VIA EMAIL ONLY

February 23, 2023

J. Rafael Martinez

Michael D. Coleman, Esquire

Dear Mr. Martinez and Attorney Coleman:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. J. Rafael Martinez  (“Complainant”) against the Department of Human Services (“DHS”). For the reasons set forth herein, we find that the DHS did not violate the APRA.

DHS responded to the Complaint by providing a substantive response, including an affidavit from Antonio DaSilva who works for the “Audit and Compliance Unit” of the Rhode Island Division of Information Technology (“DoIT”). Mr. DaSilva’s affidavit attests that he searched the email mailbox of Celia Blue for the search term: “Sarah Pagano” for the period of time between January 1, 2022 and February 18, 2022. He attests that the search “revealed there were 907 items.”[1] DHS notes that the Complainant’s APRA request did not limit the emails being requested by subject matter. DHS represents that given the broad nature of the request, consideration would have to be given to potentially applicable APRA exemptions related to personally identifiable information, reports and statements of strategy or negotiation involving labor negotiations or collective bargaining, preliminary drafts, notes, impressions, memoranda, working papers, work product, and other exceptions. DHS also notes that this is the “38^th of 45 APRA requests” submitted by the Complainant relating to DHS.

The Complainant provided a rebuttal indicating that the search parameters used by DHS were incorrect because “it should have been sara.pagano@dhs.ri.gov and celia.blue@dhs.ri.gov. This would have netted a lower count of emails since they will focus [sic] the direct communication between the parties.” He also asserts that “all emails are public records as indicated R.I. Gen. Laws §38-2-3(b)(e)(g)(h)(i) [sic], the [sic] there should be no cost. Electronic documents can be retrieved within seconds and at most minutes.” The Complainant asserts that “emails cannot be subject to redaction, exclusion or selecting which document to provide.” He contends that “DHS is a public body which has supervision, control, jurisdiction and advisory power as defined in R.I. Gen Laws§38-2.2(3) and is required to retrieve the emails as requested.”

The only remaining question is whether DHS’s cost estimate was reasonable. The undisputed evidence demonstrates that DHS conducted a search through DoIT to locate potentially responsive records. DoIT searched for responsive documents by searching the email mailbox of Celia Blue during the timeframe of January 1, 2022 to February 18, 2022 for the name “Sarah Pagano.” The timeframe searched matches the timeframe identified in the APRA request. In his rebuttal, the Complainant contends that DHS should have searched “sara.pagano@dhs.ri.gov”[2] and “celia.blue@dhs.ri.gov,” as “this would have netted a lower count of emails.” However, the APRA request did not specify that it was only seeking emails between those specific email accounts, but rather was framed as seeking emails from Celia Blue to Sarah Pagano, regardless of the specific email address used. Without that clarification, it is unclear how DHS could have eliminated the possibility that it could maintain responsive emails from Celia Blue to Sarah Pagano that did not use the specific email addresses identified in Complainant’s rebuttal. We have frequently observed that “[i]t is the requester’s responsibility to frame requests with sufficient particularity to … enable the searching agency to determine precisely what records are being requested.” Save the Bay v. Rhode Island Department of Environmental Management, PR 20-62 (quoting Assassination Archives and Research v. Central Intelligence Agency, 720 F. Supp. 217, 219 (D.D.C. 1989)). Here, based on the way the request was framed, we do not find that DHS’s search parameters violated the APRA.

It is undisputed that the search returned 907 items that were potentially responsive to the request and would need to be reviewed to determine whether each item was responsive to the request and, if so, whether it was public in whole or part, i.e., whether redaction was required. DHS estimated that review and potential redaction would take an average of five minutes per item. DHS also identified a number of exemptions that were potentially applicable to the emails.

“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.” Three Boys v. South Kingstown School Department, PR 22-1 (finding estimate of three minutes per page was not unreasonable based on circumstances of that case); Farinelli, PR 19-04. An estimate does not need to be exact, but reasonable. While overestimating may chill requestors from seeking access, underestimating may result in requestors investing in requests that ultimately become unaffordable. If less time is utilized than was estimated, any remaining portion of prepayment should be refunded by the public body to the requestor. Here, under the totality of the circumstances, we do not find that DHS’s estimate violated the APRA.

We do question whether DHS may have been able to better fine tune its estimate by conducting an additional preliminary review of the 907 items to determine more information about the length and content of the emails that may have informed whether each email was likely to take a full five minutes to review and potentially redact. Additionally, in some cases where an initial search identifies a large pool of potentially responsive records but further searching is required in order to identify the records within the pool that are actually responsive to the request, the public body may be able to produce a more accurate cost estimate by providing a two-step prepayment estimate. For example, the public body could first seek prepayment for just identifying which records are actually responsive, and then follow up with a second prepayment estimate for reviewing what would presumably then be a smaller subset of responsive documents. Of course, if the public body takes this approach, it should clearly communicate so to the requestor. In all, we encourage all public bodies to take reasonable steps to best and most accurately communicate an estimate for the production of public documents, and this is particularly important in cases such as this one where an estimate requires a significant financial expenditure. As stated herein, the significant financial estimate in this case is in large part the product of DHS having to examine nearly 1,000 potentially responsive emails to determine whether those emails contain information that may be redacted in accordance with the APRA.

We do not find that DHS’s estimate in this case violated the APRA. To the extent the Complainant would like to make a new APRA request to DHS clarifying that he is only seeking emails to or from certain specific email addresses, or to otherwise narrow the scope of the request to include certain keywords (for instance, regarding a subject-matter), he is free to do so and DHS would be required to provide a prepayment estimate in accordance with the APRA.