Paul E. Pontarelli v. Rhode Island Department of Elementary and Secondary Education

January 16, 2018
January 16, 2018
Supreme Court
No. 2016-336-Appeal.
(PC 15-4450)
Paul E. Pontarelli :
v. :
Rhode Island Department of Elementary :
and Secondary Education et al.
NOTICE: This opinion is subject to formal revision before publication in
the Rhode Island Reporter. Readers are requested to notify the Opinion
Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Tel. 222-3258 of any typographical or other
formal errors in order that corrections may be made before the opinion is
published.
Supreme Court
No. 2016-336-Appeal.
(PC 15-4450)
Paul E. Pontarelli :
v. :
Rhode Island Department of Elementary :
and Secondary Education et al.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The 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 Court.
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I
Facts and Travel
On 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.”
On April 21, 2015, the public information officer at RIDE denied Pontarelli’s request:
“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
agency.”
Pontarelli 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
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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.”
Subsequently, 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 public inspection.
Pontarelli 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.
Pontarelli 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 were
public records, subject to disclosure, under APRA, and he asked the Superior Court to so
declare. 1
1
Pontarelli first filed a complaint requesting a writ of mandamus; however, the Superior Court
granted Pontarelli leave to amend, and his first amended complaint instead sought a declaratory
judgment.
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RIDE moved, pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure,
to dismiss the complaint. During the hearing on the motion to dismiss, the motion justice first
discussed a procedural issue. He noted that the complaint, while setting forth Pontarelli’s claim
that he had requested and had been denied access to what he believed to be public documents,
did not describe or identify the documents about which he requested declaratory relief. The
motion justice recognized that, in ruling on a motion to dismiss pursuant to Rule 12(b)(6), he was
restricted to the four corners of the complaint. At the same time, the motion justice reasoned that
it would be an exercise in futility to rule on the motion without first knowing what documents
had been sought. 2 Therefore, the justice determined that he would review the request.
Turning to the merits, the motion justice first clarified that he was charged with enforcing
APRA, not RIDE’s network policy. He then found that, under the definition of “public records”
set forth in § 38-2-2(4), the requested records, related as they were to the private law practice of
a RIDE employee, were not connected to the transaction of official business by RIDE. The
motion justice also noted that the first exception to the definition of public records is records that
relate to a client/attorney relationship. He concluded that construing APRA as requiring
disclosure of the employee’s attorney files relating to his private clients, but not those relating to
his legal work at RIDE, would reach an absurd result. For all those reasons, the motion justice
found that the requested documents were not public records, and he granted RIDE’s motion to
dismiss Pontarelli’s complaint.
The Appeal
Before this Court, Pontarelli argues that the requested records indeed constitute public
records under this Court’s APRA precedent. He asserts that RIDE is cloaked with the burden of
2
It is not in dispute that the relevant document request was attached to RIDE’s memorandum in
support of its motion to dismiss.
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proving otherwise and that, in attempting to do so, RIDE cannot rely on any exception that is
enumerated in § 38-2-2(4) because it did not raise such in its initial denial of his request and thus
has waived any such reliance. Pontarelli also stresses that RIDE’s position in this case is directly
contrary to its own network policy. Finally, Pontarelli claims that RIDE’s motion to dismiss
should have been converted to a motion for summary judgment because the motion justice relied
on a document that was not part of the complaint.
II
Standard of Review
“[T]he sole function of a motion to dismiss is to test the sufficiency of the complaint.”
Narragansett Electric Co. v. Minardi, 21 A.3d 274, 277 (R.I. 2011) (quoting Laurence v.
Sollitto, 788 A.2d 455, 456 (R.I. 2002)). For that reason, “[w]hen ruling on a Rule 12(b)(6)
motion [to dismiss], the trial justice must look no further than the complaint, assume that all
allegations in the complaint are true, and resolve any doubts in a plaintiff’s favor.” Multi-State
Restoration, Inc. v. DWS Properties, LLC, 61 A.3d 414, 416 (R.I. 2013) (quoting Laurence, 788
A.2d at 456). “The motion may then only be granted if it appears beyond a reasonable doubt that
a plaintiff would not be entitled to relief under any conceivable set of facts * * *.” Id. at 417
(quoting Laurence, 788 A.2d at 456). Generally, however, “when the motion justice receives
evidentiary matters outside the complaint and does not expressly exclude them in passing on the
motion, then Rule 12(b)(6) specifically requires the motion to be considered as one for summary
judgment.” Id. (quoting Martin v. Howard, 784 A.2d 291, 298 (R.I. 2001)). “In passing on a
Rule 12(b) dismissal, this Court applies the same standard as the trial justice.” DiLibero v.
Mortgage Electronic Registration Systems, Inc., 108 A.3d 1013, 1015 (R.I. 2015) (quoting
Minardi, 21 A.3d at 278).
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III
Discussion
A
Dismissal Under Rule 12(b)(6)
“A motion to dismiss under Rule 12(b)(6) allows a court to dispose of a proceeding at an
early stage if the complaint fails to set forth provable facts under which relief could be granted.”
Leone v. Mortgage Electronic Registration Systems, 101 A.3d 869, 873 (R.I. 2014). Of course,
in testing the sufficiency of a complaint, “[w]e thus are confined to [its] four corners * * * and
must assume all allegations are true, resolving any doubts in plaintiff’s favor.” Minardi, 21 A.3d
at 278.
The factual assertions in Pontarelli’s complaint are nothing more than allegations that he
had requested access to records pursuant to APRA, that those records were public records as
defined in APRA, and that RIDE denied his request in violation of APRA. There was no copy of
the request attached to the complaint, and it was neither quoted nor even described therein. In
the absence of Pontarelli’s public-records request, it was impossible for the motion justice to test
the sufficiency of the complaint when RIDE moved to dismiss it pursuant to Rule 12(b)(6)—a
crucial juncture in our rules of civil procedure. Recognizing this snag, RIDE submitted
Pontarelli’s APRA request to the motion justice as an attachment to its memorandum in support
of its motion to dismiss; and, realizing that he needed to refer to it in passing on RIDE’s motion,
the motion justice considered the language therein. 3
Nevertheless, the motion justice elected not to convert RIDE’s motion to dismiss to a
motion for summary judgment. This was despite his acknowledgment of Rule 12(b)’s mandate
3
We observe that Pontarelli’s memorandum in support of his objection to the motion to dismiss
was also accompanied by attachments.
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that “[i]f * * * matters outside the pleading are presented to and not excluded by the court, the
motion [to dismiss under Rule 12(b)(6)] shall be treated as one for summary judgment and
disposed of as provided in Rule 56 * * * ”; and further, if such a conversion happens, that “all
parties shall be given reasonable opportunity to present all material made pertinent to such
motion by Rule 56.” See also Bowen Court Associates v. Ernst & Young, LLP, 818 A.2d 721,
726 (R.I. 2003). The motion justice articulated the following reasoning for his decision:
“[S]o if all the complaint ever said is [‘]I made an open records
request, it was denied, the records are public, I’m entitled to them,
give them to me,[’] no agency could ever make a 12(b)(6). They’d
have to go through the whole expense of doing discovery, writing
summary judgment motions and everything else because you’re
saying I can’t look, on that complaint, I have to take everything as
true so, therefore, it’s true that you filed it, it’s true that it was
denied, and it’s true that it’s a public record and, therefore, I can’t
dismiss it, and I put the agency through having to file a motion for
summary judgment, maybe have to file affidavits, and everything
else. Where this letter, and it’s not like we are looking for a lot of
documents. It’s one document—
“***
“—and it’s rather brief. And forget its length, it’s integral
to your complaint. You say they violated the open records law for
failing to comply with something but, yet, you want to say, Judge,
you can’t look at it. So, therefore, let’s get onto the next thing.
“If you’re correct on that, then I don’t have to get to the
substance. I just have to wait until you come back on summary
judgment, and I’m not sure that that is efficient.
“I could see if I start to dig into the records and say I’ve
looked at them, and that’s something totally different. I’m only
questioning whether I can look at one document, and you don’t
think I can, for this motion.”
Moreover, he said, “To convert this to a Rule 56 motion would not serve anything or add
anything to the record, and it would not in any way assist the [c]ourt because this motion can be
resolved as a matter of law.” In response, Pontarelli reiterated his argument that, because he did
not incorporate the request in the complaint, the motion justice was precluded from referring to
its contents.
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This Court has had occasion to visit this issue in the past. In Bowen Court Associates, we
said that a complaint’s merely “mention[ing] or refer[ring] to” documents does not cause them to
be incorporated in the complaint. Bowen Court Associates, 818 A.2d at 726. Thus, when the
motion justice in that case received documents mentioned or referred to, but not incorporated, in
the complaint sounding in negligence, and did not explicitly exclude them from her
consideration, the motion to dismiss was automatically converted to a motion for summary
judgment. Id. In Bellevue-Ochre Point Neighborhood Association v. Preservation Society of
Newport County, 151 A.3d 1223 (R.I. 2017), where the hearing justice considered outside
materials and “issued a thorough decision that considered the issues raised in [the] plaintiff’s
complaint,” the motion to dismiss the declaratory-judgment action was converted to a motion for
summary judgment. Bellevue-Ochre Point, 151 A.3d at 1228-29. In Leone, where both parties
submitted to the motion justice documents outside the complaint for declaratory relief, we said
that he properly converted the motion to dismiss to one for summary judgment, and neither party
could claim to be aggrieved by lack of notice. Leone, 101 A.3d at 873. And, in Tucker Estates
Charlestown, LLC v. Town of Charlestown, 964 A.2d 1138 (R.I. 2009), we held that “[a]
dismissal of a declaratory-judgment action before a hearing on the merits, under Rule 12(b)(6), is
proper only when the pleadings demonstrate that, beyond a reasonable doubt, the declaration
prayed for is an impossibility.” Tucker Estates, 964 A.2d at 1140.
Although we do not depart from the holdings or reasoning of those cases, in the
somewhat unusual posture of this case, we agree with the rationale of the motion justice.
Pontarelli’s complaint sought a declaratory judgment that he was entitled to access the records
that he had requested from RIDE pursuant to APRA. However, at the motion-to-dismiss stage,
the motion justice did not yet know what records Pontarelli had requested. Without looking to
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Pontarelli’s public-records request, RIDE’s Rule 12(b)(6) motion would have been rendered a
nullity, and RIDE would have been unfairly deprived of the use of this important procedural tool.
Furthermore, absent any need for factual development, this was a case prime for preliminary
review as to the sufficiency of the complaint—and, as a matter of law, whether Pontarelli’s
request sought “public records” as that term is defined in APRA. Even a period of limited
discovery would have yielded no necessary or relevant information, and a subsequent motion for
summary judgment would have been decided as a matter of law based on the public-records
request alone. Unless the motion justice found that Pontarelli’s complaint stated a valid claim
for relief in that he was potentially entitled to those records, nothing more could have been
accomplished. And that finding would have been impossible for the motion justice to make
without considering the public-records request, a document so intertwined with the complaint as
to become part of it, even without appending the request thereto or incorporating it by reference
therein. See Beddall v. State Street Bank & Trust Co., 137 F.3d 12, 16, 17 (1st Cir. 1998)
(adopting a “practical, commonsense approach” and stating that when “a complaint’s factual
allegations are expressly linked to—and admittedly dependent upon—a document (the
authenticity of which is not challenged), that document effectively merges into the pleadings and
the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)”). Accordingly,
we hold that, under the narrow circumstances of this case, the motion justice did not err when he
considered the language of Pontarelli’s APRA request in ruling on RIDE’s motion to dismiss.
B
The Merits
With the procedural posture resolved, we now examine whether it was “clear beyond a
reasonable doubt that [Pontarelli] would not be entitled to relief * * * under any set of facts that
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could be proven in support of [his] claim.” Chhun v. Mortgage Electronic Registration Systems,
Inc., 84 A.3d 419, 422 (R.I. 2014) (quoting Palazzo v. Alves, 944 A.2d 144, 149-50 (R.I. 2008)).
That determination hinges on whether “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 [RIDE],” are “public records” under APRA.
Section 38-2-2 defines “public records” as “all documents, papers, * * * computer stored
data (including electronic mail messages * * * ), or other material regardless of physical form or
characteristics made or received pursuant to law or ordinance or in connection with the
transaction of official business by any agency.” Section 38-2-2(4) (emphasis added). That
section goes on to enumerate certain exceptions which, “[f]or the purposes of [APRA], * * *
shall not be deemed public[.]” Id. In turn, § 38-2-3 states, “[e]xcept as provided in § 38-2-2(4),
all records maintained or kept on file by any public body, whether or not those records are
required by any law or by any rule or regulation, shall be public records and every person or
entity shall have the right to inspect and/or copy those records * * *.” Section 38-2-3(a)
(emphasis added).
Pontarelli asserts that the requested records related to the “private law practice” of the
employee are public records as defined in APRA because, under § 38-2-3(a), those records are
“maintained or kept on file by” RIDE and because they do not fall within an exception
enumerated in § 38-2-2(4). 4 However, such an interpretation completely reads the definitional
language of § 38-2-2(4)—that public records are those “made or received pursuant to law or
4
On this point, Pontarelli contends that RIDE has waived any argument that the requested
records fall within an exception enumerated in G.L. 1956 § 38-2-2(4) because RIDE failed to
specify that reason for nondisclosure when it initially denied Pontarelli access. See § 38-2-7(a)
(“Except for good cause shown, any reason not specifically set forth in the denial shall be
deemed waived by the public body.”). This issue will be addressed infra.
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ordinance or in connection with the transaction of official business by any agency”—out of the
statute. In previous opinions, this Court has clearly read §§ 38-2-2(4) and 38-2-3(a) in
conjunction with one another in defining what constitutes a public record for the purposes of
APRA. See Providence Journal Co. v. Sundlun, 616 A.2d 1131, 1134 (R.I. 1992) (“Read
consecutively, §§ 38-2-2[(4)] and 38-2-3 set forth the definition of a public record for the
purposes of disclosure under the act * * *.”); Hydron Laboratories, Inc. v. Department of
Attorney General, 492 A.2d 135, 137 (R.I. 1985) (“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.”). It is true, as Pontarelli argues, that we have also said that
“records are subject to public disclosure unless they fall within one of the enumerated exceptions
contained in APRA.” The Providence Journal Co. v. Convention Center Authority, 774 A.2d 40,
46 (R.I. 2001); see also Pawtucket Teachers Alliance Local No. 920, AFT, AFL-CIO v. Brady,
556 A.2d 556, 557 (R.I. 1989) (“Section 38-2-3 * * * of APRA grants every individual the right
to inspect and copy all records maintained by public entities subject to * * * express exceptions
contained in § 38-2-2 * * *.”). However, it is our opinion that that proclamation rests squarely
on the assumption that the records are subject to public disclosure ab initio because they satisfy
the fundamental requirement that they were “made or received pursuant to law or ordinance or in
connection with the transaction of official business by any agency.” Section 38-2-2(4). Only
records that meet that definition must fall under an enumerated exception to be exempted from
public disclosure. After all, the language of § 38-2-2(4) that, “[f]or the purposes of [APRA],”
records that qualify for an exception “shall not be deemed public” necessarily implies that they
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first meet the basic definition of “public records.” Accordingly, we take this opportunity to
clarify that records must satisfy the underlying definition of “public records” to be subject to
disclosure under APRA.
Viewing the matter through that prism, we hold without hesitation that the records
Pontarelli requested are not public records for the purposes of APRA. In no way are records
related to the private law practice of a RIDE employee “made or received pursuant to law or
ordinance or in connection with the transaction of official business by [RIDE].” Section 38-2-
2(4). Indeed, the very language of Pontarelli’s public-records request and the nature of the
requested documents undermine his claim. As such, his complaint in the Superior Court
“fail[ed] to set forth provable facts under which relief could be granted[,]” and the motion justice
properly disposed of it on RIDE’s motion to dismiss. Leone, 101 A.3d at 873.
As a last salvo, Pontarelli falls back on an argument that RIDE failed to satisfy its burden
of proving that the requested records should not be accessible to the public. He is correct that,
generally, an agency bears the burden of showing that records requested pursuant to APRA are
not subject to disclosure. See § 38-2-10 (“In all actions brought under this chapter, the burden
shall be on the public body to demonstrate that the record in dispute can be properly withheld
from public inspection * * *.”). However, it must first be the case that the records sought meet
the definition of “public records.” Again, the language of Pontarelli’s own request revealed that
the records could “be properly withheld from public inspection under [APRA].” Id. RIDE
therefore had no obligation to affirmatively make such a demonstration. Furthermore, for that
same reason, RIDE had no need to rely on the applicability of one of the exceptions enumerated
in § 38-2-2(4). Consequently, we need not consider Pontarelli’s waiver argument. See Grady v.
Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009) (referring to “our usual policy of not
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opining with respect to issues about which we need not opine”). Finally, we pause to note that
RIDE’s own network policy—even if it were to characterize the requested records as accessible
via APRA—has no bearing on the outcome of this case. See State v. Rhode Island Alliance of
Social Services Employees, Local 580, SEIU, 747 A.2d 465, 469 (R.I. 2000) (stating the
“fundamental proposition” that “applicable state * * * law trumps * * * contrary practices of the
parties”).
IV
Conclusion
For the reasons stated herein, we affirm the order of the Superior Court. The record shall
be returned to that tribunal.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Paul E. Pontarelli v. Rhode Island Department of
Title of Case
Elementary and Secondary Education et al.
No. 2016-336-Appeal.
Case Number
(PC 15-4450)
Date Opinion Filed January 16, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, J.J.
Written By Associate Justice Francis X. Flaherty
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Richard A. Licht
For Plaintiff:
Jeffrey D. Sowa, Esq.
Attorney(s) on Appeal
For Defendants:
Meghan E. Siket, Esq.
Joseph D. Whelan, Esq.
SU-CMS-02A (revised June 2016)