User Name: MARY DUNN
Date and Time: Monday, April 8, 2019 11:22:00 AM EDT
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1. Providence Journal Co. v. Town of W. Warwick, 2004 R.I. Super. LEXIS 136
Client/Matter: nonbillable
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MARY DUNN

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Providence Journal Co. v. Town of W. Warwick
Superior Court of Rhode Island, Providence
July 22, 2004, Filed
KC 03-207, C.A. NO. 03-2697
Reporter
2004 R.I. Super. LEXIS 136 *; 2004 WL 1770102

THE PROVIDENCE JOURNAL COMPANY, ZACHARY
R. MIDER And PAUL PARKER, Plaintiffs v. TOWN OF
WEST WARWICK, WOLFGAND BAUER, in his
capacity as the Town Manager, CHARLES HALL in his
capacity as the Fire Chief of the Town of West Warwick,
and PETER BROUSSEAU, in his capacity as the Chief
of Police of West Warwick IRVING J. OWENS, in his
capacity as State Fire Marshall, ELIZABETH
LAPOSATA, in her capacity as State Medical Examiner,
and PATRICK LYNCH, in his capacity as Attorney
General for the State of Rhode Island, Defendants;
STATE OF RHODE ISLAND, Intervenor THE
PROVIDENCE JOURNAL CO. and PAUL PARKER,
Plaintiffs v. DONALD L. CARCIERI, in his capacity as
Governor of the State of Rhode Island, Defendant
STATE OF RHODE ISLAND, Intervenor

Core Terms
records, communications, disclosure, family member,
private citizen, public record, withheld, privacy, phone
call, categories, responder, Cassette, pages

communications consisted primarily of telephone calls
from victims and/or family members of victims. Such
calls were intensely personal and were intimately
intertwined with the tragedy as it was unfolding. Such
communications were entitled to protection. The court
further held that with regard to the fire communications,
victim and/or family member telephone calls were
exempt from disclosure. The victim location document
did not fall within any exception under APRA and was
provided to plaintiffs. Finally, the court held that
disclosure of the police reports would interfere with
pending criminal prosecutions. Disclosure of the police
reports could impact the fair trial rights of those charged
with crimes. Any disclosure of the police reports should
be made in the context of the criminal prosecutions as
they unfolded.
Outcome
The court granted plaintiffs' motion for summary
judgment in part and denied it in part.

LexisNexis® Headnotes

Case Summary
Procedural Posture
Plaintiffs, a news company and others, moved for
summary judgment in their action against defendants,
the State of Rhode Island, a town, and government
officials, for access to government records pursuant to
the Access to Public Records Act (APRA), R.I. Gen.
Laws § 38-2-1 et seq. (1956).
Overview
Plaintiffs sought access to certain records maintained by
defendants pursuant to APRA. The records related to a
nightclub fire tragedy. Plaintiffs moved for summary
judgment, claiming as a matter of law that they were
entitled to the records. The court found that the police

Administrative Law > Governmental
Information > Freedom of Information > General
Overview
Administrative Law > Governmental
Information > General Overview
HN1[ ] Governmental Information, Freedom of
Information
The purpose of the Access to Public Records Act
(APRA), R.I. Gen. Laws § 38-2-1 et seq. (1956), is to
facilitate public access to governmental records that
either pertain to policy-making functions of public bodies
and/or are relevant to public health, safety, and welfare.

MARY DUNN

 Page 2 of 5
2004 R.I. Super. LEXIS 136, *136
At the same time, it is recognized that APRA should
protect from disclosure information that would give rise
to an unwarranted invasion of individual privacy.

Administrative Law > Governmental
Information > Freedom of Information > General
Overview
HN2[ ] Governmental Information, Freedom of
Information
R.I. Gen. Laws § 38-2-10 (1956) provides that a public
body has the burden of proof in demonstrating that
records in dispute are properly withheld.
Judges: [*1] PFEIFFER, J.
Opinion by: PFEIFFER

Opinion

DECISION
PFEIFFER, J. These actions were brought by The
Providence Journal Company, et al. ("Plaintiffs") seeking
access to certain records maintained by the State of
Rhode Island, the Town of West Warwick, and certain
named government officials ("Defendants") pursuant to
the Access to Public Records Act found in G.L. 1956 §
38-2-1, et. seq. ("APRA"). These records relate to the
Station fire tragedy that ensued on February 20, 2003.
Although certain records have been released previously,
either voluntarily or as a result of a Consent Order dated
January 14, 2004, five categories of records await
determination as to whether they may be properly
provided to the Plaintiffs. The Plaintiffs have moved for
Summary Judgment pursuant to Super. R. Civ. P. Rule
56 claiming that as a matter of law they are entitled to
such records. Although the Defendants have objected to
the motion, they have not presented any persuasive
argument that an evidentiary hearing is necessary for
determining whether access is permitted. To the
contrary, although the parties may disagree as to the
interpretation of law that relates [*2] to this case, it
cannot be seriously argued that any material facts are in
dispute. No party disputes that a request for records
was made and denied. Also, the records speak for
themselves. The question is whether they are public
records and, if so, whether their disclosure is
impermissible under certain exceptions contained in

APRA.
There are five broad categories of records at issue in
this case:
West Warwick Police Department communications
("Police Communications");
West Warwick Fire Department communications
("Fire Communications");
Department of Human Services application list
("DHS list");
Victim Location document;
Certain West Warwick Police reports ("Police
Reports").
The Court has conducted an in camera review of the
records at issue. At the outset it would be helpful to
review the type of information that is presented in these
various records.
The Police Communications cover the period from
February 20, 2003, 11:00 p.m. to February 21, 2003,
3:00 a.m. There were 356 such communications within
that time frame, either by way of 911 calls, radio
dispatch, or telephone. Each such communication [*3]
is presented as an individual track on the compact disc
provided. Tracks totaling 276 have previously been
provided to the Plaintiff pursuant to the Consent Order.
Of the remaining 80 tracks, 20 are not related to the
Station fire. Accordingly, 60 remaining tracks are subject
to possible access and they may be categorized as
follows:
911 calls: 5 (one from a family member, one from a
private citizen, one unknown whether from victim or
private citizen, and two inaudible).
Family member phone calls: 40
Private citizen calls: 13
First responder phone communication: 1
Off-duty police communication: 1
The Fire Communications are presented in 6 audio
cassettes. A 911 cassette consists exclusively of 911
calls from victims, private citizens and family members
of victims. There are 21 such calls. Five additional
cassettes are labeled numerically. Cassette # 1 consists
of 52 communications, 8 of which are unrelated to the
Station fire. The remaining 44 calls can be summarized
as follows:
911 calls: 3 (one from a victim and two unknown
whether from victim or private citizen).
Family [*4] member phone calls: 2
Private citizen phone calls: 6

MARY DUNN

 Page 3 of 5
2004 R.I. Super. LEXIS 136, *4
First responder phone calls: 27
Media phone calls: 6
Cassette # 2 consists of 73 communications, one of
which is unrelated to the Station fire, and the balance of
which are first responder communications. Tapes 3, 4
and 5 contain 39 first responder communications.
The third category of records is the DHS list. It is 278
pages in length and was created by the Office of
Governor Donald Carcieri in response to hundreds of
individuals who sought public assistance from the
Station Fire Family Resource Center. The fourth
category of documents is the Victim Location document.
That single page document, dated August 28, 2003,
was created by the State Fire Marshall's Office and
depicts the locations of 96 bodies at the Station
nightclub. It does not identify specific victims by location.
The fifth and final category of records is the Police
Records. Those records consist of the following
documents:
Incident report totaling 102 pages.
Police officer narrative by 18 different officers
totaling 81 pages.
Evidence log consisting of 2 pages.
[*5]
Search Warrant inventory, 1 page in length.
Multiple witness statements totaling 458 pages.
In determining what, if any, of these public records are
subject to release to the Plaintiffs, it is necessary to
review certain APRA provisions. Section 38-2-1
presents the purpose of APRA, in which the cornerstone
principles of public access and individual privacy are
recognized. As stated therein, HN1[ ] the purpose of
said act is to facilitate public access to governmental
records that either pertain to policy making functions of
public bodies and/or are relevant to public health, safety
and welfare. At the same time, it is recognized that
APRA should protect from disclosure information that
would give rise to an unwarranted invasion of individual
privacy. These dual purposes frequently give rise to
conflict and require a balancing analysis when
confronted with a specific record request. Section 38-210 provides that HN2[ ] the public body has the burden
of proof in demonstrating that the records in dispute are
properly withheld.
In reviewing the Defendants' objection to providing
certain records sought by the Plaintiffs, the Court
concludes that it would be burdensome and [*6]
unnecessary to have an item by item review of each
individual record sought. The categories and

subcategories of records as set forth above are
sufficient for analyzing and determining what records
should be provided or withheld.
In evaluating the specific record requests that are now
before the Court, it is necessary to review § 38-2-2 to
comprehend what is a public record within the purview
of the APRA. Suffice it to say that all of the records
sought by the Plaintiffs in this case are within the broad
definition of public record as contained in § 38-2-2(4)(i).
Section 38-2-2, however, also presents broad
exceptions to said definition. A review of these
exceptions will be undertaken as it relates to each of the
five categories of records for which access is sought.
Turning first to Police Communications, many of these
calls (both 911 and telephone calls) are from victims
and/or family members of victims. These calls are
intensely personal and are intimately intertwined with
the Station fire tragedy as it was unfolding. These
communications are entitled to protection whether
initiated by victims or family members to avoid a highly
intrusive interference with the legitimate [*7] privacy
entitlement these individuals should be afforded. See
National Archives and Records Administration v. Favish,
541 U.S. 157, 124 S. Ct. 1570, 158 L. Ed. 2d 319, 2004
U.S. LEXIS 2546, 72 U.S.L.W. 4265 (2004).
Furthermore, any legitimate inquiry based on public
interest considerations is significantly outweighed by the
privacy expectations of victims and family members.
Moreover, regarding the 911 calls, only one such call is
clearly from a private citizen, as opposed to a victim or
family member. That call is appropriately shielded from
disclosure under the provisions of G.L.1956 § 39-21.14(2). It is also noteworthy that the content of such call is
unrelated to any significant matter of public interest
since it simply constitutes a brief notification regarding
the emergency.
Thus, all 911 and victim/family member calls within the
Police Communications category are properly withheld
from disclosure under the exception contained in § 38-22 (4)(i)(D) and, when applicable, § 39-21.1-4(2). To
allow access to victim/family members calls would be at
variance with the purpose of APRA which recognizes
the desirability of preserving individual [*8] dignity. This
Court cannot conceive of a greater affront to such
dignity than permitting others to listen to the anguish
that is embodied in such communications.
Regarding the remaining subcategories of Police
Communications, the Defendants have failed to
demonstrate that they fall within said exception or other

MARY DUNN

 Page 4 of 5
2004 R.I. Super. LEXIS 136, *8
exceptions contained in APRA. Specifically, the
remaining categories are private citizen phone calls, a
first responder call, and an off-duty policy call. As noted,
following an earlier hearing giving rise to the Consent
Order, the Defendants have failed to satisfy this Court
that the disclosure of these categories of calls would
significantly impact an investigation or enforcement
proceeding or implicate "fair trial" rights of any
individual. Furthermore, these calls do not present
privacy considerations in the manner that victim/family
member calls do. These calls and/or communications
should be redacted as previously done consistent with
the Consent Order to remove references by name,
phone number or other identifying characteristics of the
person placing the call.
Turning to the second category of record, the Fire
Communications, these calls have been analyzed
exactly [*9] as were the Police Communications. Victim
and/or family member calls are exempt from disclosure.
The 911 calls that cannot be classified are withheld from
disclosure as well. All remaining calls must be disclosed
with appropriate redaction as above noted.
Regarding the DHS application list, the Governor's office
has properly withheld access to these records. A review
of § 38-2-2(4)(i)(A)(I) readily demonstrates that these
records are identifiable to individual applicants for
benefits and are thus outside the definition of public
record. Moreover, there is no way to redact these
records to remove them from such exception.
Accordingly, access is denied.
The next category of records is the Victim Location
document. After considering the applicable provision of
APRA and reviewing the document in issue, the Court is
satisfied that it does not fall within an exception under
the Act, and thus should be provided. It should be noted
that this record is not specific as to any individual victim.
It depicts "groupings" of where bodies were found within
the Station. Legitimate access by the public is warranted
and such access in this Court's opinion would not
constitute an unwarranted invasion [*10] of individual
privacy rights. Nor has it been seriously advanced that
disclosure of this document would adversely impact a
investigative/enforcement proceeding or any "fair trial"
rights of individuals. Furthermore, while it may be true
that this document did not exist when the Plaintiffs made
the record request, judicial economy and practicality
lead this Court to conclude that disclosure be made,
rather than require the Plaintiffs to initiate a new
request. Furthermore, any effort to immunize such
disclosure by asserting that it is not a final report lacks

merit. No argument has been advanced that would
suggest the document is a preliminary draft, which
would make disclosure inappropriate.
The fifth and final category of documents is the Police
Reports. As noted previously, these include incident
reports, police officer narratives, evidence logs, a
search warrant inventory, and numerous witness
statements. These records were specifically developed
and prepared for criminal investigative purposes and
what later became enforcement proceedings as a result
of indictments returned by a statewide Grand Jury. As
such, the disclosure of these records necessarily would
interfere with the [*11] criminal prosecutions now
pending and arguably could impact the "fair trial" rights
of those charged with crimes. Any disclosure of these
records should be made in the context of the criminal
prosecutions as they unfold.
The Defendants have argued that the record requests
made by the Plaintiffs must be evaluated based on the
circumstances existing at the time each request was
initiated, not at some later point in time such as when
the summary judgment motion was made and
subsequently argued. The Defendants' argument is
advanced in the context of the decision in Bonner v.
United States Dep't of State, 928 F.2d 1148 (D.C. Cir.
1991). The Court rejects Defendants' argument. In the
context of the case before this Court in which there has
been a segmented release of records over time
following an initial blanket denial, the Court concludes
that it would be inappropriate to apply that general rule.
That notwithstanding, the conclusion of this Court as to
which of the requested records discussed above would
be disclosed and which withheld would be exactly the
same, regardless of the point in time such evaluation
would be made.
In conclusion, the Plaintiffs in this case have zealously
and [*12] properly sought access to many public
records, the majority of which were subsequently
provided voluntarily or by prior or current order of this
Court. In certain instances, access has been withheld
properly by the public officials, including both the
Governor and the Attorney General. These decisions
have presented a most daunting challenge for these
public officials who have a duty to make available public
records while recognizing the legitimate exceptions that
relate to the investigative and enforcement proceedings
that transpired as a result of this horrific event. And
more importantly, in this Court's opinion, these officials,
in the wake of this unprecedented human tragedy, have
attempted in good faith to fulfill these requirements,

MARY DUNN

 Page 5 of 5
2004 R.I. Super. LEXIS 136, *12
while at the same time attempting to protect the privacy
interests and the dignity of the victims and their family
members.
Counsel are directed to prepare a form of order allowing
and denying access to the various records that have
been reviewed in camera by this Court, consistent with
this decision. If necessary, counsel may petition for
supplementary relief to effectuate such disclosure.

End of Document

MARY DUNN