SB 395 Senate Testimony

Max Ledoux of Tuftonboro NH, a member of RTKNH, provided the following video testimony to the Senate Public and Municipal Affairs Committee in support of SB 395.

David Saad of Rumney NH, a member of RTKNH, also provided the following written testimony:

My name is David Saad.  I live in Rumney NH and currently serve on the Rumney planning board. I am also the President of Right-to-Know New Hampshire (RTKNH).

I ask you to support SB 395 which provides for delivery of records over the internet at no cost.

Part 1 Article 8 of the NH Constitution states “All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.

When I file a right to know request with SAU 48, they are responsive.  I send them an email asking for electronic records.  They reply to my email with the requested records attached.  Request filled.  Both parties can now move on to other matters.  Sending records over the internet allows the public body to fulfill the request in the most efficient and least costly manner.  In today’s world of the internet, electronic records, and electronic communication this is how business is conducted efficiently.

However, other public bodies choose to not be responsive.  Instead they erect unnecessary barriers in order to thwart the public’s right to know.  They know that requiring the person to access electronic records during normal business hours at the public agency’s place of business, will act as a deterrent to filing right to know requests.  They also require the citizen to pay for a USB device.  They follow the path of most resistance instead of the path of least resistance.  They make it more difficult and costly for all parties for no legitimate reason.  These actions are in direct opposition to ensuring the greatest possible public access to governmental records (RSA 91-A preamble).

There is no good reason why a public agency would establish a policy that would require a disabled senior citizen to drive twenty miles to the SAU office and pay for a USB device in order to receive the school board minutes when the administrative assistant could have simply emailed them with just a few mouse clicks.

This bill will end that policy.

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David Taylor of Durham NH, a member of RTKNH, also provided the following written testimony:

I am David K. Taylor of Durham, NH. I served 12 years on the Oyster River School Board and over 20 years on the Oyster River Long Range Planning Committee. For the past several years I have been an advocate for open government. I am writing to ask you to support SB 395.

Should a citizen be charged $7.49 to receive a public 3-page email electronically? That is what SAU 55 charges, and the N.H. Supreme Court agrees under the current language of RSA 91-A.  The Court decided this case of Taylor v. SAU 55 on September 21, 2017. The court also ruled that the SAU could impose onerous means of providing the record and refuse to simply forward the email.

This is in spite of HB606 passed in 2016 that intended to make access to electronic records over the internet free. HB606 provided “[n]o fee shall be charged for the … delivery, without copying, of governmental records, … in … electronic … form.” The court decided that providing any electronic record always involves copying, so this provision never applies. Further, the court decided delivery only refers to bringing records to a business office so they can be inspected, instead of delivering the records to the citizen as the legislative history shows.

In the age of the internet, where records are all becoming electronic, and the cheapest way for all is to provide access over the internet, the law should make it clear citizens should have easy access to electronic records. This bill establishes a clear right of citizens to be provided governmental records in electronic format. This clarifies the court ruling in Green v. SAU 55 where the court read between the lines of RSA 91-A to find this right. The bill establishes the procedure for providing these records in a way the citizen can most easily use them. And when there is no substantial incremental cost for providing these records, it establishes that they shall be free. The language of this bill is derived from that of Massachusetts and Connecticut, adapted to fit the framework of RSA 91-A.
Clearly, the ruling in Taylor v. SAU 55 shows RSA 91-A is behind the times. It doesn’t recognize the realities of today and allows government agencies to put needless roadblocks in the way of what should be easy access to electronic records. This bill will be a big step forward to correct this problem.

In addition to this introductory letter, I have included below more background details on issues addressed by SB 395 that I hope may answer your questions about this bill.

Please vote that SB 395 ought to pass.

 

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