1033 MOU and annual inventory form (Rhode Island - RIEMA)

To Whom It May Concern:

Pursuant to the Rhode Island Access to Public Records Act ("APRA"), I hereby request the following records:

-The current memorandum of agreement (MOA) or memorandum of understanding (MOU) with the Defense Logistics Agency, Disposition Services regarding the 1033 equipment surplus program administered by the DLA Law Enforcement Support Office

-The annual inventory form required to be completed by the state coordinator of the 1033 program

According to the DLA FAQ page regarding the 1033 program, the Adjutant General is the agency in charge of coordinating the 1033 program for Rhode Island. See http://www.dispositionservices.dla.mil/leso/Pages/StateCoordinatorList.aspx

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

Shawn Musgrave

For reference, the Ohio state coordinator released the attached spreadsheet of equipment received via the 1033 program.

Please let me know if I can clarify this request further.

Best,
Shawn

Hello,

Per Mr. Randolph's response, please confirm whether you are the correct points of contact for the 1033 program in Rhode Island.

Best,
Shawn

Hello,

Checking on this once again. I have yet to receive any formal acknowledgement of this request. Please confirm whether you are the appropriate points of contact for my APRA request, or if I ought to submit to another office.

Best,
Shawn

Mr. Randolph -

I have yet to received any reply from the cc'd contacts at the Rhode Island National Guard. Can you confirm whether there is another individual or office I ought to reach out to for this APRA/FOIA request?

Best,
Shawn

SFC Gallagher -

Thank you for your response. The 1033 program explicitly requires an MOA between the federal government and the state of Rhode Island. It also requires the governor of Rhode Island to select a representative to serve as the state coordinator -- the DLA website indicates that the state coordinator is Major General Kevin McBride of the Office of the Adjutant General.

Furthermore, several states have released inventories that are kept at the state level, such as the attached inventory spreadsheet released by the Ohio state coordinator.

Thus I expect that copies of both the MOA as well as the inventory spreadsheet would be considered state records under APRA.

I will also send a FOIA request to the Rhode Island National Guard, but would respectfully ask that you check once again within your agency for copies of the requested documents.

Best,
Shawn

LTC Caruolo -

Sgt. Mezdurian suggested that I get in touch to discuss this request, and whether 1033 records exist at the state level, and thus are requestable under APRA.

As I wrote below to SFC Gallagher (cc'd), I believe that the Adjutant General has copies of the requested MOA and inventory spreadsheet in his capacity as the state coordinator appointed by the governor to oversee the 1033 program administration within Rhode Island. The 1033 program explicitly required the state coordinator to be appointed by the governor of each participating state -- in Rhode Island's case, the governor has appointed the Adjutant General to serve this function. Furthermore, the 1033 program requires a memorandum of agreement between the federal DLA and each participating state to facilitate the transfer of equipment from the Defense Department to state and local law enforcement agencies. It is my understanding that the Adjutant General signed the MOA in this capacity, and as such was acting as a representative of Rhode Island rather than under federal authority.

In light of the above, I have requested a copy of the MOA as well as a copy of the 1033 inventory spreadsheet of all equipment received by Rhode Island law enforcement agencies, which I believe is maintained by the Adjutant General's Office.

Please let me know if I can clarify any of the above.

Best,
Shawn Musgrave
MuckRock

LTC Caruolo -

Please confirm whether the below was received on Friday. I am eager to move forward with this request, and believe that it ought to be processed under the APRA rather than submitted for processing under FOIA, given the nature of the 1033 program to transfer property from the federal to state and local law enforcement.

Best,
Shawn

Mr. Randolph -

As outlined below, representatives of the Rhode Island National Guard fundamentally misinterpret the nature of the 1033 program, and errantly insist that I submit a request under FOIA.

To clarify once again, this is an APRA request duly submitted for records maintained by the Adjutant General and/or his designees in his capacity as the Director of the Rhode Island Emergency Management Agency, a state position. The Adjutant General has the authority to oversee the 1033 program for Rhode Island as an appointee of the governor of Rhode Island, and signed the requested MOA between the state of Rhode Island and the federal Defense Logistics Agency regarding the transfer of equipment in this same capacity on behalf of the state of Rhode Island.

Given the above, it is clear that the state of Rhode Island maintains these records, and can thus release them under APRA. Kindly respond immediately whether this request will proceed in being processed under APRA, or provide a clear response to the contrary so that I may submit a complaint to the Attorney General.

I would note that several other states have released their 1033 inventory spreadsheets without delay or any issue such as this. I would thank you to uphold RIEMA's obligations to transparency by processing this request without further delay.

Respectfully,
Shawn Musgrave
MuckRock

Hello,

Checking on this once again. Respectfully, please abide by your obligations under APRA to provide prompt response to requests for records held by RIEMA.

Please let me know if you have any questions or require further clarification.

Best,
Shawn Musgrave
MuckRock

Mr. Randolph -

It is my understanding that the Adjutant General was appointed as 1033 state coordinator in the capacity of Director of RIEMA. Please correct me if this is not the case.

In any case, the Adjutant General was certainly appointed as a representative of the state of Rhode Island, and not as a federal employee. As such, APRA is the controlling statute in this case. If your interpretation is at odds with this, kindly clarify your reasoning at your earliest convenience. I will be submitting an APRA appeal tomorrow for unreasonable denial if I do not receive a thorough outline as to why FOIA is the controlling statute in this case.

Respectfully,
Shawn Musgrave
MuckRock

Ms. Flax -

Thank you for getting back to me. At the risk of repeating myself, I must emphasize once again that the 1033 state coordinator position is one that is appointed by the governor of Rhode Island. The 1033 state coordinator oversees the transfer of equipment from the federal Department of Defense to state and local law enforcement agencies in Rhode Island, authority the state coordinator has under the appointment of the governor of Rhode Island. Furthermore, the 1033 state coordinator signs the memorandum of agreement with the Defense Logistics Agency on behalf of the state of Rhode Island.

As such, your classification as the requested 1033 documents as solely federal is seemingly at odds with the nature of the program. First, documentation of an agreement between two parties is typically held by both parties. In the case of the 1033 program, one party would certainly be the federal government, but the other party is the state of Rhode Island.

As regards the 1033 inventory spreadsheet, more than 20 states now have released such a spreadsheet. It is my understanding that compiling, maintaining or at the very least reviewing such an inventory spreadsheet is part of the responsibility of the 1033 state coordinator. While this data may have been downloaded from a federal website, if it was downloaded by an agent of the state for official purposes — in this case, the state coordinator exercising authority per governor appointment — by definition it is releasable under APRA.

Given the extensive time and the numerous errant interpretations of APRA that have been thrown up in order to prevent these documents from being released, I must insist on a prompt response from the state of Rhode Island with respect to releasing the MOA and the 1033 inventory. If it is your position that no such documents exist or that they are not releasable under APRA, I respectfully insist that you provide this determination immediately so that I may formally appeal this errant interpretation of the statute.

Respectfully,

Shawn Musgrave
MuckRock

Ms. Flax -

Checking on the below. Please advise.

-Shawn

Ms. Flax and Ms. Caruolo -

Please advise as to the appropriate appeals authority under APRA for this determination. Again, the Adjutant General serves as the 1033 state coordinator as an appointee of the governor, and has signed a number of forms as well as a formal MOA on behalf of the state of Rhode Island. The idea that such data/documents are not obtainable under APRA contradicts the statute's application to records pertaining to Rhode Island government functions.

Please provide the appeal contact information immediately.

Respectfully,

Shawn Musgrave
MuckRock

Jamia McDonald, Executive Director
RIEMA
645 New London Avenue
Cranston, RI 02920

September 17, 2014

Ms. McDonald:

This is an appeal of the determination that RIEMA does not have the requested inventory spreadsheet of equipment received by Rhode Island state and local law enforcement agencies from the 1033 program.

Ms. Flax has provided a copy of the memorandum of agreement between Rhode Island and the Defense Logistics Agency regarding the 1033 program. As state coordinator during his time as the director of the Rhode Island Emergency Management Agency, the Adjutant General oversaw the transfer of equipment from the federal Department of Defense to state and local law enforcement agencies in Rhode Island. The Adjutant General had this authority under the appointment of the governor of Rhode Island.

As such, the determination by Ms. Flax that the requested 1033 data are solely federal is seemingly at odds with the nature of the program as well as responses from more than 30 other states. As of today, a total of 32 states have released a full spreadsheet of agency-by-agency equipment transfers via the 1033 program. It is my understanding that compiling, maintaining or at the very least reviewing such an inventory spreadsheet is part of the responsibility of the 1033 state coordinator. While this data may have been downloaded from a federal website, if it was downloaded by an agent of the state for official purposes — in this case, the state coordinator exercising authority per governor appointment — by definition it is releasable under APRA.

I request that you release any documents within RIEMA possession immediately regarding the 1033 program. I will also file a separate request with the Office of the Governor in light of the recent removal of the Adjutant General as the director of RIEMA. However, this request certainly covers documents compiled, maintained or accessed by the Adjutant General in the previous director position.

Respectfully,

Shawn Musgrave
MuckRock

Ms. McDonald -

To date I have received no confirmation of the appeal below mailed to your attention mid-September. Please confirm whether you received the appeal of this APRA request denial by RIEMA.

Best,
Shawn Musgrave
MuckRock