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PR 15-37 Access/Rhode Island v. Warren Police Department Violation found

Even though Access/Rhode Island did not have standing to file this complaint, we reviewed this complaint consistent with this Department's independent statutory authority as described in West Warwick School Department, PR 15-23. Access/Rhode Island alleged that the Police Department violated the APRA when it maintained APRA procedures, but when it failed to post these maintained APRA procedures on its website. Additionally, Access/Rhode Island alleged that the Police Department violated the APRA when it failed to timely respond to four (4) APRA requests made by MuckRock. The Police Department did not contest that it failed to post its promulgated/maintained APRA procedures on its website, and accordingly, this allegation violated the APRA. With respect to the allegations that the Police Department failed to timely respond to MuckRock's APRA requests, on two (2) of these occasions, the Police Department violated the APRA. In both situations, MuckRock sent by facsimile APRA requests to a machine that was not regularly monitored by the Police Department. In the other two (2) situations, we found no violations. In one situation, the Police Department required pre-payment from MuckRock for the cost of the APRA request. In such a situation, the time for a public body to respond to the APRA request is tolled, pending pre-payment. See R.I. Gen. Laws 38-2-7(b)("production of records shall not be deemed untimely if the public body is awaiting receipt of payment for costs properly charged under section 38-2-4"). Because the time from MuckRock's APRA request to the Police Department providing responsive documents totaled ten (10) business days, exclusive of the time awaiting payment, the Police Department's response was timely. Additionally, even though R.I. Gen. Laws 38-2-3.2 provides that certain delineated adult arrest log information be provided within "forty-eight (48) hours after receipt of a request unless a request is made on a weekend or holiday, in which event the information shall be made available within seventy-two (72) hours," the evidence established that MuckRock's APRA request expressly requested such information be provided by the Police Department within "10 business days," thus waiving the time frame set forth in R.I. Gen. Laws 38-2-3.2. See Gallucci v. Brindamour, 477 A.2d 617, 618 (R.I. 1984)("Generally, a party or parties for whose benefit a right is provided by constitution, by statute, or by principles of common law may waive such right, regardless of the plain and unambiguous terms by which such right is expressed."). Accordingly, the Police Department's response was also timely with respect to this request. Based upon the prior two (2) violations for failing to respond in a timely manner, this Department directed the Police Department to provide a supplemental response concerning whether such a violation should be considered willful and knowing, or reckless, which would subject the Police Department to a civil fine. Chief among our concerns is whether MuckRock complied with the Police Department's APRA procedure by using the appropriate facsimile machine, and if so, why this facsimile machine was not properly monitored to ensure that APRA requests were timely processed.

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