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PR 18-29 Cushman v. City of Warwick No Violation

Complainant alleged that the City violated the APRA when it failed to provide a 2017 version of a particular document. Because the Complainant already had the 2017 document responsive to his request, we investigated whether the Complainant's allegations represented a knowing and willful, or reckless, violation of the APRA that would subject the City to civil penalties, assuming that a violation even occurred. See Farinelli v. City of Pawtucket, PR 16-27. The undisputed evidence indicated that the City did not have the 2017 document at the time of the APRA request. The failure of a public body to produce records that do not exist does not violate the APRA. See Murphy v. City of Providence, PR 15-07. Moreover, the City's subsequent creation and disclosure of the 2017 document went beyond the APRA's requirements and decidedly counseled against finding a willful and knowing, or reckless, violation. See Carmody v. Rhode Island Conflict of Interest Comm'n, 509 A.2d 453, 459 (R.I. 1986).

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