VIA EMAIL ONLY

August 2, 2021
PR 21-23

Hon. Louis P. DiPalma, Senator – District 12

Chairman, Committee on Rules, Government Ethics, and Oversight
Louis_dipalma@yahoo.com, sen-dipalma@rilegislature.gov

Lisa M. Martinelli, Esquire

Executive Counsel, Executive Office of Health and Human Services
lisam.martinelli@ohhs.ri.gov

Re: DiPalma v. Executive Office of Health and Human Services

Dear Senator DiPalma and Attorney Martinelli:

We have completed our investigation into the Access to Public Records Act (“APRA”) complaint
filed by Senator Louis DiPalma (“Complainant”) against the Executive Office of Health and
Human Services (“EOHHS”). For the reasons set forth herein, we find that the EOHHS did not
violate the APRA.

Background

We glean the following background from the record in this case. Beginning in late October 2019,
EOHHS and the Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals
(“BHDDH”) hired the law firm Manatt Phelps and Phillips (“Manatt”) to render legal advice
regarding billing compliance issues at the Eleanor Slater Hospital. Starting in August of 2019,
BHDDH ceased claiming Medicaid federal matching funds for Medicaid eligible patients at
Eleanor Slater Hospital, due to regulatory compliance concerns. Manatt was hired to provide legal
advice to EOHHS and BHDDH on billing and compliance issues at the hospital in order for the
hospital to become compliant and resume participation in federal matching funds. According to
EOHHS, “Manatt’s ‘work product’ was in the form of iterative legal memoranda identifying legal
issues and providing legal recommendations based upon their review of applicable federal law and
regulations.” According to a March 28, 2021 memorandum from the EOHHS Medicaid Program
Director to the Secretary of EOHHS, the issues were resolved, which resulted in permissible billing
retroactive to April 1, 2020.
DiPalma v. Executive Office of Health and Human Services
PR 21-23
Page 2

On April 5, 2021, Complainant, in his capacity as a state senator, sent a letter to EOHHS requesting
that all work product resulting from the engagement of Manatt be submitted to the Senate
Oversight Committee. On April 8, 2021, Attorney Lisa Martinelli, on behalf of EOHHS, responded
to Complainant’s letter stating that EOHHS was invoking its attorney-client privilege with Manatt,
and declined to provide the records. EOHHS did provide the Complainant with a copy of the March
28, 2021 EOHHS memorandum referenced above.

On April 8, 2021, Complainant submitted an APRA request to EOHHS, requesting:

“a copy of all work product(s) resulting from the execution of RLC-4366: Legal
Services-Medicare & Medicaid Expertise to Provide Legal Guidance to the
EOHHS Regarding Coding and Billing at the Eleanor Slater Hospital, which
recently complete [sic] 31 March 2021, for which the Secretariat expended $380K
of taxpayer dollars.”

On April 21, 2021, EOHHS denied Complainant’s APRA request, stating that the requested
records consisted of iterative legal memoranda from outside legal counsel containing attorneys’
theories and opinions relative to the Medicaid and Medicare billing issues at Eleanor Slater
Hospital. EOHHS further stated that the documents contained no segregable portions and were
exempt from disclosure and denied the request under three exemptions:

1. R.I. Gen. Laws § 38-2-2(4)(A)(I)(a), which exempts “records related to a client/attorney

relationship;”

2. R.I. Gen. Laws § 38-2-2(4)(K), which exempts “[p]reliminary drafts, notes, impressions,
memoranda, working papers, and work products;” and

3. R.I. Gen. Laws § 38-2-2(E), which exempts “[a]ny records which would not be available
by law or rule of court to an opposing party in litigation.”

After EOHHS denied the Complainant’s request and did not produce any documents, the
Complaint to this Office followed.

Arguments

The Complainant alleges the EOHHS violated the APRA by improperly denying his April 8, 2021
APRA request, and withholding documents responsive to his request.

The EOHHS submitted a substantive response through Attorney Martinelli. The substantive
response included an affidavit from Attorney Martinelli herself, which states that EOHHS,
BHDDH, and the Governor’s Office maintained an attorney-client relationship with Manatt. The
affidavit notes that the Complainant’s APRA request seeks “work product” generated by Manatt
DiPalma v. Executive Office of Health and Human Services
PR 21-23
Page 3

as legal counsel, and further notes that work product which contains mental impressions of an
attorney or their legal theories receives the highest level of protection and qualifies for absolute
immunity from discovery in litigation.

EOHHS contends that the documents requested were properly withheld under R.I. Gen. Laws §
38-2-2(4)(A)(I)(a), and states that Exemption (A)(I)(a) is the primary reason that EOHHS
withheld the documents requested, because it cannot risk creating a precedent of waiving its
privilege when requested by a third party. EOHHS also states that the documents were also
properly withheld subject to R.I. Gen. Laws §§ 38-2-2(E) and 38-2-2(K). EOHHS provided the
withheld documents to this Office for in camera review.

We acknowledge the Complainant’s rebuttal, which notes that EOHHS is the client in the
client/attorney relationship, and as such may waive attorney-client privilege protections for the
requested documents. Complainant asserts that he has a heightened interest in disclosure due to
his position as Chair of the Senate Committee on Rules, Government Ethics and Oversight, and
states that there is substantial need for disclosure to ensure patients in Rhode Island are provided
with required care.

Relevant Law and Findings

When we examine an APRA complaint, our authority is to determine whether a violation of the
APRA has occurred. See R.I. Gen. Laws § 38-2-8. In doing so, we must begin with the plain
language of the APRA and relevant caselaw interpreting this statute.

The APRA provides that all records maintained by public bodies are subject to public disclosure
unless the document falls within one of the twenty-seven (27) enumerated exemptions. See R.I.
Gen. Laws § 38-2-2(4)(A)-(AA). Because EOHHS asserts that Exemption (A)(I)(a) was the
primary motivation for the denial of Complainant’s APRA request, we begin by reviewing that
exemption. In determining the issues presented by the Complaint, this Office not only analyzed
the legal arguments, but also reviewed each document that was withheld by EOHHS and submitted
for in camera review.

The APRA exempts “[a]ll records relating to a client/attorney relationship.” R.I. Gen. Laws § 38-
2-2(4)(A)(I)(a). By the plain language of the APRA, this provision exempts documents “relating”
to the attorney/client “relationship,” which is broader than documents protected by the
attorney/client privilege. See Providence Journal v. Executive Office of Health and Human
Services, PR 20-01; Harris v. City of Providence, PR 16-33; see also R.I. Gen. Laws § 38-2-
2(4)(E). The Complainant does not dispute EOHHS’s contention that an attorney/client
relationship existed between EOHHS, BHDDH, the Governor’s Office, and Manatt.

The in camera nature of this Office’s review of the relevant documents makes detailed discussion
of the documents’ substantive content inappropriate. However, based on our review of the withheld
documents, all documents withheld were either sent/copied to or generated by EOHHS legal
DiPalma v. Executive Office of Health and Human Services
PR 21-23
Page 4

counsel and/or outside legal counsel and relate to an attorney/client relationship. The documents
consist of legal memoranda in both draft and final forms written by attorneys, correspondence
between attorneys for Manatt and counsel for EOHHS, and communications between EOHHS and
outside legal counsel and State government staff discussing issues related to the subject matter of
Manatt’s legal engagement.

The legal memoranda created by attorneys and drafts thereof clearly constitute attorney work
product that relates to an attorney/client relationship, and are encompassed within Exemption
(A)(I)(a). The emails exchanged between Manatt and EOHHS legal counsel similarly clearly relate
to the attorney/client relationship. Emails and documents written by non-attorney EOHHS staff
were sent or copied to legal counsel and featured editing and comments made by attorneys and/or
addressed issues relevant to Manatt’s legal engagement. These emails included discussions, task
lists, work product, and information from EOHHS staff that can fairly be construed as informing
legal strategy and related to the attorney/client relationship. We also note that the request by its
very nature expressly seeks “work product” created in connection with a legal engagement. As
such, we conclude that all the withheld documents relate to the attorney/client relationship.
Moreover, no reasonably segregable portion is not exempt. See R.I. Gen. Laws § 38-2-3(b).
Accordingly, we conclude that the documents withheld relate to a “client/attorney relationship”
and, thus, it did not violate the APRA to withhold these documents. See R.I. Gen. Laws § 38-2-
2(4)(A)(I)(a). While Complainant is correct that a public body may waive an APRA exemption
and provide public access to documents exempt under the APRA, in this case EOHHS has not
waived its exemption. Since EOHHS has chosen to assert an exemption, our role is to determine
whether the assertion of this exemption was permissible under the APRA.

We acknowledge Complainant’s assertion that he has a heightened interest in these records by

virtue of his position as the Chair of the Rhode Island State Senate’s Committee on Rules,
Government Ethics and Oversight. Under the APRA, however, our sole function is to determine
whether the requested documents should be made available to the public at-large, not specific
persons who assert a heightened interest in a document. If this Office determines that a particular
document is a public record under the APRA, then any person may access or inspect that record
under the APRA. See R.I. Gen. Laws § 38-2-3(a). In other words, the APRA generally focuses on
the nature of the document, not the interest of the person making the request. See Bernard v. Vose,
730 A.2d 30 (R.I. 1999), (holding that petitioner did not have a right, under the APRA, to review
his own parole board files, which contained personal and sensitive information about him, because
once the files were made public to him under the APRA, the files would then be available for
inspection by the general public). For this reason, Complainant’s position on the Senate Committee
on Rules, Government Ethics and Oversight; and his related interest in obtaining the records,
respectfully, cannot factor into our APRA analysis. See, e.g., Harper v. Portsmouth, PR 19-15. Of
course, by virtue of Complainant’s official duties, Complainant may be entitled to access
documents exempt under the APRA, but this access, if any, would be pursuant to other non-APRA
legal authority and is beyond the scope of this finding. Because the documents are exempt from
disclosure pursuant to a particular exemption in the APRA that does not reference the public
interest or involve a balancing test, we have no legal basis to take into consideration the public
interest in the records as Complainant invites this Office to do. See Direct Action for Rights and
Equality v. Gannon, 713 A.2d 218 (R.I. 1998).
DiPalma v. Executive Office of Health and Human Services
PR 21-23
Page 5

For these reasons, we conclude that EOHHS did not violate the APRA when it withheld documents
under R.I. Gen. Laws § 38-2-2(4)(A)(I)(a). We find no violations. 1

Conclusion

Although this Office did not find a violation and will not file suit in this matter, nothing within the
APRA prohibits the Complainant from filing an action in Superior Court seeking injunctive or
declaratory relief. See R.I. Gen Laws § 38-2-8(b).

This Office’s role under the APRA requires us to apply the existing law and determine what
documents must be disclosed. We acknowledge the important transparency interests identified by
the Complainant and remind public bodies that the APRA is a floor and not a ceiling and that in
most cases a public body may, in its discretion, provide access to an exempt document (or portions
thereof) in favor of government transparency, consistent with the spirit of the APRA. Although
this Office encourages public bodies to consider disclosing records even when they are subject to
an exemption, failing to provide access to permissibly exempted documents does not violate the
APRA. We also make no determination regarding whether the Complainant, due to his official
position, may have other means of seeking the subject records outside of the APRA. Please be
advised that we are closing this file as of the date of this letter.

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

Sincerely,

PETER F. NERONHA
ATTORNEY GENERAL

By: /s/ Katherine Connolly Sadeck

Special Assistant Attorney General

1
Because we determine that the documents were exempt under Exemption (A)(I)(a), we need not
address EOHHS’s additional citations of Exemptions (K) or (E).