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
August 31, 2023
Amy K. D’Alessandro, Esquire
Deputy Chief of Legal Services, Rhode Island Department of Transportation
Dear Mr. Pahigian and Attorney D’Alessandro:
We have completed our investigation into the Access to Public Records Act (“APRA”) Complaint filed by Mr. Jamie Pahigian (“Complainant”) against the Rhode Island Department of Transportation (“RIDOT”). For the reasons set forth herein, we find that the RIDOT did not violate the APRA.
On February 1, 2023, the Complainant submitted an APRA request to RIDOT seeking:
“all accidents occurring within the city of Providence from 1/1/2007 through 12/31/2022 involving collisions between:
· motor vehicles and pedestrians
· motor vehicles and persons on bicycles, scooters, wheel chairs and other personal mobility devices.
Requested data exclude personal identifying information, but include location information (e.g. GPS coordinates and/or street address, names of cross streets, etc.) and basic description of parties involved (e.g. ‘pedestrian’ or ‘cyclist.’) (sic).”
RIDOT responded to the Complainant’s APRA request on February 16, 2023, denying the request and stating that “[c]rash data is not a public record pursuant to R.I.G.L § 38-2-2(4)(E) and § 38-2-2(4)(S).” They also noted that “[f]ederal law prohibits the discovery of crash data in litigation.” (citing Pierce County v. Guillen, 537 U.S. 129 (2003)).
Dissatisfied with RIDOT’s response, the Complainant filed a Complaint with this Office. The Complainant argues that, as an initial matter, he received his response “beyond what I understand to be the ten-day [timeframe to respond].” He further challenges RIDOT’s denial in-full of his request.
RIDOT submitted a substantive response through its Deputy Chief of Legal Services, Amy K. D’Alessandro, Esquire. RIDOT first argues that its response to the APRA request was timely because it received the request “on February 2, 2023” due to the fact that the Complainant submitted his request “electronically at 6:16 pm on February 1, 2023” (emphasis in original). Because 6:16 pm is after business hours, RIDOT avers that it acted properly in treating February 2, 2023 as its date of receipt. Therefore, its February 16, 2023 response was timely.
As to the denial of the requested records, RIDOT again cites to R.I. Gen Laws § 38-2-2(4)(E) and § 38-2-2(4)(S), “which declare non-public any records that would not be available by law to an opposing party during litigation and records required to be kept confidential.” The agency cites to federal law, specifically “Title 23, §407 of the U.S. Code” which renders crash data not subject to public disclosure. Because the data sought by the Complainant is the same kind of data that is covered by the federal statute, RIDOT asserts that it is exempt from public disclosure under the APRA. RIDOT further references Pierce County v. Guillen, wherein the United States Supreme Court held that “historical accident reports and data held by the county agencies relating to a traffic intersection involving a fatal accident” were properly exempted from public disclosure under 23 U.S.C §407 when they were the subject of a public records request in the State of Washington. See Pierce County v. Guillen, 537 U.S. 129 (2003).
We acknowledge Complainant’s rebuttal. The Complainant argues that because he is not seeking the subject records for litigation purposes, the exemptions cited by RIDOT are inapplicable to his request. Additionally, he argues that RIDOT has discretion to provide the records to him, and that because the component parts of the records he is seeking are publicly available through other public bodies, the consolidated records that he is seeking from RIDOT should be public as well.
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 states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or copy such records. See R.I. Gen. Laws § 38-2-3(a). A public body has ten (10) business days to respond in some capacity to a records request, whether by producing responsive documents, denying the request with reason(s), or providing an explanation as to why an extension of the period to respond is necessary. See R.I. Gen. Laws § 38-2-3(e). If no response is sent within ten (10) business days, the lack of response will be deemed a denial. See R.I. Gen. Laws § 38-2-7(b). “Except for good cause shown, any reason not specifically set forth in the denial shall be deemed waived by the public body.” R.I. Gen. Laws § 38-2-7(a).
Here, it is undisputed that the Complainant submitted his request to RIDOT at 6:16 pm on February 1, 2023. It is also undisputed that the Complainant received a response to this request “near the end of business hours on February 16th.” Our precedent is clear that requests submitted after business hours are treated as having been received by the public body on the following day. See Wilson v. Town of West Warwick, PR 19-03 (“[the] request was submitted on February 15, 2018 at 7:52 pm, after the close of business hours. Accordingly, we will treat it as submitted on February 16, 2018”). Therefore, the Complainant’s request was received by RIDOT on February 2, 2023, and because RIDOT’s response was sent “near the end of business hours” on February 16, 2023 (the tenth business day), RIDOT’s response was timely. We thus find no violation.
· Non-Disclosure of Subject Records
The APRA provides that all records maintained by public bodies are subject to public disclosure unless the document falls within one of the twenty-seven (27) enumerated exemptions. See R.I. Gen. Laws § 38-2-2(4)(A)-(AA).
Among those exemptions, the APRA exempts from disclosure “[a]ny records which would not be available by law or rule of court to an opposing party in litigation.” R.I. Gen. Laws § 38-2-2(4)(E). The APRA also exempts from disclosure “[r]ecords, reports, opinions, information, and statements required to be kept confidential by federal law or regulation or state law or rule of court.” R.I. Gen. Laws § 38-2-2(4)(S). RIDOT relies on 23 U.S.C § 407 to support its use of Exemptions (E) and (S). This statute states, in pertinent part:
“Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.”
The Complainant does not dispute that the records he is seeking are subject to 23 U.S.C § 407 and would not have to be produced by RIDOT if it were a party in litigation. See Pierce County v. Guillen, 537 U.S. 129, 146 (2003) (“[the statute] protects not just the [accident] information an agency generates, i.e., compiles … but also any [accident] information that an agency collects from other sources … [w]e therefore adopt this interpretation.”). Instead, he argues first that because he is not a litigant, Exemption (E) is inapplicable to his request. However, under the APRA, the Complainant’s status (or lack thereof) as a litigant is irrelevant to determining whether the subject records are public. It is long established as a canon of APRA interpretation that requesters are treated equally under the APRA. See Farinelli v. City of Pawtucket, PR 23-39 (“public bodies should respond consistently to APRA requests and a document that has been made public to one person under the APRA should likewise be made public to another requester seeking the same record”). Thus, the analysis does not turn on whether the Complainant himself is a litigant but rather whether the underlying records themselves are public, regardless of the purpose of the underlying request, which is irrelevant to our analysis. See e.g. Harper v. Portsmouth PD, PR 19-15 (“a person making an APRA request need not provide a reason for the request”); see also R.I. Gen. Laws § 38-2-3(j).
APRA Exemption (E) incorporates litigation privileges such that a public body like the RIDOT does not have to make something available under APRA that they would not have to produce in litigation. Because the record supports and the Complainant does not dispute that the requested records would be exempt from production in litigation, the underlying data records in this instance are nonpublic regardless of the Complainant’s purpose in making the request. See Rhode Island Center for Justice v. Rhode Island Department of Corrections, PR 20-44; see also Hydron Labs., Inc. v. Dep’t of Atty. Gen. for State, 492 A.2d 135, 139 (R.I. 1985) (“It was never the Legislature’s intent to give litigants a greater right of access to documents through APRA than those very same litigants would have under the rules of civil procedure. Therefore, exemption [E] of APRA was enacted to limit production under APRA to the scope of production allowed in pending litigation.”); see also Pierce County v, 537 U.S. at 134 (noting that because “[s]tates feared that diligent efforts to identify roads eligible for aid … would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made … the United States Department of Transportation (DOT) recommended the adoption of legislation prohibiting the disclosure of information compiled in connection with [data compilation].”).
Additionally, the mere fact that the component parts of the data sought by the Complainant are maintained by municipalities and may be publicly available through the APRA process does not render the records he is seeking from RIDOT public, as argued by the Complainant. The plain language of 23 U.S.C §407 contemplates the non-public nature of a compilation of data, and not its component parts. See 23 U.S.C §407 (rendering “reports, surveys, schedules, lists, or data compiled or collected … not subject to discovery or admitted into evidence”) (emphasis added); see also Providence Journal Co. v. Sundlun, 616 A.2d 1131, 1135 (R.I. 1992) (“we must adhere to the settled principle of construction that when a statute is unambiguous on its face and expresses a clear and sensible meaning, we interpret the statute according to the plain and literal meaning of the language contained in the statute.”) .
We acknowledge the Complainant’s argument that RIDOT has discretion to produce the subject records and that other states have seemingly produced records similar to those that he is seeking. Although RIDOT also referenced § 38-2-2(4)(S) in both its response and its initial denial of the Complainant’s request, because Exemption (E) is applicable and renders the records in question nonpublic, we decline to formally analyze Exemption (S) in this finding. However, we do note that Exemption (S) applies to records that are required to be kept confidential by law and that a public body does not have discretion to produce. We have not been presented with evidence that DOT was required by law to keep these records confidential and the record before us contains evidence indicating that while DOT had discretion to withhold the requested information, it was not required to do so. We strongly encourage DOT to consider whether it may be in the public interest to disclose the requested information.
This Office’s role under the APRA requires us to apply the existing law and determine what documents must be disclosed. 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 in most cases a public body may, in its discretion, provide access to an exempt document (or portions thereof) in favor of government transparency, consistent with the spirit of the APRA. Although this Office encourages public bodies to consider disclosing records even when they are subject to an exemption, failing to provide access to permissibly exempted documents does not violate the APRA.
We therefore find no violation.
Although this Office will not file suit in this matter, nothing within the APRA prohibits the Complainant from filing an action in Superior Court seeking injunctive or declaratory relief. See R.I. Gen. Laws § 38-2-8(b). Please be advised that we are closing our 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/ Adam D. Roach
Special Assistant Attorney General
 23 U.S.C. § 407 was formerly cited as 23 U.S.C. § 409 until it was renumbered on November 15, 2021.
 Although we find RIDOT’s response to have been timely, we also note that it is unclear whether the Complainant sought to pursue the timeliness claim in the first place, as he stated in his Amended Complaint that this issue was “mostly moot.”
 The Complainant states that “ does not protect copies of the same data from discovery when held by Providence … Providence would therefore not be restricted by 23 U.S.C. .” Assuming the Complainant’s contention is accurate (which is an issue that is not before us), he could perhaps accumulate the data he is seeking through making requests to the individual municipalities.