HB 1786, 1788, 1789 Testimony

David Taylor of Durham NH, a member of RTKNH, provided the testimony to the House Judiciary Committee in support of HB 1786, 1788, 1789.

HB 1786:

I am David K. Taylor of Durham, New Hampshire. I served for 12 years on the Oyster River School Board and still serve on the Oyster River Long Range Planning Committee. I have been an advocate for open government for the past several years. I write in support of HB 1786.

This simple bill adds 2 words to RSA 91-A:4, IV that clarifies that no charges of any kind may be required to simply inspect government records. HB 606 in 2016 added the provision that begins “No fee shall be charged for the inspection….” From the legislative record for HB 606, it was clear this was intended to prohibit all charges. But, in 2 court cases, the word “fee” was argued to be distinct from “cost”. One case was in Tuftonboro and the other in SAU 55.

A “cost” is a charge to cover expenses. But, the definition of “fee” is ambiguous. A fee can be any kind of charge, or a fee can be a charge for a service like attorney’s fees, or a fixed charge like an application fee.

In other places in RSA 91-A, both the terms cost and fee are used, leading to the more
consistent interpretation that fee does not include cost. For example, consider the next
sentence of RSA 91-A:4, IV:
“Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of governmental records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.”

To make sure the law prohibits all charges, both costs and fees, for inspecting records, please support HB 1786.

HB 1788:

I am David K. Taylor of Durham, New Hampshire. I served for 12 years on the Oyster River School Board and still serve on the Oyster River Long Range Planning Committee. I have been advocate for open government for the past several years. I write in support of HB 1788.

What does it cost to copy a record? Even a simple 8 and 1/2 by 11 black and white paper copy involves a lot of factors: paper, toner or ink, copy machine, electricity, facilities, etc. It is hard to figure out what the “actual cost” is as allowed under RSA 91-A:4, IV. So, many agencies and towns make a guess which I have seen range from 8 cents in Oyster River to $1.00 in Manchester. Twenty-five or 50 cents is common, too. It doesn’t seem reasonable that the actual costs really vary by so much.

There is an easy way to judge these costs. What does it cost at Staples, or Office Max or the local copy shop? All of these businesses incur the same costs and also add a margin for profit. Yet, Staples charges 11 cents per page throughout southern New Hampshire. This is the same cost for self service or if they make the copies for you. In Massachusetts law, such copies are limited to 5 cents per page.

This bill would use this kind of prevailing commercial rate for copies as an upper limit on copies from towns and agencies. Towns and agencies shouldn’t be adding a profit margin, so even this limit gives them some wiggle room.

This bill uses the prevailing commercial rate instead of a fixed rate for 2 reasons. First, the cost factors across the state may vary. The prevailing rate in a city with a lot of competition may be lower than the rate in a rural community with only a small local copy shop. Second, the cost factors may vary over time. Several years ago there was a rise in the cost of paper, for example. Or, there could be a new technology on the horizon that greatly reduces the costs. It’s better to use language like the prevailing commercial rate that can adapt without having to revise the language with each change.

The language of this bill comes from a bill currently pending in South Carolina.

Please vote that HB 1788 ought to pass and make it easier for all to know how much copies of records should cost.

HB 1789:

I am David K. Taylor of Durham, New Hampshire. I served for 12 years on the Oyster River School Board and still serve on the Oyster River Long Range Planning Committee. I have been an advocate for open government for the past several years. I write in support of HB 1789 with amendment.

This bill would make copies of all electronic records free. I agree with the goal of this bill, but I am concerned that it goes too far. In some cases, providing electronic records incurs a substantial cost, and in those cases I think it is reasonable to charge for the copies in order to cover those costs.

In particular, there are basically 2 ways to provide an electronic record. One way is to transmit it across a network like the Internet. If the town or agency already has an Internet connection, the incremental cost of sending most electronic records is negligible. A prime example is documents available on a web site. There should be no charge to copy records from a web site over the Internet.

The other way to provide an electronic record is to copy it to expendable physical media like a thumb drive or a CD-ROM disk. These expendable media cost money and are given away as part of the transfer. They represent an actual cost under RSA 91-A:4, IV. A thumb drive from SAU 55 costs $7.49 and a CR-ROM from Keene costs $1.00 for example. If the requester wants the electronic records on an expendable media, they should pay for it.

There is another potential cost to provide an electronic record. Most citizens don’t have
commercial database systems, and some don’t have Microsoft Word or Excel. In order for the citizen to be able to use an electronic record, they need it to be in a format that matches the software they have. There are common formats such as Word or Excel or formats that lose functionality like comma-separate-values (CSV), portable document format (PDF), rich text format (RTF), or just plain text. In rare cases, the citizen may need the record in an obscure format that the town would need to buy software or hire a service to convert to. Both of these options would incur a cost that the requester should pay for.

There is another bill this year, SB 395, that includes language to address these cases. Here is the provision from SB 395: “No cost or fee shall be charged for providing governmental records in a readily available format over the Internet.” This language recognizes the negligible cost of providing records over the Internet. It also limits free copies to those provided in formats the agency or town can easily provide with their own software.

I ask you to consider amending HB 1789 to use this language from SB 395. I think this
amended language better recognizes when electronic records should be available for free.

 

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