Background

The Complainant submitted an APRA request to the Department on June 17, 2021, asking that they provide: “all email communication between Linda Savastano and Stephanie Canter, Jacy Northup, Emily Cummiskey, Brian Nelson, and Sarah Markey from April 5th, 2021 to April 9th, 2021.”

On July 3, 2021, the Department responded with an estimate that it would “take 4.3 hours to retrieve, redact and compile the requested School Department documents.” Using a fifteen dollar per hour search and retrieval fee “pursuant to R.I. Gen. Laws § 38-2-4 (b),” the Department provided a prepayment assessment of sixty-four dollars and fifty cents (“4.3 x $15.00 = $64.50”). (emphasis in original).

Following the Department’s response, the Complainant filed a separate APRA request on July 8, 2021 seeking “all email communications between Linda Savastano and Stephanie Canter from April 5th, 2021 to April 9th 2021.” On July 20, 2021, the Department estimated that it would take “7 hours to retrieve, redact and compile the requested School Department documents.” (Emphasis in original). Utilizing the same calculation method outlined in its July 3, 2021 response, the Department assessed a prepayment cost to the Complainant of “$105.00” (“7 x $15.00”). (Emphasis in original).

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 “[a] reasonable charge may be made for the search or retrieval of documents” and expressly allows the responding public body to require prepayment for “costs properly charged.” R.I. Gen. Laws § § 38-2-4(b); 38-2-7(b). After the first free hour, the hourly costs for search and retrieval shall not exceed fifteen dollars ($15) per hour. R.I. Gen. Laws §§ 38-2-4(b)­. The Rhode Island Supreme Court has made clear that in addition to the time to search and retrieve responsive records, 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.” DARE v. Gannon, 819 A.2d 651, 661 (R.I. 2003); see also Marcello v. Town of Scituate, PR 20-09 (holding the Town’s request for prepayment “for search, retrieval, and processing . . .” did not violate the APRA).

Based on the record before us, we do not find that the Department’s three estimates to gather, review, and/or redact the requested documents ($64.50 on July 3, 2021, $105.00 on July 20, 2021 and $540.00 on July 20, 2021, respectively) violated the APRA. The Department makes uncontested assertions that the responsive emails needed to be reviewed due to the sensitive nature of their content. The Department states that because the responsive emails pertain to school employees, these emails “may contain information which is protected from disclosure under the Family Educational Rights and Privacy Act of 1972 and / or the Individuals with Disabilities Education Act.” Information that is deemed non-public by federal statute is also non-public under the APRA and may not be publicly produced in response to such a request. See R.I. Gen. Laws § 38-2-2(4)(S), which exempts from disclosure “[r]ecords, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law or rule of court.”

The Department further explains that a portion of the responsive emails are related to the COVID-19 pandemic and as such may contain “private health information (which) was being shared amongst school personnel.” Additionally, at the time of the Complainant’s requests, the Department had been impacted by a “data leak” implicating student information and was also a party to litigation “concerning the appropriate treatment of records requests pursuant to APRA.” These uncontested assertions demonstrate a particular reasonable need for appropriate scrutiny in reviewing these responsive documents. Additionally, the Complainant does not specifically take issue with the three-minute per page estimate for review time.

In DARE, the Supreme Court held that a cost estimate may include efforts that are intrinsic to the process of retrieving and producing the requested documents. See DARE, 819 A.2d at 661 (“costs of redaction should be borne by the requesting party because it is part of the process for retrieving and producing the requested documents”). As previously noted, “estimating the time to search, retrieve, review, and redact documents is an inexact science.” Farinelli v. City of Providence, PR 19-04; see also Szerlag v. Town of East Greenwich, PR 18-36 (noting that a public body’s estimate need not be exact but must be reasonable based on the totality of the facts). Time associated with the review process is “subject to a host of variables” and there are “inherent challenges associated with providing a reasonable prepayment estimate.” Farinelli, PR 19-04. An estimate does not need to be exact, but reasonable. If less time is utilized than was estimated, any remaining portion of prepayment should be refunded by the public body to the requester.

This dispute is in part based upon differing interpretations of the Complainant’s requests. The Complainant states that after originally being charged “$64.50 for the communication of 5 individuals” the Complainant decided to “re-request the people individually,” expecting the communications of two individuals to result in a lower cost than the communications of five individuals. However, when the Department reviewed this initial request (for “all email communications between Linda and Stephanie Canter, Jacy Northup, Emily Cummiskey, Brian Nelson, and Sarah Markey”), based upon the language of the request, the Department believed that the Complainant sought emails that included all of those named individuals together in an email (as opposed to each separate communication involving each of the five listed individuals). When the Complainant later sought emails between “Linda Savastano and Stephanie Canter” and “Linda Savastano and Brian Nelson,” the Department interpreted these requests by their plain meaning. It is understandable that emails between two individuals at the Department would be more numerous in volume than emails that include all five specified individuals on one email, which in turn resulted in the increased estimates.

Conclusion

Although the Attorney General has not found a violation and will not file suit in this matter, nothing within the APRA prohibits an individual from instituting an action for injunctive or declaratory relief in Superior Court. See R.I. Gen. Laws § 38-2-8(b). 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/ Adam D. Roach

Adam D. Roach

Special Assistant Attorney General