Hydron Laboratories, Inc. v. Department of Atty. Gen. for State

• Decision Date: 07 May 1985
• Docket Number: No. 82-504-A,82-504-A
• Citation: 492 A.2d 135
• Parties: HYDRON LABORATORIES, INC. v. The DEPARTMENT OF ATTORNEY GENERAL for the STATE of Rhode Island et al. ppeal.
• Court: Rhode Island Supreme Court

Page 135

492 A.2d 135

HYDRON LABORATORIES, INC. v. The DEPARTMENT OF ATTORNEY GENERAL for the STATE of Rhode Island et al.

No. 82-504-Appeal.

Supreme Court of Rhode Island.

May 7, 1985.

David Oliveira, Providence, for plaintiff.

Dennis J. Roberts II, Atty. Gen., Daniel J. Schatz, Asst. Atty. Gen., for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal brought by the plaintiff from a judgment entered in the Superior Court granting the defendants' motion for summary judgment. We affirm the judgment of the Superior Court. The facts in this case are as follows.

Originally, Hydron Laboratories, Inc., was charged by the state with contributing to the dumping of noxious materials on a dump site operated by the Picillo family. See Wood v. Picillo, --- R.I. ---, 443 A.2d 1244 (1982). On February 17, 1982, plaintiff, Hydron Laboratories, Inc. (Hydron), filed a request for documents with the Department of the Attorney General (DAG) pursuant to the Access to Public Records Act (APRA). G.L. 1956 (1984 Reenactment) chapter 2 of title 38. ¹ The information sought by Hydron included documents and other information held by both DAG and the Department of Environmental Management (DEM) ² relating to the Picillo waste-disposal site in Coventry, Rhode Island. The DAG responded to Hydron's request in letters dated March 3 and March 12, 1982, stating that it would comply with Hydron's request to the extent that the documents requested fell within the scope of discovery allowed by the Superior Court Rules of Civil Procedure. More specifically, documents would be produced in accordance with discovery procedures outlined in Rule 34, subject to the limitations imposed by Rule 26(b). The DAG then stated, in the March 3, 1982 letter, that it would not produce "documents obtained or produced by the staff of the Department of Attorney General as a result of inquiries or investigations * * * into the subject matter" of other pending civil litigation between the plaintiff and the defendant in Wood v. Picillo, supra. The DAG's justification for using Superior Court Rules of Civil Procedure 34 and 26(b) as the measure by which to determine the documents that would be produced was that these rules of court governed the other pending civil litigation between the plaintiff and the defendant, and should be read in conjunction with §§ 38-2-2(d) and -2(d)(5) of APRA, ³ thereby permitting DAG's noncompliance with portions of Hydron's request.

On March 26, 1982, Hydron filed a request for production of documents in Picillo, supra, pursuant to Rule 34 of the Superior Court Rules of Civil Procedure. Hydron subsequently filed a motion to compel production of the documents it had requested under Rule 34, and in opposition, DAG filed a motion for a protective order on April 19, 1982, claiming that the documents requested were "privileged" and therefore nondiscoverable. In an order issued April 30, 1982, the Superior Court held, regarding both the motion to compel and the motion for protective order, that W. Edward Wood, director of DEM,

"shall not be required to divulge the content of any written and oral communication between the Department of Environmental Management and the following companies * * *.

"Accordingly Hydron Laboratories' Motion to Compel Production of all documents, correspondence, financial records, inter-office memoranda and corporate records which refer to, or in any way concern oral conversation had between plaintiff and the above companies is denied."

Prior to the issuance of that order, Hydron pursued its APRA request in letters dated April 21 and 22, 1982, and addressed to DAG. In that correspondence, Hydron requested "a review of the determinations made by [DAG] in denying [Hydron's] request." In a response dated May 3, 1982, the chief legal counsel of DEM's Office of Legal Services upheld the DAG's refusal and stated that

"[s]ince the documents and other material which you request are the subject of discovery proceedings * * * involving litigation between [Hydron] and this Department, the documents and material that you request appear to be exempted from the access provisions of R.I.G.L. Chapter 38-2."

Hydron, on May 11, 1982, filed its complaint in this action seeking declaratory and injunctive relief, ordering that the information requested by Hydron under APRA be disclosed. In response, DAG filed an answer and counterclaim on June 3, 1982. In its counterclaim, DAG petitioned the Superior Court to enjoin Hydron from seeking disclosure of the requested information save through discovery procedures in the pending action, Picillo, supra. The DAG further pointed out that the Superior Court in that action had previously issued a protective order in respect to such information on April 30, 1982. Subsequently, DAG moved to adjudge Hydron in contempt for violation of this protective order. The DAG based its petition on the fact that the Superior Court's order denying Hydron's discovery of certain documents would place those documents within the parameters of exemption 5 of § 38-2-2(d) of APRA. Therefore, it alleged Hydron's further attempts at discovery of those documents violated the court order and constituted contempt of court.

On August 31, 1982, a Superior Court justice heard argument on DAG's motion for summary judgment against Hydron and held that the motion to adjudge Hydron in contempt was denied but that DAG's motion for summary judgment was granted. From the judgment rendered September 2, 1982, pursuant to the trial justice's decision, Hydron filed a timely appeal.

In 1979, the Rhode Island Legislature enacted the Access to Public Records Act, chapter 2 of title 38. Generally, APRA was intended to open up various state government documents to inspection by private citizens and news-gathering entities in order to enhance the free flow of information. More specifically, § 38-2-1 of APRA states that,

"[t]he purpose of this chapter is to facilitate public access to governmental records which pertain to the policy-making functions of public bodies and/or are relevant to the public health, safety, and welfare."

Although § 38-2-3 of APRA states that "all records maintained or kept on file by any public body * * * shall be public records and every person shall have the right to inspect and/or copy such records," certain definitional limitations were included in respect to which documents would constitute "public records" and would therefore be readily disclosed. The twenty-one categories of limitations are set forth in § 38-2-2(d) ⁴ of APRA and are intended to protect the privacy of individuals from unwarranted invasions, § 38-2-1, and to avoid the disclosure of confidential or potentially harmful information. At issue here is exemption 5, § 38-2-2(d)(5), which exempts from the definition of the term "public record" any records that "would not be available by law or rule of court to an opposing party in litigation." It is the scope of this particular exemption with which we are concerned in this case.

The issue in this case of interpreting the scope of exemption 5 of § 38-2-2(d) of APRA is one of first impression. Although statutes are generally to be construed by the courts in a way that furthers the intent of the Legislature, The Rake v. Gorodetsky, --- R.I. ---, ---, 452 A.2d 1144, 1147 (1982); Berthiaume v. School Committee of Woonsocket, 121 R.I. 243, 397 A.2d 889 (1979), little guidance has been given regarding exemption 5 apart from the statement of general purpose in § 38-2-1. With the general purpose in mind of permitting disclosure without sacrificing the values protected by statutory exemptions, we look to the plain words of exemption 5.

Exemption 5 prohibits the disclosure of public records that would be unavailable by law and "rule of court" to an opposing litigant. In respect to this particular case, Rules 34 and 26(b)(2) of the Superior Court Rules of Civil Procedure set forth basic guidelines for the production of documents in civil litigation. ⁵ Regarding the content of documents requested under Rule 34, Rule 26(b)(2) specifies categories of documents that are either absolutely privileged (for example, attorney's mental impressions, production of which cannot be compelled) or qualifiedly privileged. In this second category, Rule 26(b)(2) places a qualified privilege on documents by stating that

"[a] party shall not require a deponent to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial * * *."

Production of these writings that constitutes "work product" may be compelled only upon a showing of "injustice or undue hardship." Rule 26(b)(2). See Pennsylvania General Insurance Co. v. Becton, --- R.I. ---, ---, 475 A.2d 1032, 1036 (1984); Fireman's Fund Insurance Co. v. McAlpine, 120 R.I. 744, 747, 391 A.2d 84, 87 (1978); Town of North Kingstown v. Ashley, 118 R.I. 505, 510, 374 A.2d 1033, 1036 (1977).

In the case at bar, Hydron filed two document requests with DAG requesting information regarding the involvement of several companies in the dumping of drums containing chemicals at the Picillo waste-disposal site. The first of these requests was made on February 17, 1982, pursuant to APRA. In its response to this request, DAG stated that the documents requested related to litigation between the State of Rhode Island and Hydron in the Picillo case and that under exemption 5 of § 38-2-2(d) of APRA, DAG would not produce those "documents obtained or produced by the staff of the Department of Attorney General as a result of inquiries or investigations * * * into the subject matter of th[e] litigation." The second document request was filed by Hydron on March 26, 1982, pursuant to Rule 34. In response to that request, DAG filed a motion for protective order with the Superior Court asserting that the documents requested by Hydron under Rule 34...