Right-to-Know Supreme Court Victory
Guest editorial by Donna Green.
Our state’s Right-to-Know Law became more robust on April 19. That’s when the New Hampshire Supreme Court issued a unanimous decision that public bodies must, if requested, provide documents in electronic format when they are maintained electronically.
For me, this was an enormous victory. As an elected member of the Timberlane Regional School Board, I have been trying to obtain the names, salaries and employment status of the school district’s 700 or so employees in a format suitable for detailed analysis.
My long journey to this victory began in December 2013. Then a member of the Timberlane Regional School Budget Committee, I asked for the number of staff being funded by the proposed 2014/15 budget. My request was ignored so I made my first ever Right-to-Know request.
SAU 55’s first and second response was that the information didn’t exist. My reply was one of incredulity. I threatened to go to the Attorney General’s office. Superintendent Metzler then provided the information in Jan. 2014. A few months later I was elected to the Timberlane Regional School Board.
As it happened, when Timberlane’s 2014/15 staffing report was filed with the Department of Education, there was a large disparity between the number of (full-time equivalent) staff given to me by the superintendent in January and that reported to the Department of Education. It seemed we budgeted for 35 positions that were not filled, but no explanation was ever provided for this discrepancy.
Then I learned that the Hampstead Budget Committee is given an electronic file of all positions and staffing costs in the Hampstead School District. This was a revelation because both Hampstead and Timberlane school districts are administered by SAU 55. So – the same administration using the same software gives Hampstead information that Timberlane didn’t even know existed.
Naturally, I then asked the Timberlane Regional School Board Chairman to provide the entire Timberlane School Board with the corresponding budget information that Hampstead receives concerning staffing. Timberlane’s Chairman at the time, Nancy Steenson, refused – saying it would be a waste of paper as no one on the Timberlane School Board has ever previously had use for such information. I ultimately responded with a Right-to-Know request for an electronic file.
No electronic version was forthcoming, but SAU 55 did make a paper printout available for inspection at their office by appointment and supervision by the Business Administrator. Keep in mind the documents were in the hundreds of pages. By policy, SAU 55 charges 50 cents a page for copies. I would have had to pay hundreds of dollars; furthermore, a stack of paper copies would leave me with documents that couldn’t be searched or reorganized for analysis.
With the assistance of Right to Know New Hampshire and others, I filed a pro se case in Superior Court on February 3, 2015: Donna Green v. SAU 55, the Timberlane Regional School Board, Earl F. Metzler, and Nancy Steenson. I argued that the Right-to-Know Law (RSA 91-A:4, V), , requires public bodies to produce electronic files when the documents requested exist electronically.
On March 9, 2015, Superior Court Judge David Anderson, although sympathetic to my case, ruled that public bodies have the choice to provide either paper or electronic format. I filed for reconsideration. It was denied.
My husband and I were aghast. If we let this ruling stand, it would be embraced by less than forthcoming public bodies beyond Timberlane. Thankfully, Richard J. Lehmann of Douglas, Leonard & Garvey took my appeal to the NH Supreme Court.
On Jan. 7, 2016, Attorney Lehmann argued that the law does not give discretion to public bodies but, in fact, requires them to provide electronic format when documents are maintained electronically. Three suspenseful months later, the Supreme Court determined that the law might be somewhat ambiguous; nevertheless, in light of the purpose of the Right-to-Know Law, which is to provide the utmost information to the public, “…the plaintiff is entitled to the requested documents in electronic format.”
Although this is a victory for the citizens of New Hampshire, it is a tremendous black eye to the Timberlane Regional School District which will go down in history as the public body that wasted many thousands of taxpayer dollars trying to thwart one of its own board members from getting budget information in a usable format.
Not to go down without a fight, though, SAU 55’s superintendent immediately issued a policy change: electronic files will be provided only on a thumb drive delivered in unopened original packaging. That’s right: an SAU which is a service organization to the citizens of our school district and its governing body, the Timberlane Regional School Board, will not email any Right-to-Know responses. Board members and citizens must go to the SAU office during their restrictive hours of 8:30 am to 4 pm, Mon. – Fri., drop off a thumb drive and then return to pick it up. Both SAU 55’s board and the Timberlane Regional School Board as a whole refused to take issue with this new policy.
As one of the Supreme Court justices asked of Timberlane’s lawyer during the hearing, “Why not just give her the information?”
No law can legislate common courtesy. I dropped off my thumb drive ($6) to SAU 55 with a fresh Right-to-Know request to follow.
I’m the public face of a public battle, but behind me are many people. My husband, Arthur, has been more than half of all this with financial, factual and emotional support. Many others have helped, too, with the pro se brief, with publicizing the issue, and general encouragement. To Richard Lehmann, our steadfast advisor, goes our deepest gratitude and respect.
For more on the background of the staffing issue click here.
Donna Green serves as a Sandown representative to the Timberlane Regional School Board and is also member of Right to Know NH.
Additional press coverage of the Supreme Court victory: