Dare v. Gannon

Citation819 A.2d 651
Decision Date10 April 2003
Docket Number No. 99-221-Appeal., No. 99-22-Appeal
PartiesDIRECT ACTION FOR RIGHTS AND EQUALITY v. Bernard E. GANNON, in his capacity as Chief of Police of the City of Providence.
CourtUnited States State Supreme Court of Rhode Island


Dennis T. Grieco, II/Michael G. Sarli, Providence, for plaintiff.

Richard G. Riendeau/Edward C. Roy, Jr., Providence, for defendant.


WILLIAMS, Chief Justice.

In this case, the plaintiff, Direct Action for Rights and Equality (DARE or plaintiff), an incorporated, non-profit community action group based in Providence, Rhode Island, brought an action pursuant to the Access to Public Records Act, G.L.1956 chapter 2 of title 38 (APRA), to compel the defendant, Bernard E. Gannon,1 in his official capacity as Chief of Police of the City of Providence (city or defendant), to produce various documents relating to civilian complaints of police misconduct.2 Both the plaintiff and the defendant appealed the order of the trial justice in this matter, and those appeals were consolidated for a single disposition by this Court. We also note that this is the second appeal heard by this Court concerning the current action. See Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 225 (R.I.1998)

(DARE I) (holding that the city must provide to DARE certain requested documents with only directly identifying factors redacted, such as the names of the complainants and officers against whom the complaints were made). The facts pertinent to the immediate appeal are as follows.

I Facts and Travel

In a letter dated September 17, 1993, plaintiff requested several documents from the city pursuant to the APRA. Specifically, plaintiff requested the following information:

"a.) Every `Providence Police Civilian Complaint report' (Form 210) filed within the Providence Police Dept. from 1986 to present.

b.) A listing of all findings from investigations that was [sic] conducted by the Bureau of Internal Affairs, in reference to all `Providence Police Civilian Complaint reports' (Form 210) on record from 1986 to present.

c.) All reports made by the `Providence Police Department Hearing officers' on their decisions from the findings of investigations conducted in Re: `Providence Police Civilian Complaints' (Form 210) from 1986 to present.

d.) Reports on all disciplinary action that's [sic] been taken as a result of recommendations made by the Hearing Officers Division since 1986 to present."

On November 28, 1994, Providence City Solicitor Charles Mansolillo (Mansolillo), responded to plaintiff by stating that records only existed from 1988 to present and, further, he refused to produce the records sought in categories (a), (b) and (d), but agreed to provide the information in category (c) in redacted form. In response to Mansolillo's denial, plaintiff initiated the present action on May 5, 1995. In its complaint, DARE sought the production of all four categories of documents, $1,000 in damages pursuant to§ 38-2-9, plus costs, statutory interest, attorneys' fees and any other relief that the court deemed proper. Both parties filed cross-motions for summary judgment. In June 1996, the trial justice granted plaintiff's motion in part and denied defendant's motion. Specifically, he ordered defendant to produce all the requested records in unredacted form.

The defendant appealed the trial justice's order to this Court. On appeal, we determined that DARE was entitled to get access to the public records in categories (a), (c) and (d), redacting only the names of the complaining citizens and the police officers who were the subjects of the complaints. See DARE I, 713 A.2d at 225. DARE was not entitled to the requested records in category (b). See id. Furthermore, we remanded the matter back "to the Superior Court for further proceedings consistent with [our] opinion." Id.

In a hearing on remand conducted in Superior Court on December 17, 1998, DARE requested that fees for reproducing the documents be waived and that the city be fined and ordered to pay attorneys' fees. The trial justice reserved his decision on those issues for a later date, but ordered defendant to "produce all records that are the subject of this litigation (1986 to and including the present) to the plaintiff on or before January 8, 1999." The defendant then filed a motion requesting that the trial justice reconsider his order and provide the city with more time to comply because "some 700 closed case files exist" and it would need additional time to retrieve and redact the relevant information. Additionally, defendant appealed the trial justice's order to this Court, stating that:

"The City's objection was primarily predicated upon the [o]rder requiring the City to provide copies of records that the Supreme Court had opined in the instant matter were unavailable to D.A.R.E. The [o]rder as entered clearlymandates that the City must provide all records to the [p]laintiff that are the subject of the litigation. The [o]rder does not state that these records be provided in redacted form. All records means all records."

This argument was advanced despite a letter from plaintiff's counsel reaffirming DARE's request for defendant to produce only "those things that the Supreme Court has previously said DARE is entitled to."

At an emergency conference requested by the city on its motion for stay, this Court stated that the trial justice's order required defendant to produce only the documents that this Court required in DARE I. Consequently, on January 21, 1999, this Court issued an order denying defendant's motion to stay the trial justice's order.

On February 11, 1999, the parties were once again before the trial justice. Besides redacting the names of the complaining witnesses and officers against whom the complaints were made, defendant redacted the names of witnesses, locations, police officers on the scene and in some cases, the race of the parties involved in the incidents. Furthermore, plaintiff expressed concerns that it was not receiving all the records to which it was entitled.3 Consequently, besides requesting attorneys' fees and costs, plaintiff moved that defendant be held in civil contempt.

On May 12, 1999, the trial justice issued a bench decision in which he held that the city had no authority to redact location, even if the complaining witness lived there, nor did defendant have license to redact the names of non-complainant witnesses, whether they were police officers or civilians.4 The trial justice determined, however,that the city did not intentionally attempt to interfere with the workings of the court, and thus denied plaintiff's motion to hold defendant in civil contempt and refused to order a fine. Additionally, the trial justice relied on the 1998 amendment to the APRA, which allowed him to waive the fees to be charged to plaintiff for the cost of retrieval and redaction of the requested documents because the "information requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." Section 38-2-4(e), as amended by P.L.1998, ch. 378, § 1. Furthermore, the trial justice ordered that defendant pay to plaintiff all attorneys' fees incurred after July 20, 1998, the date the general assembly amended § 38-2-9(d) (P.L. 1998, ch. 378, § 1). In an order dated May 13, 1999, the trial justice ordered defendant (1) to "produce all records that are the subject of this litigation[, redacting] only the names of complainants and the officers against whom complaints have been made * * *," (2) to bear the costs for production, retrieval and redaction of relevant documents, and (3) to pay plaintiff reasonable attorneys' fees and costs incurred by plaintiff from July 20, 1998, through the present. The defendant immediately filed a notice of appeal in this Court, as well as a stay of the trial justice's order, which we denied.

On May 17, 1999, the trial justice heard arguments from the city on why it should be allowed to redact the Social Security numbers of the complainants and the badge numbers of the police officers against whom the complaints were made. Thereafter, he issued an order allowing defendant to redact the Social Security and badge numbers. The plaintiff timely filed notice of a cross-appeal of the trial justice's decisions. This Court granted defendant's motion to consolidate those appeals on March 29, 2000.

On appeal, plaintiff argues that (1) the trial justice erred in failing to hold defendant in civil contempt and should have imposed a $1,000 fine pursuant to § 38-2-9(d); (2) the trial justice should have ordered defendant to pay plaintiff's attorneys' fees from the commencement of this action; and (3) the trial justice erred in permitting defendant to redact the Social Security numbers of complainants and badge numbers of police officers against whom complaints were made. The defendant argues (1) that the trial justice erred by applying the 1998 amendments to the APRA in the instant matter, and (2) that even if they did apply, they did not authorize the trial justice to waive the costs charged to plaintiff for production and redaction and he should not have awarded attorneys' fees because defendant did not commit a knowing and willful violation of the statute. We address these arguments below after providing general background on APRA.

II The Purpose of the APRA

"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."5 The Rhode Island General Assembly has effectively codified this philosophy by enacting the APRA and stating that the purpose of...

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