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Supreme Court
Direct Action For Rights and Equality                                                           :
                                                                                                    No. 99-22-Appeal.
                                                                                                    No. 99-221-Appeal.
v.                                                                                              :   (PC 95-2474)
Bernard E. Gannon, in his capacity as                                                           :
Chief of Police of the City of Providence                                                       :
Present:  Williams, C.J., Flanders, Goldberg, JJ., and Shea, J.(Ret.)
O P I N I O N
Williams, Chief Justice.   In this case, the plaintiff, Direct Action for Rights and
Equality (DARE or plaintiff), an incorporated, non-profit community action group based
in Providence, Rhode Island, brought an action pursuant to the Access to Public Records
Act, G.L.  1956 chapter  2 of title  38  (APRA), to compel the defendant, Bernard E.
Gannon,1 in his official capacity as Chief of Police of the City of Providence (city or
defendant),  to  produce  various  documents  relating  to  civilian  complaints  of  police
misconduct.2  Both the plaintiff and the defendant appealed the order of the trial justice in
this matter, and those appeals were consolidated for a single disposition by this Court.
We also note that this is the second appeal heard by this Court concerning the current
action.   See Direct Action for Rights and Equality v. Gannon, 713 A.2d 218, 225 (R.I.
1  Bernard Gannon was succeeded as Police Chief by Urbano Prignano, Jr., Richard T.
Sullivan (interim) and Dean Esserman.
2 At oral arguments the city also argued that the trial justice erred in not redacting
addresses and names of complainants’ family members from the requested records.   But
because the city did not preserve this issue for appeal at trial, and did not brief the issue
on appeal, we do not address these matters.
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1998)                                                                                          (DARE  I)  (holding  that  the  city  must  provide  to  DARE  certain  requested
documents with only directly identifying factors redacted, such as the names of the
complainants and officers against whom the complaints were made). The facts pertinent
to the immediate appeal are as follows.
I
Facts and Travel
In a letter dated September 17, 1993, plaintiff requested several documents from
the  city  pursuant  to  the  APRA.     Specifically,  plaintiff  requested  the  following
information:
“a.) Every ‘Providence Police Civilian Complaint report’
(Form 210) filed within the Providence Police Dept. from
1986 to present.
b.) A listing of all findings from investigations that was
[sic]  conducted  by  the  Bureau  of  Internal  Affairs,  in
reference  to  all                                                                             ‘Providence  Police  Civilian  Complaint
reports’ (Form 210) on record from 1986 to present.
c.) All reports made by the ‘Providence Police Department
Hearing officers’ on their decisions from the findings of
investigations conducted in Re: ‘Providence Police Civilian
Complaints’ (Form 210) from 1986 to present.
d.) Reports on all disciplinary action that’s [sic] been taken
as  a  result  of  recommendations  made  by  the  Hearing
Officers Division since 1986 to present.”
On November  28,  1994, Providence City Solicitor Charles Mansolillo  (Mansolillo),
responded to plaintiff by stating that records only existed from 1988 to present and,
further, he refused to produce the records sought in categories (a), (b) and (d), but agreed
to provide the information in category (c) in redacted form.   In response to Mansolillo’s
denial, plaintiff initiated the present action on May 5, 1995.   In its complaint, DARE
sought the production of all four categories of documents, $1,000 in damages pursuant to
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§ 38-2-9, plus costs, statutory interest, attorneys’ fees and any other relief that the court
deemed proper.   Both parties filed cross-motions for summary judgment.   In June 1996,
the  trial  justice  granted  plaintiff’s  motion  in  part  and  denied  defendant’s  motion.
Specifically, he ordered defendant to produce all the requested records in unredacted
form.
The defendant appealed the trial justice’s order to this Court.   On appeal, we
determined that DARE was entitled to get access to the public records in categories (a),
(c) and (d), redacting only the names of the complaining citizens and the police officers
who were the subjects of the complaints.   See DARE I, 713 A.2d at 225.   DARE was not
entitled to the requested records in category (b).   See id.   Furthermore, we remanded the
matter back “to the Superior Court for further proceedings consistent with [our] opinion.”
Id.
In a hearing on remand conducted in Superior Court on December  17,  1998,
DARE requested that fees for reproducing the documents be waived and that the city be
fined and ordered to pay attorneys’ fees.   The trial justice reserved his decision on those
issues for a later date, but ordered defendant to “produce all records that are the subject of
this litigation (1986 to and including the present) to the plaintiff on or before January 8,
1999.”   The defendant then filed a motion requesting that the trial justice reconsider his
order and provide the city with more time to comply because “some 700 closed case files
exist” and it would need additional time to retrieve and redact the relevant information.
Additionally, defendant appealed the trial justice’s order to this Court, stating that:
“The City’s objection was primarily predicated upon the
[o]rder requiring the City to provide copies of records that
the Supreme Court had opined in the instant matter were
unavailable to D.A.R.E.    The  [o]rder as entered clearly
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mandates that the City must provide all records  to  the
[p]laintiff that are the subject of the litigation.   The [o]rder
does not state that these records be provided in redacted
form.  All records means all records.”
This argument was advanced despite a letter from plaintiff’s counsel reaffirming DARE’s
request  for  defendant  to  produce  only                                                       “those  things  that  the  Supreme  Court  has
previously said DARE is entitled to.”
At an emergency conference requested by the city on its motion for stay, this
Court  stated  that  the  trial  justice’s  order  required  defendant  to  produce  only  the
documents that this Court required in DARE I.   Consequently, on January 21, 1999, this
Court issued an order denying defendant’s motion to stay the trial justice’s order.
On  February  11,  1999,  the  parties  were  once  again  before  the  trial  justice.
Besides redacting the names of the complaining witnesses and officers against whom the
complaints were made, defendant redacted the names of witnesses, locations, police
officers on the scene and in some cases, the race of the parties involved in the incidents.
Furthermore, plaintiff expressed concerns that it was not receiving all the records to
which it was entitled.3    Consequently, besides requesting attorneys’ fees and costs,
plaintiff moved that defendant be held in civil contempt.
On May 12, 1999, the trial justice issued a bench decision in which he held that
the city had no authority to redact location, even if the complaining witness lived there,
nor  did  defendant  have  license  to  redact  the  names  of  non-complainant  witnesses,
whether they were police officers or civilians.4   The trial justice determined, however,
3 The plaintiff avers that it only received 275 reports of a possible 700 such reports since
1988.  Further, defendant only produced reports from 1990 to present.
4 The city admitted that it should not have redacted race, the names of the hearing officers
or the names of the attorneys.
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that the city did not intentionally attempt to interfere with the workings of the court, and
thus denied plaintiff’s motion to hold defendant in civil contempt and refused to order a
fine.   Additionally, the trial justice relied on the 1998 amendment to the APRA, which
allowed him to waive the fees to be charged to plaintiff for the cost of retrieval and
redaction of the requested documents because the “information requested is in the public
interest because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial interest
of  the  requester.”    Section                                                                  38-2-4(e),  as  amended  by  P.L.   1998,  ch.   378,   §   1.
Furthermore, the trial justice ordered that defendant pay to plaintiff all attorneys’ fees
incurred after July 20, 1998, the date the general assembly amended § 38-2-9(d) (P.L.
1998, ch. 378, § 1).   In an order dated May 13, 1999, the trial justice ordered defendant
(1) to “produce all records that are the subject of this litigation[, redacting] only the
names of complainants and the officers against whom complaints have been made * * *,”
(2) to bear the costs for production, retrieval and redaction of relevant documents, and (3)
to pay plaintiff reasonable attorneys’ fees and costs incurred by plaintiff from July 20,
1998, through the present.   The defendant immediately filed a notice of appeal in this
Court, as well as a stay of the trial justice’s order, which we denied.
On May 17, 1999, the trial justice heard arguments from the city on why it should
be allowed to redact the Social Security numbers of the complainants and the badge
numbers of the police officers against whom the complaints were made.   Thereafter, he
issued an order allowing defendant to redact the Social Security and badge numbers.  The
plaintiff timely filed notice of a cross-appeal of the trial justice’s decisions.   This Court
granted defendant’s motion to consolidate those appeals on March 29, 2000.
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On appeal, plaintiff argues that                                                               (1)  the trial justice erred in failing to hold
defendant in civil contempt and should have imposed a $1,000 fine pursuant to § 38-2-
9(d); (2) the trial justice should have ordered defendant to pay plaintiff’s attorneys’ fees
from the commencement of this action; and  (3) the trial justice erred in permitting
defendant to redact the Social Security numbers of complainants and badge numbers of
police officers against whom complaints were made.   The defendant argues (1) that the
trial justice erred by applying the 1998 amendments to the APRA in the instant matter,
and (2) that even if they did apply, they did not authorize the trial justice to waive the
costs charged to plaintiff for production and redaction and he should not have awarded
attorneys’ fees because defendant did not commit a knowing and willful violation of the
statute.    We address these arguments below after providing general background on
APRA.
II
The Purpose of the APRA
“A popular Government, without popular information, or the means of acquiring
it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.   Knowledge will forever
govern ignorance:    And a people who mean to be their own Governors, must arm
themselves  with  the  power  which  knowledge  gives.”5    The  Rhode  Island  General
Assembly has effectively codified this philosophy by enacting the APRA and stating that
the purpose of such legislation is as follows:
“The public’s right to access to records pertaining to the
policy  making  responsibilities  of  government  and  the
individual’s  right  to  dignity  and  privacy  are  both
5 Letter from James Madison to William T. Barry (Aug. 4, 1822) (on file with the Library
of America).
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recognized to be principles of the utmost importance in a
free society.   The purpose of this chapter is to facilitate
public access to governmental records which pertain to the
policy  making  functions  of  public  bodies  and/or  are
relevant to the public health, safety, and welfare.   It is also
the  intent  of  this  chapter  to  protect  from  disclosure
information about particular individuals maintained in the
files of public bodies when disclosure would constitute an
unwarranted invasion of personal privacy.”  Section 38-2-1.
Consequently, this Court has long adhered to this purpose and recognized that the
underlying policy of the APRA is the promotion of the free flow and disclosure of
information to the public.   Providence Journal Co. v. Sundlun, 616 A.2d 1131, 1134 (R.I.
1992); Hydron Laboratories, Inc. v. Department of Attorney General, 492 A.2d 135, 137
(R.I. 1985).    Accordingly, in construing the APRA this Court is sensitive to the General
Assembly’s explicitly stated intent provided in § 38-2-1.   See The Rake v. Gorodetsky,
452 A.2d 1144, 1147 (R.I. 1982).
III
The Retroactivity of the 1998 Amendments to the APRA
In  an  effort  to  further  promote  access  to  public  information,  the  General
Assembly promulgated amendments to the APRA in 1998 that (1) allow a trial justice to
“award reasonable attorney fees and costs to the prevailing plaintiff,” § 38-2-9(d), and (2)
grant a trial justice the power to waive “costs charged for search or retrieval if [he or she]
determines that the information requested is in the public interest because it is likely to
contribute  significantly  to  public  understating  of  the  operations  or  activities  of  the
government and is not primarily in the commercial interest of the requester.”  Section 38-
2-4(e).
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The defendant asserts that the trial justice erred in waiving plaintiff’s costs and
awarding it attorneys’ fees because those amendments to the APRA did not go into effect
until after this action began.  We disagree with defendant’s contention.
In Solas v. Emergency Hiring Council of Rhode Island, 774 A.2d 820, 821 (R.I.
2001), the Emergency Hiring Council (EHC) held a closed meeting to consider the hiring
of a hearing officer for the State Building Commission.   After being informed that the
meeting was closed to the public, Gregory Solas  (Solas) filed a complaint alleging
violations of the Open Meetings Act  (OMA), G.L.  1956 chapter  46 of title  42, and
requesting a temporary restraining order to prevent the hiring of the hearing officer until
the applicability of the OMA was resolved.  See id.  The trial justice found that the OMA
did apply to the meeting and permanently enjoined EHC from failing to act in accordance
with the OMA.   See id. at 822.   Furthermore, the trial justice granted Solas’s request for
attorneys’ fees pursuant to § 42-46-8(d).  See id.
On appeal, EHC argued that the trial justice erred in awarding attorneys’ fees
because Solas filed the action in September  1997, and the amendment to the OMA
providing for attorneys’ fees did not become effective until July 20, 1998.  See Solas, 774
A.2d at 825.   This Court found EHC’s argument unpersuasive.   See id.     In making our
decision we relied on the axiom that courts “should apply the law in effect at the time a
decision is rendered even though that law was enacted after the events that gave rise to
the suit * * * [and noted that] ‘a trial court should apply the law in effect at the time it
makes its decision if such application would implement the legislative intent.’”   Id. at
825-26.   Although the amendment providing for the award of reasonable attorneys’ fees
was enacted subsequent to Solas’s filing of his complaint, it became effective before the
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trial justice’s decision.    See id. at                                                         826.    Thus, the trial justice properly applied the
attorneys’ fees provision of the OMA to Solas’s case.  See id.
As in Solas, the attorneys’ fees and waiver of costs provisions in § 38-2-9(d) were
enacted subsequent to DARE’s filing of its complaint but before the trial justice made a
final decision.   Thus, we conclude that there is no discernible difference between the two
situations and hold that the trial justice did not err in applying §§ 38-2-4 and 38-2-9(d) to
the present case.
Although the trial justice properly applied  §  38-2-9(d)6 to the current action,
plaintiff argues that the trial justice should have awarded attorneys’ fees from the time the
action began rather than from the date the amendment went into effect.   We agree with
plaintiff’s contention.
Ordinarily,  this  Court  presumes  that  statutes  and  their  amendments  operate
prospectively unless there is clear, strong language or a necessary implication that the
General Assembly intended to give the statute retroactive effect.   See Pion v. Bess Eaton
Donuts Flour Co., 637 A.2d 367, 371 (R.I. 1994).   When, however, a statute lacks such
clear, strong language or there is no necessary implication concerning its retroactive
application, the distinction between a substantive statute and a remedial, or procedural,
statute becomes important.    See id.                                                           “Substantive statutes, which create, define, or
regulate  substantive  legal  rights,  must  be  applied  prospectively.                        *  *  *  In  contrast,
remedial and procedural statutes, which do not impair or increase substantive rights but
6 We do not address the need for retroactive application of G.L. 1956 § 38-2-4 because
that provision deals with the waiver of costs associated with producing the requested
documents.   The defendant did not actually begin to produce such documents until after
the trial justice’s order issued on December                                                    17,                                                    1998.    Because production of the
documents  did  not  begin  until  well  after  the  enactment  of                              §  38-2-4,  there  are  no
production costs predating the effective date of that provision.
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rather  prescribe  methods  for  enforcing  such  rights,  may  be  construed  to  operate
retroactively.”  Id.
Again, we refer to Solas for guidance.   In Solas, we held that the OMA, which
was  enacted  before  Solas  initiated  his  lawsuit,  was                                         “an  existing  substantive  right
available to the citizens of this state at the time [Solas filed this action].”  Solas, 774 A.2d
at 826.   The attorneys’ fees provision codified in § 42-46-8(d), however, “merely added
an additional remedial measure to that already existing substantive right.”   Solas, 774
A.2d at  826.    Thus, an award of attorneys’ fees from the time the suit began was
appropriate.  Id.
In the case before us, we conclude that, at the time plaintiff brought this action,
the APRA conferred upon the public the substantive right to have access to public
records.  Section 38-2-9(d) merely provides the additional remedial measure of attorneys’
fees to that already existing substantive right.   Therefore, the trial justice should have
ordered defendant to pay attorneys’ fees to plaintiff from May 5, 1995 - the date plaintiff
filed its complaint - to the date of this decision.
IV
Awarding Attorneys’ Fees under § 38-2-9(d)
Alternatively, defendant argues that, even if § 38-2-9(d) applies retrospectively,
the trial justice erred in awarding plaintiff attorneys’ fees because he should not have
made such an award absent a showing of a knowing and willful violation of the APRA.
We disagree.
Section 38-2-9(d) provides in pertinent part:
“The court shall impose a civil fine not exceeding one
thousand dollars ($1,000) against a public body or official
found to have committed a knowing and willful violation of
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this chapter, and shall award reasonable attorney fees and
costs to the prevailing plaintiff.”
The crux of defendant’s argument is that the scienter requirement of § 38-2-9(d) - that
there be a knowing and willful violation of the APRA - is necessary for imposing a civil
fine and for awarding attorneys’ fees and costs to the prevailing plaintiff.  The trial justice
disagreed and determined that the “knowing and willful” language only modified the civil
fine provision rather than the attorneys’ fees provision.7
This Court reviews de novo questions of statutory interpretation.   See Pier House
Inn, Inc. v. 421 Corporation, Inc., 812 A.2d 799, 804 (R.I. 2002).   When a statute is clear
and unambiguous, we adopt its plain and ordinary meaning. See id.   When a statute is
ambiguous, however, “there is room for statutory construction and we examine the statute
in its entirety in order to ‘glean the intent and purpose of the Legislature.’”   State v.
Ceraso, 812 A.2d 829, 834 (R.I. 2002) (quoting RIH Medical Foundation, Inc. v. Nolan,
723 A.2d 1123, 1126 (R.I. 1999)).   In this case, there is patent ambiguity about whether
the                                                                                               “knowing  and  willful”  language  modifies  an  award  of  attorneys’  fees  to  the
“prevailing plaintiff.”   Therefore, we must look to the APRA as a whole to clarify the
requirements of § 38-2-9(d).
Section 38-2-2(6) of the APRA, provides that the term “prevailing plaintiff” is
equivalent to “those persons and entities deemed prevailing parties pursuant to 42 U.S.C.
§ 1988.”   Congress enacted 42 U.S.C. § 1988 in derogation of the “American Rule” that
courts should not award attorneys’ fees absent explicit statutory authority.   Buckhannon
7 The trial justice found that the use of the comma in § 38-2-9(d) indicated that the
General Assembly was expressing two distinct thoughts.   Thus, according to the trial
justice, “the second portion of the sentence, following the comma[], could stand alone,
and if it did so, would clearly not have the requirement of a knowing, willful violation.”
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Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources,
532 U.S. 598, 602, 121 S.Ct. 1835, 1839, 149 L. Ed.2d 855, 861 (2001).  Section 1988 of
42 U.S.C. authorizes courts to award “reasonable attorneys’ fees to prevailing parties in
proceedings in vindication of civil rights.”   Raishevich v. Foster, 247 F.3d 337, 344 (2d
Cir. 2001).                                                                                          “[T]he term ‘prevailing party’ [is] a legal term of art.”  Buckhannon Board &
Care Home, Inc., 532 U.S. at 603, 121 S. Ct. at 1839, 149 L. Ed.2d at 862.   It includes
any “party in whose favor a judgment is rendered, regardless of the amount of damages
awarded * * * [a]lso termed successful party.”  Id. (quoting Black’s Law Dictionary 1145
(7th ed. 1999)).   The bad faith on the part of a defendant is irrelevant in determining
whether to award attorneys’ fees to a prevailing plaintiff.   Christiansburg Garment Co. v.
Equal Employment Opportunity Commission, 434 U.S. 412, 416-17, 98 S. Ct. 694, 698,
54 L. Ed.2d 648, 653 (1978).   Rather, the “prevailing plaintiff” in a civil rights case
ordinarily should receive attorneys’ fees  “‘unless special circumstances would render
such an award unjust.’”   Id.   This is consistent with the policy behind 42 U.S.C. § 1988,
which encourages “the bringing of meritorious civil rights claims which might otherwise
be abandoned because of the financial imperatives surrounding the hiring of competent
counsel.”  Raishevich, 247 F.3d at 344.
Applying the interpretations of 42 U.S.C. § 1988 to § 38-2-9(d), we conclude that
the “knowing and willful” requirement is not a consideration when determining whether a
court should award attorneys’ fees to a prevailing plaintiff.   Rather, that language is only
relevant for determining whether a court should authorize a $1,000 fine against a “public
body  or  official.”    This  interpretation  gives  effect  to  the  legislative  intent  that  a
“prevailing plaintiff” be awarded attorneys’ fees as he or she would under 42 U.S.C. §
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1988 - with the inquiry focusing only on whether the plaintiff is successful, not the
defendant’s subjective intent.    Furthermore, we believe that the General Assembly’s
intent in enacting the APRA would best be served by providing litigants an incentive to
bring meritorious claims when they otherwise may be dissuaded from bringing such
claims based on the costly nature of hiring competent counsel.   If we held that an award
of attorneys’ fees to the prevailing plaintiff depended on the subjective intent of the
defendant, we would discourage the public from bringing such suits and thereby would
ignore the stated purpose behind the APRA.
In this case, it is clear that DARE is a prevailing plaintiff.   It sought and was
entitled to the records from the city.  When the city denied its request, DARE brought this
suit to compel production of the requested documents.   The trial justice and this Court
determined that plaintiff was entitled to these records and, accordingly, the trial justice
ordered defendant to produce them.   Regardless of whether defendant knowingly and
willfully violated the APRA, we hold that the trial justice did not err in awarding DARE
attorneys’ fees under § 38-2-9(d).
V
Willful and Knowing Violation of the APRA under § 38-2-9(d)
DARE further contends that the trial justice should have ordered defendant to pay
the                                                                                               $1,000  civil  fine  authorized  by   §   38-2-9(d)  because  defendant  willfully  and
knowingly violated the APRA.  Our standard of review of a trial justice’s findings of fact
is  deferential,  and  we  will  overturn  such  findings  only  when  the  trial  justice  has
overlooked or misconceived material evidence or if they are clearly wrong.   Samos v. 43
East Realty Corp., 811 A.2d 642, 644 (R.I. 2002).   In this case, we do not find that the
trial justice misconceived or overlooked material evidence or was clearly wrong in
13




determining that defendant did not knowingly or willfully violate the APRA.   DARE
presented no evidence to the trial justice showing that defendant intentionally disregarded
the APRA.  Therefore, DARE is not entitled to the civil fine authorized by § 38-2-9(d).
VI
Civil Contempt
In addition to our determination that the trial justice did not err in declining to
award to DARE the $1,000 fine authorized by § 38-2-9(d), we affirm the trial justice’s
decision not to hold defendant in civil contempt for failing to comply with either this
Court’s or the trial justice’s own order for defendant to produce three of the four
categories of the requested documents.
“A civil contempt proceeding is an appropriate vehicle to enforce compliance
with court orders and decrees when attempting to preserve and enforce the rights of
parties litigant.”   Trahan v. Trahan, 455 A.2d 1307, 1311 (R.I. 1983).   A complaining
party can establish civil contempt on behalf of his opponent when there is clear and
convincing evidence that a lawful decree has been violated.  Id.  Findings of contempt are
within the discretion of the trial justice and this Court will only overturn such findings
where they are clearly wrong.   Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I.
1994).                                                                                        In  this  case,  there  was  no  clear  and  convincing  evidence  that  defendant
intentionally violated either this Court’s decree in DARE I, or the trial justice’s order.
Rather, it is more likely that the orders were misinterpreted to include a wider array of
redactable information that would directly identify the complainant or officer against
whom the complaint was made.  Therefore, we hold that the trial justice did not abuse his
discretion in refusing to find defendant in contempt and we affirm his decision.
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VII
The Cost of Redaction
The defendant argues that the redaction of the names of the complainants and
police officers against whom the complaints were made requires an extraordinary effort
and that DARE should bear the cost of such effort.   In support of its position, defendant
relies on Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1139 (R.I. 1998), in which
we observed that § 38-2-4(a) and (b), require that a party seeking production of public
records pay the costs relating to copying, search and retrieval of such documents.   Based
on those subsections, we determined that the costs of redaction should be borne by the
requesting party because it is part of the process of retrieving and producing the requested
documents.   See id.   In our decision, however, we noted that the General Assembly, by
enacting legislation, could make requested public records available to a requesting party
free of cost.   See id.   Shortly thereafter, the 1998 amendments to the APRA went into
effect.8  The portion of the APRA entitled “Cost” was amended to permit a trial justice to
waive “costs charged for search or retrieval if it determines that the information requested
is  in  the  public  interest  because  it  is  likely  to  contribute  significantly  to  public
understanding of the operations or activities of the government * * *.”  Section 38-2-4(e),
as amended by P.L. 1998, ch. 378, § 1.   Thus, interpreting this amendment in context
with our decision in Rodgers, we conclude that, although the requesting party bears the
cost of redaction as part of the search and retrieval costs, a trial judge has discretion to
8 As we noted above, there is no need to address the retroactive application of § 38-2-4(e)
because production of the requested documents did not begin until after the amendments
went into effect.   Because we apply the law in effect at the time of a decision, the trial
justice properly applied § 38-2-4(e) to this case. See Solas v. Emergency Hiring Council
of Rhode Island, 774 A.2d 820, 825 (R.I. 2001).
15




waive those costs when the request is in the public interest and is likely to contribute to
the public understanding or operation of government.  See § 38-2-4(e).
The question of whether the production by defendant of the requested documents
was in the public interest presented a mixed question of law and fact.   A mixed question
of law and fact is one in which “the rule of law is undisputed, and the issue is whether the
facts satisfy the statutory standard.”   Pullman-Standard v. Swint, 456 U.S. 273, 289n.19,
102 S. Ct. 1781, 1790n.19, 72 L. Ed.2d 66, 80n.19 (1982).   In this case, the rule of law is
clear.  A trial justice may waive costs if the request is in the public interest and is likely to
contribute to the public understanding of government.   See § 38-2-4(e).   The only issue
was whether DARE’s request satisfied the standard of being in the public interest.
Because this Court reviews mixed questions of law and fact with the same amount of
deference that we accord to a trial justice’s findings of fact, we will not overturn a trial
justice’s  findings  of  fact  absent  a  showing  that  the  trial  justice  overlooked  or
misconceived  material  evidence  or  was  otherwise  clearly  wrong.    See  Associated
Builders & Contractors of Rhode Island, Inc. v. Department of Administration, 787 A.2d
1179, 1184 (R.I. 2002).   The defendant has made no showing that the trial justice’s
decision that DARE’s request was in the public interest resulted from his misconceiving
or overlooking evidence or was otherwise clearly wrong.   Therefore, we affirm the trial
justice’s decision to waive the costs of producing the requested records.
VIII
Trial Justice’s Modification of his Order
The plaintiff avers that the trial justice should not have modified his order of May
13, 1999, to allow defendant to redact the Social Security numbers of the complainants
16




and the badge number of the officers against whom the complaints were made.   We
disagree.
Litigants have the option of petitioning a trial justice for a modification of an
order pursuant to Rule 60(b) of the Superior Court Rules of Civil Procedure.   A trial
justice’s decision to modify his own order is entitled to deference and  “‘will not be
disturbed on appeal absent a showing of abuse of discretion or error of law.’”   Zannini v.
Downing Corp., 701 A.2d 1016, 1017 (R.I. 1997) (per curiam).
In this case, defendant did not file a motion to modify pursuant to Rule 60(b).
Nevertheless, on May 17, 1999, the trial justice modified his previous order based on
defendant’s informal request.   Although we prefer that litigants abide by the rules of
court, we decline to overturn the trial justice’s decision to modify based on the absence of
a formal motion to vacate.   To do so would elevate form over substance.   Therefore, we
proceed to determine whether the trial justice abused his discretion in modifying his order
of  May 13, 1999.  We determine that he did not.
The APRA does not provide the press  and the public with  “carte  blanche”
authority to demand all records held by public agencies.  Providence Journal Co. v. Kane,
577 A.2d 661, 663 (R.I. 1990).   Rather, it provides exceptions to the general requirement
of  public  disclosure.    Section                                                             38-2-2(4)(i)(A)(I)  exempts   “[a]ll  records  which  are
identifiable to an individual applicant for benefits, client, patient, student, or employee,
including, but not limited to, personnel, medical treatment, welfare, employment security
* * *.”
In Kane, we held that employee numbers are the kind of record that would
specifically identify an employee, thus exempting them from disclosure.   See Kane, 577
17




A.2d at 665.   In this case, police officer badge numbers are sufficiently similar to the
employee numbers in Kane to be exempt from disclosure under the APRA.  Additionally,
a  Social  Security  number  is  a  unique,  identifying  record  that  the  United  States
government  assigns  to  every  citizen.                                                      Because  we  held  that  the  names  of  the
complainants should be redacted, the trial justice’s exemption of their Social Security
numbers  is  likewise  worthy  of  protection  because  it  can  specifically  identify  an
individual.   Furthermore, this expounds upon this Court’s rulings in DARE I  - that
redactable information should include any information that directly could identify a
complainant or officer against whom a complaint was made.   See DARE I, 713 A.2d at
223.    Finally, we note that the ruling by the trial justice is entirely consistent with
DARE’s original request in this action, which called for the production of certain records
redacting any information directly identifying the complainant or the officer against
whom  the  complaint  was  made.    Therefore,  the  trial  justice  properly  allowed  the
defendant to redact the Social Security numbers and badge numbers from the requested
documents.
Conclusion
The judgment of the Superior Court is affirmed in part and reversed in part.   The
papers in this case are to be remanded to the Superior Court for a hearing to determine
attorneys’ fees pursuant to this decision.
18




Supreme Court
Direct Action For Rights and Equality                                   :
                                                                            No. 99-22-Appeal.
                                                                            No. 99-221-Appeal.
v.                                                                      :   (PC 95-2474)
Bernard E. Gannon, in his capacity as                                   :
Chief of Police of the City of Providence                               :
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.
19




COVER SHEET
TITLE OF CASE:   Direct Action for Rights and Equality v. Bernard E. Gannon,
in his capacity as Chief of Police for the City of Providence.
DOCKET NO:                                                                     1999-22-Appeal/1999-221-Appeal.
COURT:                                                                         Supreme
DATE OPINION FILED:   April 10, 2003
Appeal from
SOURCE OF APPEAL:    Superior                                                  County:  Providence
JUDGE FROM OTHER COURT:                                                        Fortunato, J.
JUSTICES:  Williams, C.J., Flanders, and Goldberg, JJ., Shea, J. (Ret.)
Not Participating
Concurring
Dissenting
WRITTEN BY:      WILLIAMS, CHIEF JUSTICE
Dennis T. Grieco, II/Michael G. Sarli
ATTORNEYS:
For Plaintiff
ATTORNEYS:                                                                     Richard G. Riendeau/Edward C. Roy, Jr.
For Defendant
20

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