HB646 was voted ought to pass with amendment 14-4 by the House Judiciary Committee this week. This bill allows agencies to charge fees to retrieve public records. The committee amendment adds a new sentence clarifying that it should be free to inspect records that are immediately available, and it clarifies the procedure for charging fees for other records. Here is the full amended new sentence and new section:
No charge shall be imposed for allowing a person to inspect a record that is immediately available.
2 New Paragraph; Right-to-Know; Charges for Retrieval of Governmental Records. Amend RSA 91-A:4 by inserting after paragraph IV the following new paragraph:
IV-a. A public body may charge a fee to cover the actual labor cost of retrieving and copying the requested records, including reviewing and redacting confidential and other exempt information, subject to the following:
(a) The amount charged per hour shall not exceed the applicable minimum wage, and no charge shall be made for the first hour.
(b) The public body or agency shall provide the requester with a reasonable estimate of the time necessary to respond to the request and of the total cost. If the estimate of the total cost exceeds $50, the requester may be required to pay all or a portion of the cost prior to retrieval of the records. If the final cost differs from the estimate, the difference shall be refunded or collected, as the case may be, at the time the records are provided.
(c) No charge shall be made for the cost of searching for or retrieving minutes of any public body meeting that occurred less than one year before the date of the request.
(d) Upon request, the public body or agency shall provide a detailed itemization of the costs charged.
(e) A court may reduce or waive the fees charged if it determines that the information requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.
(f) The public body or agency may waive any charges for an individual who demonstrates an inability to pay.
The report on the bill from the committee majority was written by Rep. David Woodbury:
This bill threads the needle between an individual’s right to free and full access to public records and the taxpayer’s right to be free from bearing the substantial costs of unreasonable or abusive document retrievals. This bill permits a public body to levy a fee for a response to a document request not to exceed minimum wage and only after the first hour, which is free of charge. No charge may be made for minutes of meetings occurring within the year prior to the request. Charges may be waived for those demonstrating an inability to pay like all compromises, this one imperfectly satisfies the two sides, but does offer taxpayer an increased level of protection.
The report from the committee minority was written by Rep. Michael J. Sylvia:
This bill would allow public bodies to estimate the time required to retrieve records requested under the right to know law (RSA 91-A). If the time to retrieve records is estimated to be greater than one hour, the person making the request might be required to make payment prior to the records retrieval. The committee heard from a number of public bodies reporting stories of abusive requests under 91-A; missing from these stories was any substantive example of an abusive request. Members of the public and the press strongly object to this bill and find the policy to be chilling to open and transparent government. While compliance with 91-A carries a cost to public bodies, these costs serve as an incentive to streamline records management to control costs. In the balance, we have a constitutional duty to maintain transparency in government; this bill would be a step in the wrong direction.
This bill now goes to the full House for a vote.