Background and Arguments

The Complainant asserts that the Governor’s Office violated the APRA by assessing excessive prepayment in connection with his APRA requests. The Complainant asserts that certain aspects of his requests are “not a heavy lift” and should be “easy to locate.”

The record reveals that between December 15 and December 19, 2022, the Complainant submitted the following APRA requests to the Governor’s Office:

·         Request 1

“This is an APRA for emails and documents from the staff or the person of Secretary Saal and or Governor Daniel McKee to (or from) any and all shelter providers or housing/homeless orgs or any other providers of shelter including motels, hotels, apartments, rental homes; or other staffers and/or Department heads pertaining to the Continuum of Care, the Coordinated Entry System, HUD, and the relocation of the people at the homeless encampment in front of the State House (or elsewhere) during the month of December, 2022.”

·         Request 2

“I would like to add the emails of Maryrose Mensah to the two names mentioned in the email, those names being Josh Saal and Daniel McKee. In addition, I think the term CES should be included since it’s meaning is the same as Coordinated Entry System, and COC which means the same as Continuum of Care.”

·         Request 3

“I need the contracts between the State and SureStat Hotel, or the provider getting the rooms at SureStay, or however that works.”

·         Request 4

“I need access to the agreement made between the McKee Administration and Adler, Pollock and Sheehan regarding how much APS is being paid to represent the State in the eviction matter. I don’t need particulars about the elements of the case, I know these are not open to APRA disclosures. I simply need to know how much the state is paying APS and what other considerations, beyond money, are at play.”

In response to this Complaint, the Governor’s Office provided information regarding its processing of these requests, along with a supporting affidavit from a legal administrator. The Governor’s Office explains that staff in the Governor’s Office were sent a copy of these requests and asked to search their computers and files for any responsive documents. “Each Governor’s Office staff member reported back the total number of responsive documents, if any, in their possession, for a total of approximately 740 documents.” According to the Governor’s Office, eight staffers had documents responsive to one or more of Complainant’s requests. The Governor’s Office noted that the first request was particularly broad and resulted in many responsive records.

The Governor’s Office represented to this Office that “[r]esponsive documents vary in length from one page to multi-page documents. Given pending litigation involving the subject of these requests, we anticipate invoking one or more APRA exemptions and, potentially, withholding or redacting numerous documents.”  The Governor’s Office “estimated an average of 5 minutes for the review and potential redaction of each document.” As such, the “review of 740 documents, at an average of 5 minutes per document, will take approximately 62 hours.” As a result, the Complainant was sent a cost estimate of $930 for the search, retrieval and redaction of these documents. The letter to the Complainant providing the cost estimate contained much of this same information explaining the basis for the cost estimate. At the time when the Governor’s Office responded to this Complaint, the Governor’s Office had not received pre-payment from the Complainant.

The Complainant submitted a rebuttal wherein he argued, among other points, that although one of his requests is time consuming according to the Governor’s Office, the other requests are not and he would like to promptly receive documents responsive to the less time-consuming requests.  

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).  Pursuant to the APRA, no costs shall be charged for the first hour of search and retrieval and any requests received within 30 days shall be considered one request. See 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).  As we have previously observed, “estimating the time to search, retrieve, review, and redact documents is an inexact science.” Farinelli v. City of Providence, PR 19-04.

Here, the Complainant submitted four different records requests to the Governor’s Office within a five-day period, all seemingly related to a similar subject matter. The record indicates that the Governor’s Office searched for records responsive to these related requests and provided a single prepayment estimate for completing the requests. Although the Complainant, in his submissions to this Office, indicates that the Governor’s Office should have processed the requests separately because less time may be required to respond to certain of the requests, it does not appear that Complainant expressed such a request to the Governor’s Office prior to filing this Complaint. We also are not aware of a request to the Governor from the Complainant for a detailed itemization of the estimate for each of the individual requests so that he could choose how best to proceed. See R.I. Gen. Laws § 38-2-4(d) (“Upon request, the public body shall provide a detailed itemization of the costs charged for search and retrieval.”).

Under these circumstances where the multiple requests were submitted in a short time period and related to the same general subject matter, we do not find that the approach of the Governor’s Office violated the APRA. We note that the APRA provision that permits a public body to assess payment states that “[f]or purposes of this subsection, multiple requests from any person or entity to the same public body within a thirty (30) day time period shall be considered one request.” R.I. Gen. Laws § 38-2-4(b).

In situations where public bodies can more readily provide access to certain segregable portions of a request that are more readily retrievable, they should endeavor to do so. We are not able to discern on this record whether that would have even been possible in this case where the four requests pertained to a related subject matter and where the Governor’s Office conducted a collective search and indicated that it anticipated withholding or redacting numerous documents. In these particular circumstances, we do not find that it violated the APRA for the Governor’s Office to provide a collective response and prepayment request for these four requests. If the Complainant had requested a separate estimate for each request, the APRA would have required the Governor to prepare those separate estimates under these circumstances, but the record contains no indication that the Complainant made such a request, and in the absence of such a request, the Governor’s Office did not violate the APRA by providing one estimate related to all four related requests.

Conclusion

Although this Office has found no violation, nothing within the APRA prohibits an individual or entity from instituting an action for injunctive or declaratory relief in Superior Court as provided in the APRA.  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, but the Complainant is free to notify this Office if he requests and receives separate prepayment estimates from the Governor’s Office and believes any of those estimates do not comply with the APRA.

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

Sincerely,

PETER F. NERONHA

ATTORNEY GENERAL

By: /s/ Katherine Sadeck

Katherine Sadeck

Assistant Attorney General