VIA EMAIL ONLY

November 3, 2023

Greg Brailsford

Amy K. D’Alessandro, Esq.

Dear Mr. Brailsford and Attorney D’Alessandro:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Greg Brailsford (“Complainant”) against the Rhode Island Department of Transportation (“DOT”). For the reasons set forth herein, we find that the DOT did not violate the APRA.

The Complainant submitted an APRA request to DOT seeking: “the ten (10) most recent traffic studies performed by the STC of which the purpose was to evaluate whether an existing posted speed limit was appropriate. Please respond with the records in digital form whenever possible.”[1]

In response to the Complainant’s request, DOT informed the Complainant on April 17, 2023 that it estimated it would take 6 hours to search, retrieve, and review the documentation requested. As such, it required a prepayment of $75.00. This amount included 6 hours of search, retrieval, and review time with one hour deducted pursuant to R.I. Gen. Laws § 38-2-8 (providing that the first hour is free). The following day, DOT sent the Complainant a detailed itemization of the time actually spent processing his APRA request. This itemization indicated that 3.5 hours had been spent on search and retrieval of the documents and 2.5 hours spent on legal review and redaction. Pending receipt of the requested payment, DOT did not provide the Complainant with a substantive response to his request.

The Complainant appealed DOT’s prepayment amount. DOT’s Director, Peter Aliviti, Jr., concurred with the prepayment amount. The Complaint to this Office followed.

In his Complaint, the Complainant asserted that the time DOT estimated it would take to fulfill his APRA request was “excessive.” In support of this assertion, he first argued that it was “reasonable to assume that these records exist in digital form” and as such “the time required to locate and compile these records should indeed be minimal.” Second, he argued that DOT erred in including time for legal review and redaction as his APRA request did not request either, nor was it necessary based on the nature of the records requested. Third, he argued that the records requested are of significant public interest and excessive fees can act as a deterrent to access. And fourth, he argued that DOT “failed to substantiate why it would take hours of time to locate such records” and noted that he had been provided an initial estimate and then a response suggesting the work had already been completed.

In response to this Complaint, DOT provided information regarding its processing of the Complainant’s request, along with a supporting affidavit from Managing Engineer Sean Raymond. First, DOT noted that although the responsive documents were digital, they had to be manually reviewed. In his affidavit, Mr. Raymond stated that it took DOT 3.5 hours to review 3 years of meeting minutes to locate the 10 responsive documents and this was a “reasonable amount of time given the number of years and STC meetings covered by [the Complainant’s] request and the fact that the search was done manually, not electronically.” Second, DOT argued that Rhode Island Supreme Court precedent and decisions from this Office have consistently acknowledged that review and redaction are part of the APRA process and the cost should be borne by the requester. Third, DOT argued that the Complainant’s characterization of the prepayment fee as excessive is conclusory and unfounded. And fourth, DOT argued that it did detail the reasons supporting why it took 3.5 hours to conduct the records search and Mr. Raymond attested to it taking that amount of time. DOT also argued that it was not required to send the Complainant any pre-estimate at all, and was permitted to request payment after completing some or all of the required work.

The Complainant submitted a rebuttal wherein he argued that DOT’s admission that it had to conduct a manual review of the responsive documents demonstrated that it uses “inefficient means of cataloging reports and its failure to equip its staff with the proper tools, such as Adobe Acrobat.” Due to this alleged inefficiency, he urged this Office “to limit the billed time RIDOT may assess for records requests that are the result of antiquated search techniques and lack of [free] software for staff to efficiently respond to said requests.”

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).

Here, DOT requested prepayment from the Complainant based on an estimated 6 hours of time needed for search, retrieval, and review. DOT subsequently provided the Complainant with a detailed itemization of the time actually spent processing his request and noted 3.5 hours had been spent on search and retrieval of the documents and 2.5 hours had been spent on legal review and redaction. Managing Engineer Mr. Raymond provided an affidavit in response to this Complaint that confirmed 3.5 hours had been spent on search and retrieval.

The Complainant asserts that the requested prepayment fee was excessive because it “is reasonable to assume that these records exist in digital form” and thus “time required to locate and compile these records should indeed be minimal.” However, Mr. Raymond explained in his affidavit that it took DOT 3.5 hours to search and retrieve the responsive documents. DOT argued that this was a reasonable amount of time because the Complainant’s request required DOT review 3 years’ worth of meeting minutes in order to identify the potentially responsive traffic studies and then pull and review said traffic studies.

The Complainant’s only material rebuttal of DOT’s assertion of reasonableness was to argue that DOT’s manual review of documents demonstrated that it uses “inefficient means of cataloging reports and its failure to equip its staff with the proper tools, such as Adobe Acrobat.” However, we can find no provision in the APRA, and the Complainant has not pointed to any, that requires a public body to obtain certain technologies or to use certain methods to process APRA requests. To be clear, we emphasize that a public body must conduct a reasonable search and retrieval. There could be circumstances when a public body’s failure to use technology that is readily available to it could constitute a failure to conduct a reasonable search or to provide a reasonable payment request. On the particular record before us in this case, we do not find sufficient evidence that DOT failed to provide a reasonable payment assessment.

DOT provided an affidavit attesting that the employee assigned to search the minutes did not have technology to enable an electronic search of the meeting minutes to look for certain keywords. Although the record is not clear on this point, we question whether DOT could have conducted an electronic search either by involving a different employee that possessed the required technology (the record does not indicate which, if any, other DOT employees have this technology or whether they could have assisted in the search) or arranging for the searching employee to have access to Acrobat, which is a widely used technological tool. Nonetheless, the record is undisputed that finding records responsive to the Complainant’s request required searching meeting minutes dating back to 2020. Moreover, although the search may have been more quickly accomplished through an electronic word search for certain keys terms, the manual search performed by DOT was arguably more comprehensive than an electronic word search would have been. Also, DOT provided evidence that the 3.5 hours of search time was not just spent on searching for relevant meeting minutes, but also on searching and retrieving the traffic studies referenced at those meetings, and then further reviewing said studies to confirm they were responsive before forwarding them to the legal office. “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.

Although not dispositive, it is also worth noting that nothing on this record suggests that there was any motive or incentive for DOT to purposefully slow down or make less efficient its search, retrieval, or review process. DOT did not wait for prepayment—it performed the work. Overall, we do not find 3.5 hours to be excessive for all this work. Nonetheless, we urge DOT to be mindful going forward that it utilize whatever technology may be available to it to conduct the most reasonable and efficient searches possible when responding to APRA requests.

The Complainant further asserts that DOT violated the APRA by including time required for legal review and redaction in its prepayment estimate. He argues that neither should be included in the estimate because he did not request them, nor is such review necessary based on the nature of the records requested.

However, 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). This Office has consistently found that review and redaction is a part of the process of reviewing and producing responsive documents, and as such need not be approved or requested by the requester. See Martinez v. Department of Human Services, PR 23- 20; Cianci v. DHS, PR 22-50; Stephen Hoff v. Town of Charlestown, 22-07; Three Boys, PR 22-1. The Complainant has provided no legal basis for this Office to depart from this well-trodden legal path.

Next, the Complainant asserts that “[t]he records requested are of significant public interest” and as such “excessive fees can act as a deterrent to this access.” The APRA provides that “[a] court may reduce or waive the fees for costs charged for search or retrieval if it determines that the information requested is in the public interest[.]” R.I. Gen. Laws § 38-2-4(e). However, there is nothing in the APRA that requires a public body to waive fees and there is nothing in this record indicating that the Complainant sought a waiver from the Court. Although this Office encourages public bodies to consider voluntarily waiving fees when the records sought advance the public interest, failing to do so does not violate the APRA.

The Complainant further points to the fact that DOT initially provided him with a cost estimate and then subsequently provided a more detailed itemization and “suggest[ed] that the work has already been completed.” The APRA authorizes public bodies to assess reasonable costs for completing a request and for public bodies to collect such costs prior to providing a substantive response to the request.  See R.I. Gen. Laws §§ 38-2-4(b); 38-2-7(b).  There is nothing in the APRA that requires a public body to seek and obtain payment before conducting its search and retrieval. See Harris v. City of Providence, PR 17-07 (performing work prior to providing an estimate is not evidence of an APRA violation). Indeed, the fact that the amount requested was based on the actual time spent responding to the request underscores the reasonableness of the cost assessment, and also suggests that the DOT was not using its prepayment estimate as a deterrent in an effort not to fulfill the request.