive position of the reporter.
While the City maintains that reliance on exemption (8) was appropriate, the City takes this opportunity to more fully address other exemptions that could be applicable, to the extent that it aids the Attorney General’s analysis. [1]
As a threshold issue, deposition transcripts are neither “made [n]or received pursuant to law or ordinance or in connection with the transaction of official business by the agency.” R.l. GEN LAWS § 38-2-2(4). The City purchased the documents from a private third party as a result of the City’s defense of a private lawsuit; they were not made or received pursuant to law or ordinance or in the City’s transaction of official business and therefore are not public documents within the meaning of the Act. It follows that deposition transcripts are, in fact, court documents, created by a court reporter as an officer of the court, although in practice commonly held in the custody of the examining attorney, see SUP. CT. R. CIV. P. 30(f)(1), which the court could likely exempt pursuant to R.T. Gen. Laws § 38-2-2(4)(T).
Additionally, if, in the ordinary course of litigation, an opposing party requested the City’s copies of deposition transcripts, then the City would, well within its rights, oppose such a request because the documents are equally available to the opposing party. Furthermore, if the Complainant made a discovery request in her pending discrimination matter against the City of Providence for these types of records, then the City would similarly not be required to produce them. See SUP. CT. R. CIV. P. 30(f)(2) (“Upon payment of reasonable charges therefor, the [court reporter] shall furnish a copy of the deposition to any party or to the deponent.”). Thus, under R.T. GEN. LAWS § 38-2-2(4)(E), deposition transcripts would be exempt.
Accordingly, and as set forth more fully herein, the documents requested are not public documents within the meaning of the Act. See, R.I. Gen. Laws §§ 38-2-2(4), (4)(8), (4)(E), and (4)(T) .
It is the City’s contention that it responded to the request in accordance with the Act. To the extent that the Attorney General reaches a different conclusion and determines that there was a violation of the Act, the City respectfully submits that any such violation was not knowing, willful, or reckless. [2][3]
The City would be pleased to provide any additional information or answer any questions, We look forward to your decision.
Very truly yours,
Samuel A. Budway
Assistant City Solicitor
[1] As for the Complainant’s contention that the City has waived its right to other exemptions under the Act, the City maintains that said statutory reference is neither complete nor dispositive of the City’s actual rights and responsibilities remaining under the Act. The Act, mentioned by the Complainant though not cited, reads in part: “[e]xcept for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.” R.T. GEN. LAWS § 38-2-7(a). The City maintains good cause exists; the City respectfully requests the ability to further develop its argument on this issue pending the Attorney General’s decision regarding the remaining issues before it in this complaint. (Back)
[2] Furthermore, should the Attorney General conclude that these documents should not be exempt in their entirety pursuant to any of the enumerated exemptions set forth in R,T. Gen. Laws § 38-2-2(4)(A)-(AA), the City of Providence respectfully submits that these documents must be examined in light of the statute’s overall balancing test. These are transcripts of depositions conducted in a private, civil, discrimination lawsuit-they were not conducted in public and were not admitted as evidence in a public courtroom at trial. The transcripts are rife with testimony, the disclosure of which would constitute an unwarranted invasion of personal privacy. To the extent that Ms. Harris could identify any public interest in these documents, the City of Providence should be afforded the opportunity to review and redact these documents and should be afforded the opportunity to charge for its time to do so. (Back)
[3] The City respectfully submits that its response with respect to deposition transcripts in a private lawsuit, even if in error, cannot constitute a knowing, willful, or reckless violation of the APRA, in light of the request for an advisory opinion that is currently pending before the Attorney General’s office regarding whether or not transcripts of public hearings of public bodies are public pursuant to the Act. (Back)
IN RE: Harris v. City of Providence
AFFIDAVIT
I, SAMUEL A. BUDWAY, being first duly sworn, depose and state as follows:
- I am an Assistant City Solicitor for the City of Providence and am, inter alia, a member of the Public Records Unit (the “PRU”). As a member of the PRU, I am responsible for responding to certain requests for records made pursuant to the Access to Public Records Act (“APRA” or the “Act”).
- I have reviewed the APRA Complaint dated May 7, 2016 made by Ms. Johanna Harris (hereinafter the “Complainant”) against the City of Providence (the “City”). (See May 7, 2016 email from the Complainant to Open Government, attached hereto as Exhibit A.)
- On April 20, 2016, I received a request for records from the Complainant via the City’s Open Records Portal. (See Exhibit A.)
- In her request, the Complainant sought the following: “[a]ll deposition transcripts, court pleadings and other court documents in the case of Franchina v. City of Providence, U.S. District Court, District of Rhode Island, Case CA12-517M.” (See Exhibit A).
- I reviewed Complainant’s request and on or before May 4, 2016, I made a determination that, with respect to the portion of her request seeking deposition transcripts, the transcripts were exempt from public disclosure under the Act.
- In consultation with the PRU, I determined that, because the transcripts were purchased by the City from a third party court reporter, the documents constitute “trade secrets and commercial or financial information obtained from a person, firm, or corporation which is of a privileged or confidential nature.” See R.I. GEN. LAWS § 38-2-2(4)(8).
- On or about May 4, 2016, the PRU responded in accordance with my determinations as stated in paragraphs five (5) and six (6) above.
- On information and belief, Complainant never submitted a petition for administrative review with the Chief Administrative Officer, as provided for in R.I. Gen. Laws § 38-2-8.
- I remain of the view that it was proper to withhold these documents on the basis provided to Complainant.
- To the extent that this determination on the part of the Public Records Unit was erroneous, it was made in good faith and in an effort to comply with the law, and was in no way knowing, willful, or reckless.
- I certify that I have provided a copy of this affidavit, as well as all documents appended hereto, to the Complainant.
Samuel A. Budway
Assistant City Solicitor
Providence, Rhode Island
COMPLAINANT’S REPLY, JUNE 11, 2016
From: Johanna Harris
Subject: Complaint against the City of Providence for Violation of the Access to Public Records Act (5/7/2016)
Date: June 11, 2016 at 9:38:05 AM EDT
To: Lisa Pinsonneault <lpinsonneault@riag.ri.gov>
Cc: Lisa Pinsonneault <opengovernment@riag.ri.gov>, Samuel Budway <SBudway@providenceri.gov>, Johanna Harris
Reply-To: Johanna Harris
Dear Ms. Pinsonneault,
This responds to the correspondence and affidavit of Assistant City Solicitor Samuel A. Budway, dated June 10, 2016, in connection with my complaint to the Office of the Attorney General, dated May 7, 2016, that the City of Providence violated the Access to Public Records Act.
The City’s contentions are entirely speculative. They are not backed up by any evidence of even a single case in which the public disclosure of deposition transcripts has harmed a stenographer’s competitive position or impaired a governmental body’s access to stenographic services.
To buy into the City’s position is tantamount to allowing the City to withhold any document that it obtained from any third party simply by speculating that disclosure might harm the third party’s competitive position or impair the City’s ability to obtain future information.
The City Has Not Satisfied Its Burden of Proving That the Disputed Records Should Be Withheld.
Under R.I.G.L. § 38-2-10, the City has the burden of proving that the requested documents should be withheld. Yet the City has made no showing that any of the transcripts were protected by court order, or that any of the parties have designated any portion of the transcripts as confidential. The City has made no showing that the subject depositions were closed to public attendance. The City has made no showing that the deponent or any of the parties in Franchina v. City of Providence had any expectation that the transcribed testimony would remain confidential.
The City has made no showing that the subject deposition transcripts contained any label, warning or accompanying text to the effect that the document contained trade secrets or confidential information, or could not be distributed to third parties. There has been no showing that the provider of the information had an expectation that it would not subsequently be released to the public.
The City has made no showing that the stenographer made any other efforts to maintain the secrecy of the information within the transcripts, as would be required for a trade secret under the Rhode Island Uniform Trade Secrets Act (R.I.G.L. § 6-41-1(4)). In fact, it is questionable that the stenographer would have any legal right to maintain the secrecy of the transcript.
In footnote 2 on page 3 of its response letter, the City attempts to shift the burden to me to identify any public interest in the requested documents. Aside from the fact that I have no such burden, the City appears to be under the illusion that there is no conceivable public interest in the circumstances underlying a jury’s award of over $800,000 in damages against the City for discrimination against one of its own public employees.
The Cited Cases in Context
In Providence Journal v. Convention Center Authority, 774 A.2d 40, 47 (R.I. 2001), the Providence Journal sought documents regarding negotiations that led to the booking of an event at the Convention Center. The Rhode Island Supreme Court ruled that such information “is of the sort that would not customarily be disclosed to the public…” In the present matter, the City has made no showing that deposition transcripts constitute information that would not customarily be disclosed to the public.
In In Re New England Gas Company, 842 A.2d 545, 555 (R.I. 2004), by contrast, the Supreme Court affirmed an order of the Rhode Island Public Utilities Commission denying New England Gas’s request to keep certain subpoenaed financial information as confidential. The Court ruled that the public’s right to know outweighed New England Gas Company’s privacy interests. In the present matter, the public’s right to know likewise outweighs any speculative harm to competition or impairment of access asserted by the City.
“No Public Records Shall Be Withheld Based on the Purpose for Which the Records Are Sought.”
On page 2 of its response letter, the City refers to the Complainant’s “pending discrimination matter against the City of Providence.” I acknowledge that I have filed a sexual harassment complaint against certain City officials. The mere fact that the City has brought up my complaint is deeply troublesome, as it goes to the City’s motive for withholding these documents in the first place. R.I.G.L. § 38-2-3(j) provides that “[n]o public records shall be withheld based on the purpose for which the records are sought…”
The City Has Not Shown Good Cause.
R.I.G.L. § 38-2-7(a) states: “Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.” In footnote 1 on page 2 of its response letter, in a belated attempt to throw other reasons into the mix, the City asserts “good cause.” In this case, the “good cause” is nothing more than the fact that the City has now been confronted with a complaint that it knowingly and willfully withheld documents that it does not want the public to see.
Respectfully submitted,
Johanna Harris
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