State of Rhode Island
OFFICE OF THE ATTORNEY GENERAL
150 South Main Street- Providence, Rl 02903
(401) 274-4400 www.riag.ri.gov
Peter F. Neronha
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VIA EMAIL ONLY
July 27, 2023
Kaelyn R. Phelps, Esquire
Re: Pontarelli v. RIDE
Dear Mr. Pontarelli and Attorney Phelps:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Paul Pontarelli (“Complainant”) against the Rhode Island Department of Education (“RIDE”). For the reasons set forth herein, we find that RIDE did not violate the APRA.
The Complainant asserts that RIDE violated the APRA by assessing excessive prepayment in connection with his November 8, 2022 APRA request. The Complainant asserts that RIDE’s itemized cost estimate was not credible and such estimate was a “financial penalty” for the Complainant’s prior legal action against RIDE.
The record reveals that on November 8, 2022, the Complainant submitted an APRA request to RIDE requesting:
“(1) An electronic copy of all pending requests and/or petitions (not including attachments/appendices thereto and with all personally identifiable information redacted) filed by the RI Department of Children, Youth and Families (DCYF) with the Commissioner of Education/RI Department of Education (RIDE) seeking payment and/or reimbursement for the per-pupil special education cost of an individual placed by DCYF in a residential facility (the request encompasses all pending requests/petitions described above, with their respective RIDE-assigned case numbers, including any requests/petitions that are awaiting assignment to a hearing officer, in any type of formal or informal dispute resolution process, in the Commissioner’s hearing process, in abeyance and/or awaiting final decision by the Commissioner); and (2) For all requests and/or petitions filed by DCYF with the Commissioner of Education/RIDE seeking payment and/or reimbursement for the per-pupil special education cost of an individual placed by DCYF in a residential facility which have been withdrawn, administratively dismissed, settled or otherwise closed since June 1, 2021 prior to the rendering of a decision by the Commissioner, an electronic copy of the record documenting the withdrawal, dismissal, settlement or closure of the case (with all personally identifiable information redacted).”
In response to the Complainant’s request, RIDE informed the Complainant that it estimated it would take 10 hours to retrieve, review, and redact the documentation requested. As such, it required of the Complainant a prepayment of $135.00. RIDE informed the Complainant that it could produce the case list of all responsive petitions or requests free of charge, but would require prepayment to process the Complainant’s full request, which sought the actual petitions/records as opposed to a case list.
Over the course of a series of email correspondence, the Complainant objected to RIDE’s cost estimate. He asserted that RIDE had completed prior ARPA requests at no charge. RIDE responded that the instant APRA request required significantly more time to complete than his prior APRA requests and RIDE was therefore entitled to charge a reasonable prepayment.
The Complainant appealed the decision of RIDE’s Public Records Officer to RIDE’s Chief Administrative Officer. RIDE’s Chief Administrative Officer affirmed the estimate that it would take 10 hours to retrieve, review, and redact the documentation requested, thus requiring a prepayment of $135.00 since the first hour is free. The Chief Administrative Officer’s correspondence included an itemized cost estimate. The Complaint to this Office followed.
In response to this Complaint, RIDE provided information regarding its processing of the Complainant’s request, along with a supporting affidavit from RIDE’s Public Records Officer. The Public Records Officer attested that upon receipt of the request, she spent approximately one hour to clarify the scope of the request and identify the records being requested. She then spent another hour reviewing the RIDE legal case tracking spreadsheet in order to identify the status of each DCYF matter filed during the relevant timeframe to determine which matters were responsive to the request. RIDE explained that fulfilling the item #1 of the Complainant’s request required a “thorough search of all of RIDE’s files to retrieve each responsive request and/or petition.” RIDE further explained that some of these documents included amended requests or petitions, which sometimes arrived via e-mail without the RIDE-assigned case number. It took the RIDE Public Records Officer 3.5 hours to search and retrieve the 27 responsive records. Each request and/or petition was approximately 2-3 pages in length and nearly always contained personally identifiable information that required redaction. Based on the RIDE Public Records Officer’s actual review of some of the responsive records and her past experience reviewing similar records, she estimated it would take approximately 2 minutes per page to compete the review and redaction for a total of 2 hours and 45 minutes.
RIDE explained that fulfilling the item #2 of the Complainant’s request would require a full search of RIDE’s electronic and hard files, as well as the RIDE Public Records Officer’s entire email database, however these records were generally not easily identifiable by party name or RIDE- assigned case number. The search and retrieval of the 9 responsive records actually took the RIDE Public Records Officer 1.5 hours to complete. Each record responsive to item #2 is generally 1-2 pages in length and may or may not contain personally identifiable information, so the Public Records Officer estimated that it would take approximately 2 minutes per page to complete the review and redaction for a total of 18 minutes.
Finally, RIDE asserted that the Complainant incorrectly argued that RIDE spent less than one hour responding to his previous APRA requests. RIDE asserted that this was a factually unsupported assumption and irrelevant as the APRA requests varied in type, substance, number, and scope. Moreover, RIDE’s decision to fulfill the Complainant’s requests in the past free of charge does not prevent it from charging a reasonable prepayment estimate now. Finally, RIDE asserted that the Complainant was incorrect to point to DCYF fulfilling his past ARPA request free of charge as the decision to charge a prepayment by one agency has no bearing on another agency.
The Complainant submitted a rebuttal wherein he argued that RIDE’s response did not rebut the facts and evidence listed in his Complaint that refuted the RIDE Public Record Officer’s statement that there have been several changes in the volume, nature, and substance of the documents he had requested since his prior ARPA requests.
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, RIDE’s Public Records Officer provided an affidavit in which she provided an explanation for the basis of her estimate that it would take approximately 10 hours to respond to the Complainant’s request based on her actual review of some of the responsive records and her past experience reviewing similar records. She explained that her search and review of these records would be complicated by the fact that some amended requests or petitions arrived via email, and some did not contain the RIDE-assigned case number or any identifying party names.
The Complainant asserts that RIDE’s cost estimate was not credible largely because RIDE completed the Complainant’s prior APRA requests free of charge and because DCYF completed a purportedly similar APRA request to the request at issue also free of charge. But public agencies have the discretion to choose whether to charge a reasonable prepayment for records requests; APRA provides a floor not a ceiling. See R.I. Gen. Laws § 38-2-4(b). Therefore, whether the same agency or a different agency has chosen to not charge a requester for a prior APRA request does not foreclose an agency’s ability to charge a reasonable prepayment for a different APRA request. The only relevant inquiry is whether RIDE’s prepayment charge related to this instant APRA request was reasonable. Here, RIDE provided a detailed itemized cost estimate and explained how it estimated 10 hours of time for search and review of the requested documents. The Complainant failed to provide specific evidence disputing that the 10-hour prepayment estimate was a reasonable estimate of the time actually required other than pointing to prior APRA requests that were completed free of charge.
“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 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, under the totality of the circumstances, we do not find that RIDE’s estimate violated the APRA.
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.
We thank you for your interest in keeping government open and accountable to the public.
PETER F. NERONHA
By: /s/ Patrick Reynolds
Special Assistant Attorney General