Opinion
C.A. No. PC 14-4836
11-18-2014
WILLIAM HEIKKINEN Plaintiff, v. PETER KILMARTIN, In his Capacity as Attorney General of the State of Rhode Island, and HUGH T. CLEMENTS, JR., In his Capacity as Chief of the Providence Police Department Defendants.
ATTORNEYS: For Plaintiff: Stephen J. Brouillard, Esq. For Defendant: Lisa A. Pinsonneault, Esq.
DECISION The Plaintiff, William Heikkinen (Plaintiff), has petitioned this Court for a preliminary injunction—pursuant to Super. R. Civ. P. 65—seeking to enjoin Defendants, Peter Kilmartin, in his capacity as Attorney General of the State of Rhode Island, and Hugh T. Clements, Jr., in his capacity as Chief of the City of Providence Police Department (collectively Defendants), from disclosing records related to the investigation of PPD Case Number 201400010430. See Super. R. Civ. P. 65. In opposition, Defendants contend that Plaintiff has not alleged an appropriate underlying cause of action to support such relief.
I
Facts and Travel
On February 3, 2014, Catherine Muldoon (Muldoon) filed a report with the City of Providence Police Department (PPD), alleging that Plaintiff and two other perpetrators sexually assaulted her on November 21, 2013. As a result of Muldoon's allegations, the PPD generated a "Providence Incident Report" (PIR) and began an investigation. The investigation is memorialized in PPD Case Number 2014-00010430 (the Investigation).
The PPD obtained search warrants and seized the cell phone records, email records, and mobile devices belonging to the Plaintiff and other alleged perpetrators. The PPD extracted the data contained within the mobile electronic devices and prepared reports identifying the information (text messages, emails, digital photographs, video recordings, etc.) contained within the mobile electronic devices.
The PPD turned over the results of the Investigation to the Rhode Island Attorney General's Office, which eventually convened a Grand Jury to consider the Investigation and decide whether or not probable cause existed to charge any or all of the alleged perpetrators with criminal wrongdoing. The Grand Jury reported its findings on August 28, 2014. The Grand Jury reported a "no true bill." Thus, no criminal charges have been filed against any of the alleged perpetrators.
Recently, Muldoon submitted a request to the Attorney General's Office—pursuant to the Access to Public Records Act (APRA)—to release to the public the records arising out of the Investigation. On October 1, 2014, the Plaintiff filed this instant motion seeking to enjoin the Defendants from disclosing the aforementioned documents. On October 2, 2014, this Court held a hearing regarding the Plaintiff's motion for a preliminary injunction.
During the hearing, the parties agreed that the Grand Jury transcripts were exempt under Superior Court Rules of Criminal Procedure 6(e) (Rule 6), and the contents of the cell phones belonging to the three suspects were exempt under G.L. 1956 § 38-2-2(4)(D)(a) and (c) of the APRA. See § 38-2-2(4)(D)(a), (c); Rule 6(e)(2). Furthermore, the Plaintiff had no objection to the release of numerous copies of newspaper articles, a DVD containing the contents of Muldoon's cell phone records, certain credit card information pertaining to her credit card, and her medical records. The parties disagree as to the status of two summaries written by the PPD which detail conversations police officers had with witnesses, a PPD incident report which contained photocopies of photographs taken during the search pursuant to a search warrant (the PIR), and emails concerning the case which were exchanged between the Attorney General's Office and the PPD. During the hearing on October 2, 2014, the Plaintiff renewed his objection for the disclosure of the disputed documents.
II
Standard of Review
Deciding on a preliminary or temporary injunction requires a delicate balancing of several factors. Before a trial court will exercise its discretion to issue an injunction, the moving party must affirmatively demonstrate that it (1) has a reasonable likelihood of success on the merits, (2) will suffer irreparable harm without the requested injunctive relief and has no adequate remedy available at law, (3) has the balance of the equities, including the possible hardships to each party and to the public interest if an injunction were to be granted, tip in its favor, and (4) has shown that the issuance of a preliminary injunction will preserve the status quo. Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999) (citing Fund for Cmty. Progress v. United Way of Se. New England, 695 A.2d 517, 521 (R.I. 1997)); see Super. R. Civ. P. 65; Freitas v. Cruso, 868 A.2d 45, 45 n.3 (R.I. 2005).
"Parties seeking such relief must establish first that there is a likelihood of success on the merits of the underlying complaint . . . ." King v. Grand Chapter of Rhode Island Order of E. Star, 919 A.2d 991, 1000 (R.I. 2007) (citing Giacomini v. Bevilacqua, 118 R.I. 63, 65, 372 A.2d 66, 67 (1977)).
III
Analysis
A
Super. R. Crim. P. 6
The parties disagree as to whether Rule 6(e)(2) bars the Defendants from disclosing any evidence that was gathered pursuant to the Investigation and was later presented to the Grand Jury. Plaintiff asserts that Rule 6 prohibits the Defendants from releasing the details of the Investigation. More specifically, Plaintiff presumes that since most of the evidence collected as part of the Investigation was presented to the Grand Jury, Rule 6 bars the Defendants from releasing the information. Conversely, Defendants assert that Plaintiff misconstrues the breadth of Rule 6(e)(2)'s general rule of Grand Jury secrecy. Rather, Defendants allege the scope of Rule 6 reaches only the internal deliberations of the Grand Jury.
Rule 6(e)(2) states in pertinent part:
"General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the State, or any person to whom disclosure is made under paragraph (e)(3)(A)(ii) shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. A knowing violation of Rule 6 may be punished as a contempt of court." Rule 6(e)(2).In In re Doe, the Rhode Island Supreme Court addressed the issue of whether providing notice to the target of a Grand Jury investigation undermined the secrecy of the Grand Jury proceedings. In re Doe, 717 A.2d 1129, 1131 (R.I. 1998). Although the Court did not rule directly on the issue therein, it set forth a framework in which to analyze the disclosure of Grand Jury material.
In its analysis, the Court held that "whenever a reviewing court is asked to determine whether a specific disclosure impermissibly pierces this veil of secrecy, that court must examine not only the need for and the character of the material sought but also the effect such disclosure would have on policies underlying grand jury secrecy." Id. at 1134. These policy considerations include:
"(1) preventing the escape of those whose indictment may be contemplated, (2) ensuring the grand jurors the utmost freedom in their deliberations and preventing a defendant or target of an investigation from importuning them, (3) preventing the subornation of perjury and other witness tampering, (4) encouraging the free and untrammeled disclosure of relevant information, and (5) protecting the innocent defendant or target exonerated by the investigation from public disclosure of the fact that he or she was under investigation." Id. at 1134; see In re Grand Jury Investigation No. 78-184 , 642 F.2d 1184, 1191 (9th Cir. 1981).However, the Court "cautioned that the secrecy extended to grand jury proceedings is not absolute. 'There is no per se rule against disclosure of any and all information which has reached the grand jury chambers.'" Id. at 1134 (citing Senate of the Commonwealth of Puerto Rico v. U. S. Dep't of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987)).
The Rhode Island Supreme Court has not directly addressed whether the disclosure of evidence gathered pursuant to a criminal investigation—which was later presented to a Grand Jury—violates Rule 6(e). See In re Doe, 717 A.2d at 1131 (holding that affording the target of a Grand Jury investigation notice and opportunity to object to the investigation of his medical records did not violate Rule 6(e)); State v. Franco, 750 A.2d 415, 419 (R.I. 2000) (finding that Grand Jury's use of taped testimony given to predecessor Grand Jury did not violate general rule of secrecy for Grand Jury matters). However, Rule 6(e)(2) is analogous to Fed. R. Crim. P. 6."Thus, this Court may properly look to a federal court interpretation of the analogous federal rule for guidance in applying our own state's rule." Furtado v. Laferriere, 839 A.2d 533, 540 (R.I. 2004); see Astro-Med, Inc. v. R. Moroz, Ltd., 811 A.2d 1154, 1156 (R.I. 2002).
See Super. R. Crim. P. 6(e); accord Fed. R. Crim. P. 6(e).
In Senate of Puerto Rico, the Puerto Rican Senate—pursuant to the Freedom of Information Act (FOIA)—"sought disclosure of records in possession of [the] Department of Justice regarding 1978 killings of two Puerto Rican political activists." 823 F.2d at 574. "Relying on the incorporation of Rule 6(e) . . . the DOJ contended that 'all grand jury transcripts and exhibits are exempt from mandatory disclosure.'" Id. at 582. Specifically, the DOJ claimed that any document which was used as a Grand Jury exhibit should be exempt from disclosure. Id.
The First Circuit, in permitting the release of said records, held that "we have never embraced a reading of Rule 6(e) so literal as to draw 'a veil of secrecy . . . over all matters occurring in the world that happen to be investigated by a grand jury.'" Id. (citing SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)). The court further stated:
"[T]he touchstone is whether disclosure would 'tend to reveal some secret aspect of the grand jury's investigation' such matters as 'the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.' The disclosure of information ' coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury' is not prohibited." Id. (citing Fund for Constitutional Gov't v. Nat'l Archives and Records Serv., 656 F.2d 856, 870 (D.C. Cir. 1981)).The First Circuit thus held that Rule 6(e) is only designed to protect the "inner workings of the grand jury." Senate of Puerto Rico, 823 F.2d at 583.
This Court finds the First Circuit's reasoning persuasive and agrees that "sealing all that a grand jury sees or hears would enable the government to shield any information from public view indefinitely by the simple expedient of presenting it to the Grand Jury." Id. at 582. Here, the Defendants are seeking to disclose evidence gathered pursuant to a criminal investigation. The fact that certain copies of this evidence may have been presented to the Grand Jury will not automatically bar its disclosure. None of the evidence—police reports and photographs—threatens to reveal some "secret aspect of the grand jury's investigation." Id.; see Fund for Constitutional Gov't, 656 F.2d at 870 ("The disclosure of information 'coincidentally before the grand jury [which can] be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury' is not prohibited."). This Court, therefore, finds that the Plaintiff has failed to "establish . . . that there is a likelihood of success on the merits of the underlying complaint" because the evidence they seek to shield does not fall under the protection of Rule 6(e). King, 919 A.2d at 1000.
B
Access to Public Records Act
Plaintiff alleges that the Defendants should be enjoined from releasing the records related to the Investigation because they are not "public records" as defined in the APRA. See § 38-2-2(4). More specifically, Plaintiff focuses his argument on § 38-2-2(4)(D)(a) and (c) and contends that the records "could reasonably be expected to interfere with investigations of criminal activity or with enforcement proceedings" and "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Sec. 38-2-2(4)(D)(a),(c). In response, Defendants contend that the APRA does not provide a cause of action to compel nondisclosure. Accordingly, Defendants note that Plaintiff cannot obtain a preliminary injunction because there is not an underlying cause of action.
The Rhode Island Supreme Court has clearly stated that the APRA "is directed solely toward requiring disclosure by public agencies and does not provide a reverse remedy to prevent disclosure." R.I. Fed'n of Teachers, AFT, AFL-CIO v. Sundlun, 595 A.2d 799, 803 (R.I. 1991); see Robinson v. Malinoff, 770 A.2d 873, 877 (R.I. 2001) (holding that Plaintiff would not have had standing to enjoin the City of Newport from releasing records on the basis of the APRA); Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (holding that "FOIA did not provide a remedy for 'reverse-FOIA' suits [.]"). Put another way, the APRA is exclusively a disclosure statute and does not provide a remedy for one who seeks to prevent disclosure. R.I. Fed'n of Teachers, 595 A.2d at 803. Here, the Plaintiff seeks to prevent disclosure pursuant to the APRA. Accordingly, Plaintiff cannot demonstrate "that there is a likelihood of success on the merits of the underlying complaint" because the APRA does not provide a cause of action to prevent disclosure. King, 919 A.2d at 1000.
C
Declaratory Judgment
Plaintiff seeks to prevent disclosure by bringing a preliminary injunction action based upon the APRA. However, as previously discussed, the APRA does not provide a cause of action to prevent disclosure, and thus, a preliminary injunction action is not procedurally proper. R.I. Fed'n of Teachers, 595 A.2d at 803.
The D.C. Circuit addressed this exact issue with respect to the FOIA. The FOIA is analogous to the APRA and similarly "provides for actions requiring disclosure but not actions to prevent disclosure of documents . . . ." Sears, Roebuck & Co. v. Gen. Servs. Admin., 553 F.2d 1378, 1381 (D.C. Cir. 1977). In Sears, Roebuck & Co., the plaintiff brought a declaratory judgment action to prevent the government from disclosing certain documents that were requested pursuant to the FOIA. The D.C. Circuit noted that such cases have come to be known as "reverse freedom of information case[s]." Id. at 1380. The Court further noted that "the 'actual controversy' here is whether the records sought are exempt from disclosure under the FOIA, and that Sears has a right to a declaratory judgment on this issue." Id. at 1381. The Court held that a declaratory judgment action was the appropriate vehicle to preclude disclosure. Id.
D
A Preliminary Injunction is Not an Independent Cause of Action
"An injunction is a remedy, not a cause of action." Long v. Dell, Inc., 93 A.3d 988, 1004 (R.I. 2014); see Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The "merits of the underlying causes of action are separate from the relief of a preliminary injunction because a plaintiff must demonstrate a likelihood of success on the merits of the underlying causes of action to prevail in a motion for a preliminary injunction." Meridian Mut. Ins. Co. v. Meridian Ins. Grp., 128 F.3d 1111, 1119 (7th Cir. 1997). Accordingly, "a preliminary injunction is a remedy that is available upon the showing of certain well defined requirements." Hanover Ins. Grp. v. Singles Roofing Co., 2012 WL 2368328, at *8 (N.D. Ill. June 21, 2012)
Here, Plaintiff has failed to demonstrate a likelihood of success on the merits of the underlying causes of action because Rule 6(e) does not apply to the documents in question and the APRA does not provide for a cause of action to prevent disclosure. Furthermore, Plaintiff has not brought any additional underlying causes of action to support a preliminary injunction action. Accordingly, because the Plaintiff has failed to state a valid cause of action for permanent relief, this Court cannot entertain his motion for a preliminary injunction. Long, 93 A.3d at 1004.
IV
Conclusion
After careful consideration of the arguments presented by the parties in this case, this Court finds that Plaintiff has not met his burden in satisfying the prerequisites for a preliminary injunction. Accordingly, this Court denies the Plaintiff's motion for a preliminary injunction.
ATTORNEYS:
For Plaintiff:
Stephen J. Brouillard, Esq.
For Defendant:
Lisa A. Pinsonneault, Esq. Malena Lopez Mora, Esq. Michael W. Field, Esq.