American Civil Liberties Union of Rhode Island lawyers today filed an Access to Public Records Act (APRA) lawsuit against the state’s Attorney General, challenging a $225 fee his office has charged a Roger Williams University Law School student in order to provide her copies of public reports that state law specifically requires the Attorney General to annually prepare and submit to the General Assembly.

The lawsuit calls the fee “per se unreasonable” since the records “should be readily accessible” and the public shouldn’t have to pay for reports that an agency is required to publicly submit. The suit also calls the fee “so large as to deter Plaintiff and members of the public from pursuing their request for the records.”

The lawsuit was filed by ACLU of RI cooperating attorneys Carolyn Medina and Lynette Labinger on behalf of 2nd year law student Lindsay Koso, who has been doing research for a law review article on the subject of immigration law in the state. One of those laws allows criminal defendants to have their plea agreements vacated if the judge fails to apprise them that a plea could have adverse immigration consequences. The law further requires the Attorney General to prepare an annual report listing cases in which plea agreements were vacated on that basis, and it was copies of these reports that Koso sought to obtain.

In response to her request, Special Assistant Attorney General Adam Roach told Koso that, by his “conservative” estimate, it would take 15 hours to retrieve the reports, and that prepayment of $225 was required in order for them to search for the documents. APRA allows public bodies to impose a “reasonable charge,” up to $15 an hour, for the search and retrieval of documents.

However, the lawsuit argues it is “per se unreasonable” for a public body to charge search and retrieval fees for “public records that are statutorily mandated to be submitted to another governmental body by the agency to which the request is made,” and that it is similarly unreasonable to charge fees for records like these which “should be readily accessible.” The lawsuit further claims that the “pre-payment of $225 for the search and retrieval of the requested records is per se unreasonable as this amount is so large as to deter Plaintiff and members of the public from pursuing their request for the records.”

The lawsuit separately challenges the Attorney General’s position, stated in the response to Koso, that if she failed to remit the $225 pre-payment within 30 days, her request would be closed, forcing her to start over if she wanted to pursue the request. The suit argues there is no basis in APRA for imposing a 30-day payment requirement that otherwise leads to the dismissal of an open records request.

In terms of remedies, the lawsuit seeks a judicial declaration that search fees cannot be charged by agencies for records “which are statutorily required to be prepared and publicly submitted by and between agencies or public bodies as defined in APRA, or alternatively, declare that such charges shall be waived because release of such records is presumptively in the public interest,” and that an agency “may not impose a deadline for the prepayment of search and retrieval fees upon the penalty of the closing or dismissal of an APRA request for records.”

Law student Koso said today: “I started this project to research and write a paper which could potentially help Rhode Island’s immigrant population. I did not start it to bring a lawsuit against the Attorney General’s office. However, the difficulty I encountered while trying to access these records deeply concerns me; if I am having this much trouble obtaining this information as a law student, imagine how difficult it must be for others. Access to information that allows the public to better understand the workings of our government is essential, and hopefully this lawsuit will help others who are trying to obtain what should be readily available records.”

ACLU attorney Medina added: “Access to public records should not depend on a requestor’s ability to prepay a large search fee.  When a request seeks a report that one agency of government is required by statute to submit to another, any search fee at all is unreasonable and defeats the purpose of the statute that mandates the report in the first place.”

The charging of excessive APRA fees is a complaint that the ACLU often hears from public records requesters, especially for records whose disclosure is in the public interest. In order to promote the public’s right to know, nothing in the law prevents agencies from reducing or waiving search and retrieval fees.

Two years ago, the ACLU assisted state Representative Patricia Morgan in obtaining from Attorney General Neronha a waiver of more than $4,000 in fees that former Attorney General Peter Kilmartin demanded from her in her quest for documents pertaining to the expenditure of more than $50M in funds received in a class-action lawsuit against Google.

More info on the case can be found here.


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