Paul E. Pontarelli
Rhode Island Department of Elementary and Secondary Education et al.
County Superior Court Appeal. (PC 15-4450) Associate Justice
Richard A. Licht.
Plaintiff: Jeffrey D. Sowa, Esq.
Defendants: Meghan E. Siket, Esq., Joseph D. Whelan, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Francis X. Flaherty, Justice.
plaintiff, Paul E. Pontarelli, appeals from a Superior Court
order granting the motion to dismiss of the defendants, the
Rhode Island Department of Elementary and Secondary Education
(RIDE) and Ken Wagner, in his capacity as the commissioner of
RIDE. Pontarelli sought access to records in RIDE's
possession pursuant to the Access to Public Records Act
(APRA), G.L. 1956 chapter 2 of title 38. The catch, however,
was that those purportedly public records were not related to
the statutory mission of RIDE, but to the "private law
practice" of one of RIDE's employees. The agency
rejected Pontarelli's request, prompting him to seek
declaratory relief in the Superior Court. That relief was
denied, and Pontarelli timely appealed to this Court. For the
reasons set forth herein, we affirm the order of the Superior
April 13, 2015, Pontarelli sent the following request for
public records to RIDE:
"All records related to the private law practice of [a
RIDE employee], which have been created, produced, printed,
scanned, faxed, emailed, maintained or stored at or on the
property of the Rhode Island Department of Education, the
Rhode Island Council on Elementary and Secondary Education or
the Rhode Island Board of Education including, but not
limited to, computers, copiers, servers, computer storage
systems and/or networks."
April 21, 2015, the public information officer at RIDE denied
"Should there be any such records maintained or stored
at or on the property of the Rhode Island Department of
Education, the Rhode Island Council on Elementary and
Secondary Education, or the Rhode Island Board of Education,
such records would not be public records under the definition
of 'public records' within the Access to Public
Records Act, RIGL 38-2-2(4), as such records would not be
made or received pursuant to law or ordinance or in
connection with the transaction of official business by this
appealed that denial to then-Commissioner Deborah A. Gist. He
asserted that, under § 38-2-3(a), all records maintained
or kept on file by a public body are public records.
Nevertheless, Gist, too, rejected Pontarelli's request.
She reasoned that the very section of APRA cited by
Pontarelli provides that records maintained or kept on file
by a public body are public records "[e]xcept as
provided in § 38-2-2(4), " which defines public
records as only those "made or received pursuant to law
or ordinance or in connection with the transaction of
official business by any agency." Accordingly, the
commissioner reasoned, the requested records pertaining to
the private law practice of the RIDE employee were not
subject to disclosure. Gist further informed Pontarelli that
APRA "does not go so far as to state that all records
maintained or stored on the property of an agency are public
records"; rather, she stated, they must be maintained or
stored there by the agency. Thus, Gist concluded,
records that were related to the employee's private law
practice "would not become public records based solely
[on] the place of their storage."
Gist left her position, and Wagner became the commissioner of
RIDE. Also around that time, Pontarelli learned of RIDE's
network policy, which provides that "[t]ransactions
resulting from network usage are the property of the [s]tate
and are thus subject to open records laws." The policy
also advises that email messages are considered public
records pursuant to APRA and that RIDE records are open to
then asked Wagner to reconsider Gist's decision of his
appeal of RIDE's denial of his public-records request.
Wagner did not dispute the contents of RIDE's network
policy; however, he informed Pontarelli that a violation of
that policy by an employee would be handled simply as a
personnel matter. And Wagner, like Gist before him, notified
Pontarelli that the requested records "related to the
private law practice" of the RIDE employee were, by
definition, not public records. Therefore, he declined to
disturb the earlier denial.
then filed a complaint for declaratory relief in the Superior
Court. He alleged, in essence, that he had filed a
public-records request with RIDE; that that request had been
denied by RIDE; and that he had thereafter pursued
administrative appeals by petitioning Gist, and later Wagner,
for review, to no avail. Pontarelli asserted that the
requested records ...