Phoenix-Times Publishing Co. v. Barrington School Committee
Decision Date | 15 November 2010 |
Docket Number | C.A. PC-2009-4665 |
Parties | PHOENIX-TIMES PUBLISHING COMPANY D/B/A EAST BAY NEWSPAPERS; JOSH BICKFORD; RHODE ISLAND AFFILIATE, AMERICAN CIVIL LIBERTIES UNION, INC. AND STEVEN BROWN v. BARRINGTON SCHOOL COMMITTEE; JAMES HASENFUS, in his official capacity as a member of the Barrington School Committee; ROBERT E. SHEA, JR., in his official capacity as a member of the Barrington School Committee; PATRICK GUIDA, in his official capacity as a member of the Barrington School Committee, THOMAS R. FLANAGAN; in his official capacity as a member of the Barrington School Committee, and AMY PAGE OBERG; in her official capacity as a member of the Barrington School Committee |
Court | Rhode Island Superior Court |
DECISION
Before this Court are the cross-motions for summary judgment of Defendant Barrington School Committee (the "Committee")1[] and Plaintiffs Phoenix-Times Publishing Company d/b/a East Bay Newspapers Josh Bickford ("Mr. Bickford"), Rhode Island Affiliate, American Civil Liberties Union, Inc. ("RIACLU") and Steven Brown ("Mr. Brown") (collectively "Plaintiffs"). This action arises from Plaintiffs' classification of certain Committee actions as non-compliant with the requirements of Rhode Island's Open Meetings Act, G.L. 1956 §§ 42-46-1 et seq. (the "OMA"). For the reasons set forth below, this Court grants the Committee's motion for summary judgment as to Count I of the Amended Complaint and denies Plaintiffs' cross-motion as to the same. Plaintiffs' motion for summary judgment as to Counts II and III is granted on the issue of statutory compliance only. Accordingly, the Committee's motion is denied as to the same. Jurisdiction is pursuant to G.L. 1956 § 42-46-8.
In 2008, public concern emerged regarding the growing problem of underage drinking in the Town of Barrington, Rhode Island. In response, the Chief of the Barrington Police Department publicly advocated the institution of mandatory Breathalyzer testing for all students attending school dances and events.2[] (Joint Statement of Facts (hereinafter, "Joint Statement") ¶ 5.) The Chief's proposal was embodied in a newspaper article published in The Providence Journal on December 26 2008. Id. at Ex. A: Article dated 12/28/08. On that same date, Mr. Brown, in his capacity as the Executive Director of the RIACLU, sent a letter to the Principal of the Barrington High School concerning the proposed Breathalyzer policy discussed in the newspaper article (the "Letter"). Mr.Brown also sent a copy of the Letter to the Committee, and subsequently composed a Press Release regarding the same topic. (Brown Aff. ¶¶ 3-4; see also Brown Aff. Ex. 1: RIACLU Press Release dated 1/9/09.) The RIACLU's opposition to the proposed policy received further coverage in The Providence Journal in an article dated January 10, 2009, and additional attention from the local press by means of an article published in the The Barrington Times on January 14, 2009, authored by Plaintiff Josh Bickford.3[] (Joint Statement Ex. C Article dated 1/10/09 and Ex. D: Article dated 1/14/09.) The Parties agree that members of the public expressed opinions publicly both in favor of and in opposition to mandatory Breathalyzer testing throughout the months of December 2008 and January 2009. (Joint Statement ¶ 10.)
It is not disputed that the Committee was aware of opinions circulating publicly regarding the proposed policy. During the Committee's January 29, 2009 meeting, Committee Member Oberg specifically suggested that the Committee include "Public Comment Regarding Breathalyzer Testing at the High School" as a future agenda topic to "aid the Committee in a broader based decision regarding [the] issue." (Joint Statement Ex. F: Meeting Minutes for 1/29/09.) Consequently, the Committee set down a public comment period on the Committee's meeting agenda for the February 26, 2009 meeting (the "February Agenda"). (Joint Statement Ex. G: February Agenda.) Specifically, the February Agenda read "Public Comment Re: Breathalyzer Testing" and additionally indicated a planned "Executive Session pursuant to Section 42-46-5(a)(1) and 42-46-5(a)(2) for Personnel and Collective Bargaining and Litigation" (the "Executive Session"). The February Agenda provided no further description concerning the subject matter of the Executive Session.
At the conclusion of the meeting, the Committee unanimously voted to adjourn the regular meeting and to go into Executive Session pursuant to §§ 42-46-5(a)(1) and 42-46-5(a)(2), specifically for "Personnel and Litigation." Id. at p. 5. At the time of adjournment, the Committee did not specify the litigation to be discussed in Executive Session. (Joint Statement ¶ 18.) The Committee subsequently voted to seal the Executive Session Minutes. (February Minutes at p. 5.)
Apart from personnel matters irrelevant to the instant dispute, the Committee maintains that it utilized the Executive Session to discuss an "assessment of the ACLU's threatened legal claims" provided in a draft memorandum prepared by the Committee's attorney, Dan Kinder ("Attorney Kinder"), at the request of the Committee. (Def's. Suppl. Statement of Facts ¶ 3.) The Committee avers that upon receiving a copy of the Letter in December 2008, Superintendent Robert McIntyre discussed the Letter with Defendant Hasenfus, Chairman of the Committee, and that both believed the Letter to constitute a "threat of litigation." (Affidavit of Robert O. McIntyre ("McIntyre Aff.") at ¶ 5.) Based upon this interpretation of the Letter, the Committee consequently sought legal advice from its counsel, and such legal advice was set forth in the draft memorandum considered during the Executive Session. (McIntyre Aff. ¶¶ 5-6.) No votes were taken during the Executive Session. Id. at ¶ 9.
Following the February Meeting, Mr. Bickford sent correspondence to the Committee requesting "a copy of a letter sent to the school committee by its attorney, Dan Kinder, on the topic of a proposed breathalyzer policy considered for Barrington School events, " as well as any additional correspondence between the Committee and its attorney regarding the topic. (Joint Statement Ex. J: Bickford Letter dated 2/27/09.) Mr. Bickford also sought a copy of the sealed Executive Session Minutes pursuant to the Rhode Island Access to Public Records Act ("APRA"). See id. Mr. Bickford questioned "whether the [Committee] properly convened in executive session under the Rhode Island Open Meetings Act" and indicated his intention to seek the opinion of the Rhode Island Attorney General's Open Government Unit. Id. Specifically, Mr. Bickford was not convinced that the school department was faced with litigation or possible litigation concerning the Breathalyzer proposal allowing such a discussion on the topic to occur outside the reach of the public's ear. Id.
The Committee ultimately denied Mr. Bickford's request, maintaining that Attorney Kinder's memorandum, as well as any other correspondence between the Committee and its counsel, was privileged and otherwise exempt from public disclosure pursuant to G.L. 1956 §§ 38-2-2(4)(i)(E) and (S).4[] (Joint Statement Ex. K: McIntyre Letter dated March 5, 2009.) The Committee additionally declined to produce the Executive Session Minutes, contending that the session was lawfully closed in accordance with § 42-46-5(a)(2), rendering the Minutes exempt from public disclosure pursuant to § 38-2-2(4)(i)(J). Id.
Subsequent to the Committee's denial, Mr. Bickford filed a complaint with the Rhode Island Attorney General ("Attorney General" or "AG")) pursuant to G.L. 1956 §§ 38-2-8(b)5[] and 42-46-8(a)6[] challenging the Committee's decision to convene the Executive Session and seal the resulting Minutes. (Joint Statement Ex. L: Complaint to Attorney General dated March 6, 2009.) Specifically, Mr. Bickford questioned whether the OMA's litigation exception encompassed "implicit" or "threatened" litigation, and doubted whether the Letter itself posed a threat of litigation. See id. After investigation, the Attorney General issued its Decision, designated OM 09-10/PR 09-13, on May 18, 2009 denying Mr. Bickford's request for relief. In reaching its decision, the Attorney General considered applicable documents, including a "substantive response" from Attorney Kinder, an affidavit from Superintendent McIntyre, a privilege log, and both the Open and Executive Session Minutes provided to the Attorney General for review. (Joint Statement Ex. M: AG Opinion OM09-10 at p. 2.)
In its decision, the Attorney General first opined that the language of § 42-46-5(a)(2) does not limit an executive session to discussion where litigation has been initiated, but instead is interpreted to include discussion of "reasonably anticipated, " "imminent" and "threatened" litigation. Id. at p. 4. Indeed, such an interpretation has been proffered by the Attorney General in prior advisory opinions.7[] Id. at p. 4. The Attorney General also noted...
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