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R~ DEPARTMENT OF ATTORNEY GENERAL150 South Main Street •Providence, RI 02903

.. ~. (401) 274-4400 - TDD (401) 453-0410

Peter F. Kilmartin, Attorney General

VIA EMAIL ONLY

August 15, 2017ADV OM 17-02OM 17-24PR 17-40

Attorney Dawn Euer

Ms. Nancy Grieb

In Re: Aquidneck Island Planning CommissionGrieb v. Aquidneck Island Planning CommissionGrieb v. Aquidneck Island Planning Commission

Dear Attorney Euer and Ms. Grieb:

The review of Attorney Euer's request for an Access to Public Records Act ("APR.A") and OpenMeetings Act ("OMA") advisory opinion and your two APRA and OMA complaints against theAquidneck Island Planning Commission ("AIPC"), respectively, is complete. Although you bothfiled separate correspondence to this Department, because you raise nearly identical issues weaddress this matter through a single finding/advisory opinion.

Attorney Euer wrote this Department asking for an advisory opinion on behalf of her client, theAIPC, regarding the applicability of the APRA and the OMA to the AIPC. Specifically, the AIPCcontends that:

"AIPC is atax-exempt Rhode Island nonprofit committed to conducting itsactivities in an open and transparent manner. Unfortunately AIPC's organizationalevolution has caused confusion over the applicability of the OMA and APR.A. Dueto the desire to operate openly and transparently, AIPC has been voluntarilycomplying with the OMA and APRA. Recently however, requests under APRAhave become aggressive and more frequent which have been disruptive to this small

In Re: Aquidneck Island Planning CommissionGrieb v. Aquidneck Island Planning CommissionADV OM 17-02OM 17-24PR 17-40

organization. Therefore, AIPC is seeking the Attorney General's assistanceclarifying its responsibilities under APRA and OMA."

In support, the AIPC submitted the following, in relevant part:

"The [AIPC] was originally organized in 1985 as a joint municipal planningcommission serving Aquidneck Island municipalities (Portsmouth, Middletown,Newport) enabled by R.I. Gen. Laws] § 45-22.1. In its early form, AIPC wasenvisioned as an extension of the municipal planning offices that would focus onregional issues. Resolutions from Portsmouth, Middletown and Newport in 1985reference R.I. Gen. Laws] § 45-22.1 and establish membership of AIPC to consistof three (3) voting members and one (1) alternate from each municipal planningboard of Newport, Middletown, and Portsmouth. In other words, all AIPC boardmembers and alternates were sitting members of the planning board in theirrespective municipalities. In its early years, AIPCmet bi-monthly, had no operatingbudget and was reliant on the municipalities.

However, since its formation in 1985, AIPC's relationship to the municipalities hasmaterially changed. AIPC is now a domestic non-profit corporation with theprimary purpose of preserving and restoring Aquidneck Island's environment,economy and quality of life. AIPC was incorporated as a Rhode Island non-profitcorporation in 2003 and received federal tax-exempt status from the InternalRevenue Service in 2005. AIPC has adopted its own bylaws and has sole discretionto amend those bylaws. AIPC's board members have no required connection orrelationship to any municipal board or commission, nor are they required to besitting members of any other board or commission. In fact, most of AIPC's currentboard members have no connection to any aspect of municipal government, eitherelected or appointed. AIPC does not undertake planning efforts in place of or at thedirection of the municipalities. Rather, AIPC is an independent tax-exemptnonprofit organization focused on carrying out its mission, working with a varietyof private and public sector partners and fenders. Internal governance and fiscaloversight of the organization follows nonprofit standards in compliance with theRhode Island Nonprofit Corporation Act, R.I. Gen. Laws § 7-6, and InternalRevenue Code and guidance for § 501(c)(3) organizations.

*~:*

AIPC is administered and managed by an independent and unpaid Board ofDirectors (the "Board") consisting of four board members from each of the threemunicipalities (Portsmouth, Middletown, and Newport), each of whom is entitledto vote on board matters. Additionally, an Advisory Committee includes one non-


voting member from Naval Station Newport and one representing the Chamber ofCommerce.

In an effort to collaborate more closely with municipal leadership, according to theinternally established bylaws, AIPC has opted to have board members appointedby each municipality. Board members must be residents of the membercommunities and are beyond the legal control of the municipalities or any publicagency. Board members serve three (3) year terms.

***

The Board has sole and exclusive authority to appoint an Executive Director whoserves, under the direction of the Board, as the chief administrative agent of theBoard. The Executive Director is responsible for the active executive managementand day-to-day operations of AIPC subject to control of the Board and relevantstate and federal laws governing nonprofit activities.

Neither the Town of Portsmouth, Town of Middletown, City of Newport nor anyother public body ("the municipalities"), has control over the Executive Director orthe Board in their administration and management of AIPC. AIPC has no obligationto obtain approval regarding its operation and activities from the Town ofPortsmouth, Town of Middletown, City of Newport, nor any other public body.

AIPC, through its Board and Executive Director, has the sole and exclusiveauthority to adopt and maintain its annual budget and finances. Neither the Townof Portsmouth, Town of Middletown, City of Newport, nor any other public body,nor the general public has authority to amend or alter AIPC's budget. AIPC has noobligation to obtain approval regarding its budget from the Town of Portsmouth,Town of Middletown, City of Newport, nor any other public body. According toAIPC's bylaws, "Funds that accrue to the AIPC for its use in furthering its aimsand purposes are controlled, disbursed and accounted for in a manner prescribed bythe members of the AIPC.

As with any nonprofit, AIPC is always working to secure consistent revenuestreams. As a result, AIPC has extensive provisions regarding payment of dues byits members. [] Dues are not mandatory. Regardless of those provisions, themunicipalities have given AIPC annual donations of various sizes over the years.The municipalities have no control over how AIPC expends that donation oncepledged and contributed. As with any nonprofit fonder, the municipalities maywithhold funding and have done so in the past; in such cases, AIPC continues itswork, uninterrupted, using other sources of funding to fund its operations. Themunicipalities have no ability or power to suspend or stay AIPC's actions, either


whole or in part, as would be the case with any municipal board, commission, oragency.

AIPC receives grants, gifts and donations from private foundations, corporationsand individuals in addition to grants from federal, state and local governments. In2016, AIPC will receive the majority of its operating and program funds fromprivate sources, with less than 12% received from municipal sources.

AIPC is not included in the municipalities['] Comprehensive Annual FinancialReport as it is not considered a component unit of the municipalities underapplicable standards of the Government Accounting Standards Board.

AIPC, through its Board and its Directors, is the employer to its employees. Themunicipalities have no authority or control over any individual employed by AIPC.AIPC's employees are not enrolled in, nor are they eligible to [be] enrolled in, theRhode Island Municipal Employees Retirement System. AIPC's employees havebenefits that are obtained and controlled independently by AIPC as a nonprofitcorporation."

The AIPC also submitted the AIPC Bylaws, the AIPC Certificate of Incorporation, and the AIPCArticles of Incorporation.

During the pendency of this request for an advisory opinion, you (Ms. Grieb) filed two complaints,one alleging that the AIPC failed to respond to your APRA requests and one alleging both an OMAviolation and an APRA violation concerning the AIPC's February 14, 2017 meeting. Throughthese complaints, you requested that this Department issue a finding that both the APRA and theOMA are applicable to the AIPC. In support, you state, in pertinent part:

"Incorporation under RIGL [§] 7-6 or establishing a 501(c)(3) IRS t~ code statusdoes not change the fact that AIPC was organized as a joint municipal planningcommission under RIGL [§] 45-22.1 with all the appropriate obligations andpowers conferred upon it by that law. Nor is there any legal basis or evidencepresented by [the AIPC] that such incorporation or t~ status clarification actuallysevers AIPC from that original formation.

***

Board members are appointed only by the Municipal councils and resign to thosemunicipal councils. When new board members are needed the vacancies are eitherannounced at Council meetings and/or advertisements are placed by themunicipalities in local papers or on Town web sites. Applications must besubmitted to the Municipal councils not to AIPC. While AIPC has adopted the habit


of indicating when it likes an applicant, it is still solely the council's decision as towhich applicant is appointed."

We acknowledge receipt of additional correspondence from both Attorney Euer and you, whichshall be discussed below as relevant.

At the outset, we note that in examining whether an entity is subject to the APRA and the OMAwe are mindful that our mandate is not to substitute this Department's independent judgmentconcerning whether an entity falls within the purview of the APRA and the OMA, but instead, tointerpret and enforce the APRA and the OMA as the General Assembly has written this law andas the Rhode Island Supreme Court has interpreted its provisions. Furthermore, our statutorymandate and this advisory opinion are limited to determining whether the AIPC is subject to theAPRA and the OMA. See R.I. Gen. Laws §§ 38-2-8, 42-46-8. In other words, we do not write ona blank slate.

As an initial matter, we note that although we have previously opined on OMA and APRAcomplaints involving the AIPC, see sme ., Grieb v. Aquidneck Island Planning Commission, OM16-06, PR 16-13, we have not had occasion to determine whether the AIPC is a "public body"within the meaning of those statutes because no party raised the issue. Rather, our prior findingsassumed, without deciding, that the AIPC was a "public body" subject to the OMA and the APRA.Because the advisory opinion request and your complaints expressly raise this issue —for the firsttime —determination of this threshold issue represents a novel issue as applied to the AIPC.

The purpose of the OMA is that:

"[i]t is essential to the maintenance of a democratic society that public business beperformed in an open and public manner and that the citizens be advised of andaware of the performance of public officials and the deliberations and decisions thatgo into the making of public policy." R.I. Gen. Laws § 42-46-1.

In order for the OMA to apply, a "quorum" of a "public body" must convene fora "meeting" asthese terms are defined by the OMA. See Fischer v. Zoning Board of the Town of Charlestown,723 A.2d 294 (R.I. 1999). Here, we are solely concerned with the "public body" requirement,which is defined as "any department, agency, commission, committee, board, council, bureau, orauthority or any subdivision thereof of state or municipal government."1 R.I. Gen. Laws § 42-46-2(3). We have previously noted that determining whether a particular entity is a "public body" is

1 You focus on the word "commission," but respectfully, this places form over substance. Instead,we look to, among other things, the function, make-up, and authority of the AIPC. Indeed, recentlythe Rhode Island Supreme Court determined that the Compensation Review Committee was not a"public body" subject to the OMA. See infra.


"a fact-intensive question not subject to ̀ bright line' rules." See Oliveira v. Independent ReviewCommittee, OM 04-10.

The Rhode Island Supreme Court examined this issue in Solas v. Emer encv Hiring Council, 774A.2d 820 (R.I. 2001), which considered the application of the OMA to an entity formed by twoexecutive orders of then-Governor Lincoln Almond to "manage and control the state's hiringpractices and its fiscal resources." The Emergency Hiring Council consisted of five seniorexecutive branch staff members who met on a biweekly basis "to determine whether creating anew position in state government or filling a vacancy is absolutely necessary." Id. at 824. It wasthe Governor's intent that "no person or persons other than the Council shall have the authority tomake any determinations in this regard." Id. (internal quotation omitted). Based on these facts theSupreme Court concluded the Council was subject to the OMA:

"[T]he EHC [Emergency Hiring Council] is composed of a group of high level stateofficials that convenes to discuss and/or act upon matters of great interest to thecitizens of this state. In addition, our reading of the executive orders creating thecouncil persuades us that the EHC possesses significant supervisory and executiveveto power over creating or filling state employment positions. At the very least thecouncil functions in an advisory capacity in state hirings. Whether supervisory oradvisory, both functions are regulated by the act. As the plain language of thestatute provides, a council's exercise of advisory power is enough to bring it underthe act's umbrella." Id. at 825.

The Court in Solas examined the text of the executive orders under which the Emergency HiringCouncil was established, the scope of its stated authority, its actual authority, the nature of thepublic business delegated to it, and its membership and composition. We have found each of thesefactors relevant, to varying degrees, in findings issued by this Department.

For example, in Schmidt v. Ashawav Volunteer Fire Association, OM 98-33, this Departmentexamined whether the Ashaway Volunteer Fire Association ("Fire Association") constituted a"public body" in accordance with the OMA. In reviewing that organization's composition, wenoted that the Fire Association was a "non-business, non profit corporation duly incorporated in1937." In addition, the members of the Fire Association did not receive a salary, medical benefits,or a pension for their services; and the officers were not elected by the public, or appointed by asubdivision of state or municipal government, but instead, were elected by the members of the FireAssociation itself. Based upon these facts, we concluded the Fire Association was not a "publicbody" pursuant to the OMA. See also Lataille v. Primrose Volunteer Fire Association, OM 99-21(noting Fire Association was not a "public body" since Board members are elected by members ofthe Fire Department and do not receive a salary, benefits, or pension).

In Reilly v. Providence Economic Development Partnership, OM 12-07, we concluded that theProvidence Economic Development Partnership ("PEDP") was subject to the OMA because "the


business of the PEDP [was] inextricably intertwined with that of the City of Providence." Amongour considerations in Reilly was that the Mayor of Providence appointed all the board membersand the PEDP was "charged with, among other things, the economic development policy makingfor the City of Providence." Based upon the information provided, we found that "the PEDP is asubdivision of municipal government" and that the PEDP performed "public business" over whichthe public body, the City through its mayor, had supervision, control, jurisdiction, or advisorypower.

The Rhode Island Supreme Court more recently considered this issue in Pontarelli v. Rhode IslandBoard Council on Elementary and Secondary Education, 151 A.3d 301 (R.I. 2016). There, theRhode Island Board Council on Elementary and Secondary Education ("RIDE") created aCompensation Review Committee ("CRC"), which was tasked with reviewing requested andproposed salary adjustments to RIDE employees. Id. at 302-03. The CRC was described as an"̀informal, ad hoc working group with a strictly advisory role' and with no legal status orauthority[,]" and which did not have regular meetings. Id. at 303. The Rhode Island Supreme Courtheld that the CRC was not a public body, stating:

"Unlike the EHC in Solas, the CRC in this case does not meet on a regular basis,nor was the CRC created by an executive order. Instead, the undisputed evidencein this case is that the CRC acted as an informal, strictly advisory committee.Although the CRC was composed of a group of high-level state officials andoperated under a charter, these two factors alone are insufficient to place them intothe ̀ public body' umbrella. Importantly, the CRC's sole function is to advise thecommissioner of RIDE, who in turn has to make a recommendation to the council.At this point in the process, if the commissioner decided to present any proposal tothe council for the council's required approval, the public would have anopportunity to be informed of and object to such proposal." Id. at 308 (emphasisadded).

Here, based on the specific evidence presented, we find that the AIPC is not a "public body" withinthe meaning of the OMA. Our decision is controlled in large part through our precedent. Muchlike the Fire Associations in Schmidt and Lataille, the AIPC is a duly incorporated nonprofitorganization that selects its own leadership, in this instance the Executive Director. Additionally,like the volunteer fire associations, the AIPC establishes its own programs and priorities withoutconsultation, amendment, or review by any municipality. See sme ., R.I. Gen. Laws § 45-22.1-4(c)("The plans and recommendations are advisory and not mandatory for the communities."). Whilethe AIPC does receive some financial support from the various municipalities, among otherentities, we have previously observed "that fact alone does not render them subject to the Act."Schmidt, PR 97-09. Indeed, we note that municipal contributions were a mere eleven percent of


the AIPC's total budget in fiscal year 20162 and that the majority of the AIPC's budget wasobtained from member dues, grants, gifts, and donations. Significantly, the AIPC has the sole andexclusive authority to appropriate and spend its budget. Furthermore, AIPC members receiveemployee benefits from the AIPC itself and do not participate in state or local pension systems.See id. All of these factors evidence that the AIPC, like the volunteer fire districts described supra,is not a "public body" under the OMA.

Furthermore, the AIPC's non-profit status supports this conclusion. It is undisputed that the AIPCwas established in 1985 pursuant to R.I. Gen. Laws § 45-22.1, et ~s However, a closeexamination of the relevant statute reveals that the language used is entirely permissive, notprescriptive. See R.I. Gen. Laws § 45-22.1-2 ("The governing bodies of two (2) or moremunicipalities may, by ordinance or resolution, authorize the establishment * * * of a jointmunicipal planning commission.") (Emphasis added). In other words, the AIPC is not expresslyrequired to be created through statute. Notwithstanding, the AIPC materially changed itsinstitutional nature when it incorporated as anon-profit corporation in 2003. Therefore, therelevant establishing authority is not necessarily R.I. Gen. Laws § 45-22.1 but more recently andeffectively, the Articles of Incorporation established pursuant to Chapter 6 of Title 7. Although theArticles of Incorporation do state that "[t]his corporation shall have all the powers conferred upona corporation organized under the provisions of RI General Laws, Title 45 Ch. 22 [sic]," this phrasedoes not indefinitely tether the AIPC to that statute. Indeed, as amended in 2005, the Articles ofIncorporation make clear that the AIPC "is organized exclusively for charitable and educationalpurposes[,]" including "a forum for communication, coordination and consensus building amongMiddletown, Newport, Portsmouth and Naval Station Newport as well as the state of RI and othercivic, state and federal organizations." Nothing in the Articles of Incorporation could be fairlyconstrued to cast the AIPC as an entity "of state or municipal government." R.I. Gen. Laws § 42-46-2(3).

Moreover, unlike the PEDP in Reilly, the EHC in Solas, and the CRC in Pontarelli, the AIPC doesnot perform delegated public business. Stated differently, the AIPC does not represent a"subdivision thereof of state or municipal government." R.I. Gen. Laws § 42-46-2(3). A reviewof the evidence submitted as well as the AIPC's website3 indicates that AIPC's function is akin tothat of any other private non-profit: a group focused on researching, educating, and collaboratingon issues. The AIPC's previous projects include planning better transportation systems, acampaign to encourage private landowners to install solar panels, support for a green economybond, open space mapping, and advocacy for green infrastructure. While these efforts may involvepartnership with municipal and state government actors, they have not been assigned or delegatedto the AIPC by any governmental entity. Indeed, the AIPC has complete and exclusive control

2 See AIPC 2016 Annual Report (available at http://aquidneckplanning.org/wp-content/uploads/2017/03/AIPC-2016-Annual-Report-online.pd~.3 See http://a~uidneckplannin~or~/.


over its programming and priorities and each of the Aquidneck Island municipalities retains controlover local planning through their respective zoning and/or planning boards. Such an independentposture renders the AIPC separate and apart from any governmental entity and thus outside the"public body" umbrella.4

In your arguments asserting that the AIPC is a "public body" under the OMA, you note that theAIPC Bylaws expressly provide that the "legal basis for the [AIPC] is Rhode Island GeneralLaw[s], Title 45, Chapter 22.1 [.]" You also point out that, per the Bylaws, the members of theAIPC are appointed by each of the three Aquidneck Island municipalities.5 As such, in large part,you rely upon the statutory basis of the AIPC to support the conclusion that the AIPC is a "publicbody." However, for the purpose of determining whether the AIPC is a "public body" under theOMA, the rationale for relying on these particular Bylaws is undermined by Article IX, whichstates that "[t]hese bylaws may be amended by the resolution of the voting members of the AIPCat a regular meeting[.]" The unilateral ability of the AIPC to change any of its Bylaws, includingthe two referenced here, vitiates their diapositive effect. Additionally, as discussed earlier, anyargument that the AIPC exists solely by virtue of Chapter 22.1 of Title 42 is misplaced. See supra.

While it is true that certain provisions suggest a relationship between the AIPC and the underlyingcommunities — a relationship that the AIPC acknowledges —even with the AIPC comprised ofmembers from the underlying communities, for the reasons already detailed, there is no evidencethat the AIPC acts as a "subdivision thereof of state or municipal government." R.I. Gen. Laws §42-46-2(3). The fact that AIPC manages its budget, its Commission, as well as making decisionsand recommendations, all independent of the underlying communities provides ample support forthis conclusion.

4 We observe that the Aquidneck Island municipalities could disband the AIPC if they saw fit.However, this fact is not diapositive to our "public body" analysis as it does not change the otherfactors addressed herein.

5 The members of the AIPC are not limited to the present three municipalities, and, in fact, are notlimited to Rhode Island communities. See R.I. Gen. Laws § 45-22.1-6 ("Wherever a jointmunicipal planning commission has been or is being established to serve the Rhode Island portionof an area, which for planning purposes constitutes a logical planning area and extends beyond theboundaries of the state, the commission may admit to membership counties or municipalities thatare part of the same area but located in other states."). (Emphasis added). This provision —whichallows the AIPC to admit to membership non-Rhode Island communities —supports our conclusionthat the AIPC does not function as a "subdivision thereof of state or municipal government." R.I.Gen. Laws § 42-46-2(3). See also Allen v. ASMFC Lobster Advisory Council and Department ofEnvironmental Mana fe t, OM 98-OS (interstate compact composed of states bordering theAtlantic Ocean not a ̀public body"').

In Re: Aquidneck Island Planning CommissionGrieb v. Aquidneck Island Plannin~CommissionADV OM 17-02OM 17-24PR 17-40

One additional point merits discussion. The Bylaws do provide that the AIPC shall hold allmeetings consistent with the OMA. As discussed supra, content in the unilaterally amendableBylaws are not dispositive to our analysis. But, additionally, the foregoing Bylaw provision doesnothing to address the central OMA issue presented in this case: whether the AIPC is a "publicbody" consistent with R.I. Gen. Laws § 42-46-2(3). This question is answered herein. Moreover,we are aware of no authority, and none has been presented, to support the proposition that thevoluntary adoption of the OMA by anon-public body subjects that entity to the OMA and thisDepartment's jurisdiction. See Sinapi v. University of Rhode Island Student Senate, OM 14-23. Ifthis were the case, any neighborhood association or local group that decided to have their meetingsgoverned by the OMA would fall within this Department's jurisdiction. As we have already noted,we simply find nothing with the OMA, nor have we been directed to such authority, to substantiatesuch a principle.

In sum, based on these specific facts, as well as our precedent, we conclude that the AIPC is not a"public body" under the OMA. As such, with respect to your complaint, we cannot find that theAIPC committed any violations of the OMA.

We turn next to an examination of whether the AIPC is subject to the APRA. The APRA definesa "public body" as:

"any executive, legislative, judicial, regulatory; or administrative body of the state,or any political subdivision thereof; including but not limited to any department,division, agency, commission, board, office, bureau, authority; any school, fire, orwater district. or any other public or private agencyperson, partnership,corporation, or business entity acting on behalf of and/or in place of any publiceta ." R.I. Gen. Laws § 38-2-2(1) (emphasis added).

In Reilly & Olne~ille Neighborhood Association v. Providence Department of Planning andDevelopment and/or Providence Redevelopment AgencX, PR 09-07B, this office considered thescope and interpretation of the last clause of R.I. Gen. Laws § 38-2-2(1) as set forth above. Afterresearching this issue, we were unable to discover a decision from a Rhode Island court thataddressed this clause, and, consequently, we reviewed the plain language of this provision. Indoing so we were struck with the similarity of the above language and the definition of an "agent."

As we explained in Reilly,

"[fJor example, an ̀agent' is defined as:

[̀a] person authorized by another (principal) to act for or in place of him;one entrusted with another's business. One who represents and acts foranother under the contract or relation of agency. A business representative,whose function is to bring about, modify, affect, accept performance of, or


terminate contractual obligations between principal and third persons. Onewho undertakes to transact some business, or to manage some affair, foranother, by the authority and on account of the latter, and to render anaccount of it. One who acts for or in place of another by authority fromhim; a substitute, a deputy, appointed by principal with power to do thethings which principal may do. One who deals not only with things, as doesa servant, but with persons, using his own discretion as to means, andfrequently establishing contractual relations between his principal and thirdpersons.

One authorized to transact all business of principal, or all of principal'sbusiness of some particular kind, or all business at some particular place.'Black's Law Dictionary, p. 63 (6th Edition) (internal citation omitted)(emphases in original).

Similarly, the Restatement (Third) defines agency as "the fiduciaryrelationship that arises when one person (a ̀principal') manifests assent toanother person (an ̀agent') that the agent shall act on the principal's behalfand subject to the principal's control, and the agent manifests assent orotherwise consents so to act.' Restatement (Third) Agency § 1.01.(Emphasis in original).

Having reviewed the above definitions of ̀agency,' we conclude that the last clauseof R.I. Gen. Laws § 38-2-2(1), which states that a ̀ public body' includes anyp̀ublic or private agency, person, partnership, corporation, or business entity actinon behalf of and/or in place of an~public agency,' concerns other persons or entitiesthat enter into an agency-type relationship with a governmental entity. Such aninterpretation is consistent with the plain language set forth in R.I. Gen. Laws § 38-2-2(1)." Reilly & Olneyville Neighborhood Association v. Providence Departmentof Planning and Development and/or Providence Redevelopment A ~encv, PR 09-07B.

In East Ba~Newspapers v. Mt. Hope Trust, PR 10-39, we considered whether the Mt. Hope Trustwas subject to the APRA. The evidence revealed that the Town of Bristol had no control over theMt. Hope Trust and that no funds, employees, or services were shared between the two. AlthoughTown representatives had seats on the Mt. Hope Trust and although the Mt. Hope Trust receivedfunds from the Town, we found that these facts were not dispositive because they did not indicatethat the Trust was "acting on behalf of and/or in place of any public agency." R.I. Gen. Laws § 38-2-2(1). As a separate and independent financial entity, we found that the Mt. Hope trust was notsubject to the APRA.


In In re: Newport Public Library, ADV PR 14-04, we examined whether the Newport PublicLibrary was subject to the APRA. We noted that the Library had the sole and exclusive authorityover its budget and finances and that the City of Newport had no authority to alter or amend thosefinances. Although the City did provide contributions to the Library, including sizable funds, wenoted that the City had no control over how those funds were expended. We also observed that theLibrary was not part of the City's Comprehensive Annual Finance report because it was notconsidered a component of the City under applicable standards of the Government AccountingStandards Board. Based on these facts, we found that the Library was not "acting on behalf ofand/or in place of 'the City, and, accordingly, that the Library was not a "public body" under theAPRA. R.I. Gen. Laws § 38-2-2(1).

Here, you focus your APRA argument, in part, on the language that a "public body" includes "anyother public or private agency, person, partnership, corporation, or business entity acting on behalfof and/or in place of any public agency." R.I. Gen. Laws § 38-2-2(1). In this respect, you contendthat "acting on behalf of does "not mean usurping the decision rights of the body they are actingon behalf of." As described above, however, we have previously determined that the clause youreference does mean that the subject entity is acting in an agency-type relationship to the publicentity and has the authority to bind the public agency. Reilly & Olne~ille NeighborhoodAssociation v. Providence Department of Planning and Development and/or ProvidenceRedevelopment A ency, PR 09-07B. Consistent with this precedent, we find that the AIPC is not"acting on behalf of and/or in place of any government entity and therefore is not subject to theAPRA. R.I. Gen. Laws § 38-2-2(1).

In support, we note that the AIPC has sole and exclusive control over its budget and finances,which are not subject to alteration by any governmental entity. See East Ba.~News~apers, PR 10-39. We also note that, like the Library in In re: Newport Public Library, the AIPC is not part ofany municipality's Comprehensive Annual Finance report because it is not considered acomponent of a municipality under applicable standards of the Government Accounting StandardsBoard. Although the AIPC does receive some funds from municipalities and although AIPCmembers presently come from the Aquidneck Island municipalities, we find that neither of thesefacts is sufficient to find the AIPC is acting on behalf of or in place of that municipality. See EastBay Newspapers, PR 10-39. The evidence presented indicates that the AIPC is a separate andindependent entity without an established agency relationship with any governmental entity. Thisconclusion is supported by your acknowledgment that AIPC has the ability to govern itself andthat the AIPC is "advisory" with "only [] the power to recommend actions to the Council."

You also base your APRA argument on R.I. Gen. Laws § 45-22.1-2, which provides that "[e]veryjoint municipal planning commission shall adopt rules for the transaction of business and keep arecord of its resolutions, transactions, findings, and determinations, which record is a publicrecord." Since R.I. Gen. Laws § 45-22.1-2 references "public record," you submit that this


provision evinces that the AIPC is subject to the APRA.6 Respectfully, whether the AIPC is a"public body" that falls within the ambit of the APRA is a determination subject to R.I. Gen. Laws§ 38-2-2(1), not R.I. Gen. Laws § 45-22.1-2. While we certainly do not mean to suggest that theplain language of R.I. Gen. Laws § 45-22.1-2 is not effective, the fact that some enumeratedrecords may be designated "public records" through R.I. Gen. Laws § 45-22.1-2 in no wayimplicates the provisions of Chapter 2 of Title 38. Rather, R.I. Gen. Laws § 45-22.1-2 representsan independent statutory basis. As such, it has no bearing on our "public body" analysis underR.I. Gen. Laws § 38-2-2(1).

Therefore, for the foregoing reasons, we find that the AIPC is not "acting on behalf and/or in placeof any governmental agency, and, accordingly, find that the AIPC is not subject to the APRA.Since the APRA is not implicated here, we find your allegations of violations of the APRAinapposite. We find no violations.

Although the Attorney General will not file suit in this matter, nothing within the OMA or theAPRA prohibits an individual or entity from obtaining legal counsel for the purpose of institutinginjunctive or declaratory relief in Superior Court. See R.I. Gen. Laws §§ 38-2-8; 42-46-8(c). Weare closing these files as of the date of this correspondence.

Additionally, this advisory opinion is based upon the specific facts as related by the AIPC. If thefacts should differ in any respect, it may affect this Department's interpretation and ultimateopinion regarding whether such action would result in a violation of the OMA or the APRA.

This advisory opinion does not abrogate any rights that the Department of the Attorney General isvested with pursuant to R.I. Gen. Laws §§ 42-46-8 or 38-2-8, and is strictly limited to thisDepartment's interpretation of the OMA and the APRA. This opinion does not address the AIPC'sresponsibilitiesunder any other state law, rule, regulation, or ordinance, nor does it shield the AIPC

6 In making this point, you suggest that the APRA exemptions would not be applicable todocuments maintained by the AIPC. You write:

"RIGL 38-2-2 has specific exemptions that exempt certain logical records frompublic access. RIGL 45-22.1 does not provide for any such exceptions — if it is arecord kept by AIPC under RIGL 45-22.1, it is a public record. * * * RIGL 45-22.1makes a joint planning commission and all its records subject to the Access toPublic Records Act."

Your rationale supports our conclusion that R.I. Gen. Laws § 45-22.1-2 represents an independentstatutory basis apart from the APRA.~ Importantly, our jurisdiction only extends to interpreting the APRA. See R.I. Gen. Laws § 38-2-8(b).


or its members from a complaint filed in the Superior Court by a citizen or entity pursuant to R.I.Gen. Laws §§ 42-46-8, 38-2-8(b).

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

Very truly yours,

Sean LynessSpecial Assistant Attorney General

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