Downey v. Carcieri

• Decision Date: 16 June 2010
• Docket Number: No. 2009-79-Appeal.,2009-79-Appeal.
• Citation: 996 A.2d 1144
• Parties: Michael DOWNEY et al.v.Governor Donald L. CARCIERI et al.
• Court: Rhode Island Supreme Court

996 A.2d 1144

Michael DOWNEY et al.v.Governor Donald L. CARCIERI et al.

No. 2009-79-Appeal.

Supreme Court of Rhode Island.

June 16, 2010.

Carly Beauvais Iafrate, Esq., for Plaintiff.

Daniel W. Majcher, Esq., for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The defendants, Governor Donald L. Carcieri and the directors of twelve state agencies, appeal from a judgment entered pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure in favor of the plaintiffs, Michael Downey and Rhode Island Council 94, A.F.S.C.M.E., AFL-CIO. The plaintiffs brought this action pursuant to the Access to Public Records Act, G.L.1956 chapter 2 of title 38 (APRA) and the Government Oversight and Fiscal Accountability Review Act, G.L.1956 chapter 2.3 of title 37, as enacted by P.L.2006, chs. 172, 646 (GOFARA), under which the plaintiffs sought records relating to state-agency-privatization contracts. The defendants contend that the Superior Court justice erred in ruling that the plaintiffs were not required to exhaust administrative remedies prior to instituting this suit. The defendants also assert that the Superior Court justice erred in deciding that, under the GOFARA, the state was required to determine whether services now performed by private contractors were formerly performed by agency personnel at any time in the past. Finally, the defendants contend that the Superior Court justice erred in awarding attorneys' fees to the plaintiffs.

We heard argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After examining the written and oral submissions of the parties, we are of the opinion that further briefing or argument is unnecessary. For the reasons set forth below, we affirm the judgment of the Superior Court.

IFacts and Procedural History

In June 2006, the General Assembly enacted the Government Oversight and Fiscal Accountability Review Act, overriding a prior gubernatorial veto. In adopting the GOFARA, the General Assembly found and declared:

“that using private contractors to provide public services normally provided by public employees does not always promote the public interest. To ensure that citizens of this state receive high quality public services at low costs, with due regard for the taxpayers of this state, and the service recipients, the legislature finds it necessary to ensure that access to public information guaranteed by the access to public records act is not in any way hindered by the fact that public services are provided by private contractors.” Section 37-2.3-2.

Section 37-2.3-4(3) of the GOFARA provides that state agencies must include an addendum to their budget requests listing all privatization contracts. The addendum also must “contain a summary of contracted private contractor employees for each contract, reflected as full-time equivalent positions, their hourly wage rate, and the number of private contractor employees and consultants for the current and previous fiscal year.” Id. The section finally provides: “The addendums [ sic] shall be open records.” Id.

In February 2007, former Executive Director of Rhode Island Council 94 Dennis R. Grilli sent a letter to the Governor requesting “[e]ach State Agency addendum to their submitted budget requests listing all privatization contracts with the required information.” On March 6, 2007, the Governor's executive counsel responded that the Office of the Governor did not maintain in its possession the public records requested and referred Mr. Grilli to the State Budget Office within the Rhode Island Department of Administration (DOA), or alternatively to the individual state agencies.

The next day, Mr. Grilli sent a letter to then-DOA Director Beverley E. Najarian requesting the same records. On March 26, 2007, a DOA attorney responded that “the [DOA] does not have any of the documents set forth in your request.” In their brief to this Court, defendants assert that the DOA did not possess the budget addenda requested by plaintiffs because “the GOFARA statute passed June 23, 2006 and the budget submissions were due in September 2006. As the agency [interpreted the GOFARA as operating only] on a prospective basis * * * there were no such privatization contracts during this limited time period.”

On May 17, 2007, plaintiffs filed the instant action in the Superior Court naming the Governor and the directors of twelve state agencies as defendants. The complaint requested (1) a writ of mandamus directing defendants to create, maintain, and provide the privatization addenda; (2) mandatory injunctive relief with regard to the creation and production of the privatization records; and (3) a declaratory judgment to the effect that defendants were obligated to compile and/or produce the records requested pursuant to the GOFARA. The plaintiffs further sought any other relief the Superior Court deemed appropriate, including attorneys' fees and costs.

In response, defendants maintained that plaintiffs' lawsuit was premature because plaintiffs had failed to exhaust their administrative remedies under the APRA. Moreover, they argued that plaintiffs lacked standing to bring suit because they failed to allege any harm. Finally, defendants challenged plaintiffs' proposed interpretation of the GOFARA as unreasonable and overbroad.

The Superior Court justice based her decision upon the memoranda filed by the parties; there were no oral arguments or evidentiary hearings in the matter. She issued a written decision in the case on November 5, 2008. In that decision, she concluded that state agencies were required to provide information about privatization contracts valued at $100,000 or more so long as the contracts concerned services that previously were provided by public employees. She specifically noted that the statute “does not place any time restrictions upon how far back in the past one should look to determine whether the services once were provided by agency employees.”

On the issue of exhaustion of administrative remedies, the Superior Court justice interpreted § 38-2-8 of the APRA as permitting a party to pursue administrative remedies but not requiring that they be pursued. She emphasized that the section provides that a person “may” petition the chief administrative officer to review a denial of access to records and then “may” file a complaint with the Attorney General if the chief administrative officer determines that the record is not subject to disclosure. The statute also specifically states that “[n]othing within [the] section shall prohibit any individual from retaining private counsel for the purpose of instituting proceedings for injunctive or declaratory relief in the [S]uperior [C]ourt * * *.” Section 38-2-8(b). The Superior Court justice therefore deemed such legal proceedings to be an alternate remedy. In addition, she ruled that it would have been futile to require plaintiffs to exhaust administrative remedies because both the Governor's office and the DOA denied that they possessed the documents sought by plaintiffs, and futility is a recognized exception to the doctrine of exhaustion of administrative remedies.

On the issue of standing under the APRA, the Superior Court justice concluded that plaintiffs had standing to bring the instant action. Section 38-2-3(a) provides that “every person or entity shall have the right to inspect and/or copy [public] records * * *.” Because the denial of access to a public record could itself constitute harm, the Superior Court justice found that plaintiffs had standing under the APRA.

The Superior Court justice next concluded that § 37-2.3-3(5) of the GOFARA was unambiguous and that its plain and ordinary meaning therefore must be given effect. She noted that under § 37-2.3-3(5) (2006 enactment) a privatization contract is defined as “an agreement” between “a non-governmental person or entity” and an agency “to provide services, valued at one hundred thousand dollars ($100,000) or more, which are substantially similar to and in lieu of, services heretofore provided, in whole or in part, by regular employees of an agency.” Upon consideration of various dictionary definitions, the Superior Court justice concluded that the term “heretofore,” as used in the statute, generally means “in the past, or formerly.” She therefore ruled that the GOFARA reporting and disclosure requirements encompassed privatization contracts concerning services that were provided by agency employees at any time in the past. The Superior Court justice further ruled that, by its plain language, the GOFARA applied retroactively to the year before it was enacted.

The Superior Court justice granted plaintiffs declaratory relief and ruled in their favor on the APRA claim. She ordered defendants to compile and the Governor's office and/or the DOA to release privatization contract addenda for each budget request submitted since June 23, 2006. In light of this declaratory relief, she stated that plaintiffs had an adequate remedy at law and declined to grant their requests for injunctive relief and a writ of mandamus. Although the Superior Court justice recognized that there was no evidence that defendants had willfully or knowingly violated the requirements of the APRA, she nevertheless awarded attorneys' fees to plaintiffs.

On November 25, 2008, a hearing was held before the Superior Court justice to clarify any ambiguities in her decision. The Superior Court justice ruled that defendants must respond to requests made by plaintiffs with regard to the privatization records and must release those addenda within sixty days. ¹ A final judgment in the matter was entered on January 2, 2009.

Thereafter, on January 6, 2009,² the Superior Court justice issued an order in accordance with her decision, stating, in pertinent part, that (1) plaintiffs were not required to exhaust...