VIA EMAIL ONLY

December 20, 2023

Noel Dandy

Peter Nightingale

Rhode Island Housing Justice Organizing Committee

Steven Colantuono, Esquire

Chief Legal Counsel, Rhode Island Public Transit Authority

Dear Mr. Dandy, Mr. Nightingale and Attorney Colantuono:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by the Rhode Island Housing Justice Organizing Committee (“Complainant”) against the Rhode Island Public Transit Authority (“RIPTA”). For the reasons set forth herein, we find that RIPTA did not violate the APRA.

The Complainant requested “all information whatsoever related to the bus pass pilot program mentioned above[1] … [m]ore specifically …:

“1. Any and all communications and documents pertaining to the adopted Rhode Island Public Transportation Authority board motion from any and all members of your organization, its board, and your office;

2. Any and all communications and documents exchanged between members of your organization, your office, and/or the Rhode Island Public Transportation Authority board;

3. Any and all communications or documents pertinent to the bus pass pilot program exchanged between Rhode Island Public Transportation Authority and federal or state organizations that provide services to poor and/or low-income and/or unhoused people;

4. Any and all communications and documents exchanged between your organization with other stakeholders or state, municipal, or federal agencies or entities pertinent to the bus pass pilot program; and

5. Communications requested include, but are not limited to, emails, meeting dates, notes, participants, policy documents, and press releases or drafts thereof.”

On November 7, 2022, in response to the Complainant’s request, RIPTA stated that fulfilling the request would require “searching multiple files and [200] email accounts in several different departments at RIPTA” and that it would take “approximately 100 hours of staff time to properly search each email account … [and] an additional 20 hours” to complete the search and retrieval process as to physical and electronic files. RIPTA assessed a prepayment estimate of “$1,785.00.” In response to the Complainant’s November 21, 2022 appeal, on December 2, 2022, RIPTA affirmed this estimate.[2] The Complainant contends that this estimate was “both excessive and internally inconsistent” and that the estimate was “reverse engineered with the intent of avoiding an appropriate response to [the] APRA request.” Appended to the Complainant’s Complaint was a copy of its initial APRA request, RIPTA’s Response to this request, the Complainant’s subsequent appeal, and RIPTA’s response to the same.

A substantive response to the instant Complaint was submitted on behalf of RIPTA by its Chief Legal Counsel, Attorney Steven Colantuono. As to the Complainant’s allegation that RIPTA’s prepayment estimate was excessive, RIPTA described its process in responding to the Complainant’s request. RIPTA states that in order to respond to the request “as written” it would have to “search the email accounts of all employees” and that doing so would “take approximately thirty minutes … each” for “200 active email accounts.” Because the request also sought “documents,” RIPTA determined that “twenty employees could have documents” that were responsive to the request and that it would take “one hour of time per employee to perform a thorough search of their electronic and physical files” besides email. RIPTA further noted that its estimate did not include potential additional time needed to redact the responsive records. It cited to APRA findings holding that determining a prepayment estimate is an “inexact science” and that the burden is on the requester to “frame requests with sufficient particularity.” Additionally, RIPTA contends that its cost itemization was “straightforward” and in compliance with the statute. Appended to RIPTA’s response were copies of the same records appended to the Complaint, as well as affidavits from Matthew Salisbury, RIPTA’s Executive Director of Information Technology and Networks (“Executive Director”), and Sarah Ingle, RIPTA’s Director of Long-Range Planning (“Director”).

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.

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)).

Additionally, the “[t]ime 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 an 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 requesters from seeking access, underestimating may result in requesters 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 requester.

Here, the relevant inquiry is whether RIPTA’s prepayment charge related to the Complainant’s APRA request was reasonable. Two RIPTA employees provided affidavits explaining the basis of their estimate that it would take approximately 120 hours to respond to the Complainant’s request. The Executive Director attested to the fact that “it would take approximately thirty minutes to properly search each email account.” Further, the Director estimated “the number of employees who could have documents responsive to [the] APRA Request” and “determined that there could be upwards of twenty employees who could have responsive documents in their physical / electronic files.” Based on this determination, RIPTA estimated that it would take “one hour of time per employee” to search these files.

The Complainant contends that RIPTA’s estimate was “reverse engineered with the intent of avoiding an appropriate response to [the] APRA request.” However, the request as drafted did not identify specific individuals or email accounts for RIPTA to search, nor did it describe an explicit category of documents that were being sought as to the Program. Further, the request for communications was unlimited, broadly seeking “[a]ny and all communications and documents” pertinent to the Program relative to “any and all members of [RIPTA],” and inclusive of any “federal or state organizations that provide service to poor and/or low-income and/or unhoused people.”

Based on the record, including the sworn statements of two RIPTA employees knowledgeable as to the subject of the request, it is undisputed that twenty or more employees could maintain physical and electronic records concerning the Program. It is also undisputed that approximately two hundred email accounts would need to be searched, consisting of a thirty-minute search per account. [3] Finally, RIPTA’s prepayment estimate excluded “associated costs to review and redact any responsive records,” which is a cost properly borne by the requester and ultimately rendered the estimate lower than it could have been.[4] See Dare v. Gannon, 819 A.2d 651, 661 (R.I. 2003). This Office has held prepayment estimates provided by public bodies in very similar circumstances to be lawful under the APRA. See Saunders v. Rhode Island Division of Lotteries, PR 15-10 (“[i]n light of the fact that a number of different categories of documents … was requested, we find nothing to suggest that this estimate violated the APRA, nor do you provide any evidence or argument that the amount charged was improper”); see also Three Boys v. South Kingstown School Department, PR 22-1 (“we find that the Department’s interpretation of the requests was reasonable and did not violate the APRA”).

The Complainant failed to provide evidence disputing that the 120-hour prepayment estimate was a reasonable estimate of the time required, besides simply arguing that the estimate was “excessive” and “unreasonable.” Here, based on the totality of the circumstances and on the way the request was framed, we do not find that RIPTA’s estimate violated the APRA.

Additionally, the APRA provides that “the public body shall provide a detailed itemization of the costs charged for search and retrieval.” R.I. Gen. Laws § 38-2-4(d). The Complainant “take[s] issue with RIPTA’s contention that it provided a detailed itemization.” We have reviewed the filings and find no violation here. RIPTA complied with the statute by providing the Complainant with an itemization of costs upon request. The Complainant sought the same via correspondence dated November 21, 2023. In its response dated December 2, 2023, RIPTA provided a description of costs charged and noted that it “provided a detailed itemization to you in its letter of November 7, 2022 [its initial APRA Response].” These same records establish that the substance of this itemization was sufficient, as it included information regarding the number of hours estimated, the types of records that would need to be searched, and the number of employees whose records would need to be searched. While the APRA does not specify precisely what type of information should be included in a detailed itemization, in these circumstances we find that the type of information provided constituted a sufficient break-down to enable a requester to understand the basis of the estimate. Consequently, the cost itemization provided to the Complainant was sufficient. See supra; see also Black v. Bristol County Water Authority. PR 11-25 (“we have reviewed this itemized invoice and find nothing violative of R.I. Gen. Laws § 38-2-4(d)”).

We acknowledge the important transparency interests identified by the Complainant and remind public bodies that the APRA is a floor and not a ceiling and that a public body may, in its discretion, provide access to documents (or portions thereof) without cost, or at a reduced cost, in favor of government transparency, consistent with the spirit of the APRA.