Ahlquist v. Woonsocket Police Department

"For the reasons set forth herein, we find that the [Woonsocket Police] Department violated the Access to Public Records Act (APRA)."

Governor Daniel McKee, in a brief second of unredacted video footage

In 2023, I learned that Rhode Island Governor Daniel McKee, (now former) Woonsocket Mayor Lisa Baldelli-Hunt, and a tour group of approximately 25 people appeared unannounced at three encampments of unhoused people in the City of Woonsocket. During the unannounced visits, Woonsocket Police arrested two people experiencing homelessness on drug and weapons charges.

In subsequent stories, I learned that the Woonsocket Police Department knew about the guns and drugs before accompanying the Governor of Rhode Island into a potentially hazardous situation. The police report states that “The prior week, Detectives had obtained information that [the suspect] was in possession of two firearms, one being a semi-automatic and another being a revolver, and he was seeking retaliation due to a previous, unknown event.” Governor McKee and his staff learned about this when I told them - after an unrelated press conference.

When I issued an Access to Public Records Act (APRA) request to the Woonsocket Police Department for the body-worn camera footage, I was given video that [mostly] blurred the faces of the public officials. I made a complaint to Attorney General Peter Neronha’s office, and this week, over a year and a half later, the Attorney General ruled in my favor. I still don’t have the unredacted footage, but I have a favorable ruling for whatever that is worth.

It is said that justice delayed is justice denied - and that is certainly true in this case. In the time between making this request and receiving this favorable verdict (but still no unredacted video), Woonsocket Mayor Lisa Baldelli-Hunt has stepped down from office, Housing Secretary Stefan Pryor has stepped down (and the successor to his position has been confirmed after a lengthy process), and Governor Daniel McKee has continued to treat the issues around homeless Rhode Islanders with disdain and annoyance if not open hostility.

Here’s the letter from the Attorney General:

Dear Mr. Steve Ahlquist and Attorney Michael J. Lepizzera [City of Woonsocket]:

We have completed our investigation into the Access to Public Records Act (APRA) Complaint filed by Mr. Steve Ahlquist (Complainant) against the Woonsocket Police Department (Department). For the reasons set forth herein, we find that the Department violated the APRA.

Background and Arguments

The Complainant submitted a public records request to the Department seeking body-worn camera (BWC) footage from a police action on September 9, 2023. The BWC footage relates to public officials touring a homeless encampment in Woonsocket and arrests that took place during that event. The City subsequently provided responsive BWC footage to the Complainant.

The Complainant then submitted the instant Complaint with this Office. He asserts that not all of the responsive footage was provided, as in one video clip: “footage starts with 30 seconds of silence before the audio comes in” and “[o]ne of the videos starts mid-scene, omitting the beginning.” He further asserts that the Department improperly blurred the faces of everyone in the responsive footage except for police officers and the two individuals arrested. He asserts that the faces of Governor Daniel McKee, Woonsocket Mayor Lisa Baldelli-Hunt, Housing Secretary Stefan Pryor, members of the Woonsocket City Council, and employees of the aforementioned officials were impermissibly blurred. Finally, he takes issue with the way police officers in the footage used the mute buttons on their cameras, alleging that “officers, on the fly, muted conversations, possibly to cover up political interference in the way these arrests happened.”

Despite numerous correspondence to the City of Woonsocket City Solicitor’s office notifying the City of this Complaint and providing an opportunity for the City to respond, the Department has failed to submit a substantive response to the instant Complaint.

Relevant Law and Findings

When we examine an APRA complaint, our authority is to determine whether a violation of the APRA has occurred. See R.I. Gen. Laws § 38-2-8. In doing so, we must begin with the plain language of the APRA and relevant caselaw interpreting this statute.

• Withholding of audio or video footage

When a public body denies a public records request, in full or in part, it must inform the requestor “in writing, giving the specific reasons for the denial.” R.I. Gen. Laws § 38-2-7(a). This includes when a request is partially denied by the public body redacting or withholding parts of audio or video footage. Based on the record before us, it is not clear to this Office whether the Department redacted or withheld any portions of the responsive audio or video footage (with the exception of the blurred faces, which are discussed infra). If the Department did not redact or withhold any portions of the responsive audio or video footage provided to the Complainant (with the exception of the blurred faces), then it must provide a sworn affidavit attesting to that fact within ten (10) business days of the issuance of this finding. If, on the other hand, the Department did make additional redactions or withholding, then it must either provide the Complainant with the full, unredacted responsive audio and video footage within 10 business days of the issuance of this finding or, if it maintains that the redactions were permissibly made and not waived, it must provide this Office and the Complainant a submission within 10 business days of the issuance of this finding that explains why these redactions were permissible and not waived.

• Blurring of faces

The APRA provides that all records maintained by public bodies in connection with official business are subject to public disclosure unless the document falls within one of the 28 enumerated exceptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(BB). Relevant to this matter, R.I. Gen. Laws § 38-2-2(4)(D)(c) (“Exemption (D)(c)”)¹ permits nondisclosure of “records maintained by law enforcement agencies for criminal law enforcement and all records relating to the detection and investigation of crime” where disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Where a portion of a record is exempt, the APRA requires a public body to produce any reasonably segregable portion of the record that is not exempt. See R.I. Gen. Laws §38-2-3(b).

Here, the Complainant takes issue with the Department’s blurring of the faces of public officials and employees who were present for Governor McKee and Mayor Baldelli-Hunt’s tour of the homeless encampment in Woonsocket.

This Office has previously noted that individuals who appear in law enforcement records because they were involved in investigations and/or accused of wrongdoing have a personal privacy interest in the release of records that identify them. See Real World Media LLC v. Providence Police Department, PR 21-07 (finding that the Providence Police Department permissibly blurred the faces of witnesses, bystanders, and third-party individuals captured by BWC footage due to their personal privacy interests); see also Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 864 (D.C. Cir. 1981) (“There can be no clearer example of an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation.”)² But here, the public officials and employees whose faces were blurred appear in the responsive BWC footage because they were participating in a tour of a homeless encampment in connection with their official roles, not because they were under police investigation or accused of wrongdoing. Notably, the tour took place in public and was an official event. This diminishes their personal privacy interest in having these images revealed in the responsive video footage. To be clear, individuals do not lose all of their personal privacy interests simply because they are public officials or employees, but it can diminish their personal privacy interests, especially when it involves records that reveal what they did in their capacities as public officials or employees. See Farinelli v. City of Pawtucket, PR 21-03 (recognizing that “police officers in the performance of their public duties have a diminished privacy interest” and finding that the redaction of a police officer’s face violated the APRA). We have also not been provided with any information indicating that revealing the faces of these officials would cause embarrassment or disclose any particularly sensitive or private content.

The release of the full, unredacted footage of public officials’ tour of the homeless encampment will also shed light on what the government is up to. In the context of the FOIA, the United States Supreme Court has explained that the right to access public records “focuses on the citizens’ right to be informed about ‘what their government is up to.’ Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose.” United States Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 773 (1989). Here, we find that there is a public interest in the footage as it depicts officials and public employees carrying out their official rules. Given the relatively low privacy interests implicated in these particular circumstances, we find that the balance tips in favor of the public interests and disclosure. And despite being provided ample opportunity to do so, the City has not provided this Office with any arguments or evidence to the contrary. Accordingly, we conclude that the Department violated the APRA when it blurred the faces of public officials and employees in the responsive BWC footage.

To be clear, the Complaint in this case was limited to taking issue with the blurring of the faces of public officials and employees. The Complainant does not contend that the City improperly redacted any other faces of private members of the public or third parties, and accordingly, this finding does not address whether such redaction would have been permissible.

Muting of BWC

Finally, the Complainant asserts that the Department violated the APRA because of Department police officers’ use of the mute button on their body-worn cameras. He alleges that “officers, on the fly, muted conversations, possibly to cover up political interference in the way these arrests happened.” While this is certainly a serious allegation, it falls outside of this Office’s purview to investigate violations of the APRA. See Jackson v. Rhode Island State Police, PR 24-29 (“this Office’s purview in this matter is limited to investigations of potential violations of the APRA”) (citing R.I. Gen. Laws § 38-2-8(b)).

The APRA requires public bodies to produce public records in its custody or control. See R.I. Gen. Laws §§ 38-2-3(h), 38-2-7(c). Thus, “[i]t is well-settled that a public body does not violate the APRA by not producing records it does not maintain.” Robinson v. Rhode Island Department of Transportation, PR 25-05; see Lopez v. Providence Police Department, PR 20-03 (“Because the APRA does not require a public body to disclose records that do not exist or that are not within its custody or control, we find no violation[.]”); Azar v. Town of Lincoln, PR 13-21 (“The Town is Not Obligated to Give Ms. Azar Records it Does Not Have”). Accordingly, the alleged failure to properly record audio on a body-worn camera cannot constitute a violation of the APRA.

Conclusion

Upon a finding of an APRA violation, the Attorney General may file a complaint in Superior Court on behalf of the Complainant requesting “injunctive or declaratory relief.” See R.I. Gen. Laws § 38-2-8(b). A court “shall impose a civil fine not exceeding two thousand dollars ($2,000) against a public body ... found to have committed a knowing and willful violation of this chapter, and a civil fine not to exceed one thousand dollars ($1,000) against a public body found to have recklessly violated this chapter[.]” See R.I. Gen. Laws § 38-2-9(d).

Although seeking injunctive relief may be appropriate, we prefer to allow the Department an opportunity to comply with this finding. Accordingly:

1. Within 10 business days of the issuance of this finding, if the Department did not redact or withhold any portions of the responsive audio or video footage provided to the Complainant (with the exception of the blurred faces), then it must provide a sworn affidavit attesting to that fact to this Office and the Complainant. If, however, it did make additional redactions or withholding, then within ten (10) business days of the issuance of this finding, the Department should either

   1. provide the Complainant with the full, unredacted responsive audio and video footage or,

   2. if it maintains that the redactions were permissibly made and not waived, it must provide this Office and the Complainant a submission that explains why these redactions were permissible and not waived.

2. Within 10 business days of the issuance of this finding, the Department should provide the Complainant with the responsive BWC footage without any faces blurred. The Department should then provide this Office with a certification that it has done so.

3. Within 10 business days of the issuance of this finding, the Department should provide this Office and the Complainant with a supplemental submission addressing whether the violations found herein were willful and knowing or reckless.

Although the Attorney General will not file suit in this matter at this time, nothing within the APRA prohibits an individual or entity from obtaining legal counsel for the purpose of instituting injunctive or declaratory relief in the Superior Court. See R.I. Gen. Laws § 38-2-8(b). Please be advised that our file will remain open pending completion of the steps described above.

We thank you for your interest in keeping government open and accountable to the public.

Sincerely,

Attorney General Peter Neronha

By: Patrick Reynolds. Special Assistant Attorney General

1. The record before us does not make it clear what exemption(s) the Department cited for its blurring of face in the responsive footage. We will analyze the blurring under Exemption (D)(c), which appears to be the most likely potentially applicable exemption, but as discussed below, even assuming arguendo that Exemption (D)(c) had been properly asserted, it did not provide a permissible basis for blurring the faces of public officials and employees in the responsive footage.

2. We reference the Freedom of Information Act (“FOIA”) case law because the Rhode Island Supreme Court has made clear that “[b]ecause APRA generally mirrors the Freedom of Information Act * * * we find federal case law helpful in interpreting our open record law.” Pawtucket Teachers Alliance v. Brady, 556 A.2d 556, 558 n.3 (R.I. 1989).