The New Hampshire Supreme Court ruled today, September 21, 2017, that School Administrative Unit 55 is allowed to charge $7.49 to provide a 3-page email in electronic format. In the case of Taylor v. SAU 55, the court ruled that the charge for a thumb drive covers the actual cost of making a copy. The court ruled that the No Fee Provision of RSA 91-A:4, IV allows providing an email by thumb drive, reading delivery to mean the transfer of the email within the SAU, not delivery to Taylor. Taylor had asked that the email be forwarded to him, instead. The SAU had argued that forwarding the email would be a security risk and would not allow reliable confirmation of receipt. The court agreed with both points. The full court opinion is available here.
The New Hampshire commission to study Right-to-Know complaint resolution met for the first time last Thursday, September 7, 2017 at 1:30 p.m. It’s official name is the Commission to Study Processes to Resolve Right-to-Know Complaints. It was formed by House Bill 178. All the members except Rep. Gary Hopper and Chris Dwyer representing the N.H. Municipal Association attended.
The first meeting was for the Commission to organize itself. Rep. Jordan Ulery called the meeting together and asked each member to introduce themselves. He then opened the floor for nominations for chair and nominated himself. Harriet Cady, representing pro se litigants, nominated Sen. Bob Giuda. The vote was split 5-5 between the nominees, and after some friendly negotiations, Sen. Giuda agreed to be chair. Harriet Cady then nominated Rep. Ulery as vice chair, and he was approved unanimously. Mark Hounsell, representing the N.H. Association of Counties, then nominated Harriet Cady as clerk, and she was approved unanimously. Rep. Ulery remained as chair for this meeting.
The Commission then began a discussion about its charge and the short deadline of November 1, 2017 for its report. Gilles Bissonnette of the N.H. ACLU offered to have his intern research similar statutes from other states. David Saad of Right to Know N.H. said he had already started that research, so they agreed to work together. Sen. Giuda noted that plagiarism is allowed in legislation and thought this was a good idea.
While the discussion of the charge started from the recognition that it should stay focused, the discussion quickly broadened. Harriet Cady explained how the costs and burdens of relying solely on the courts is too great. Besides resolving complaints, the provision in HB 178 to “increase awareness” focused discussion for a while on the need for better education and training about the Right-to-Know Law. This discussion lead to the agreement to share resources from the N.H. Attorney General, represented by Lisa English, the N.H.M.A, the N.H. ACLU, and Right to Know N.H.
The discussion touched on lots of problems with the Right-to-Know Law in general. This ranged from difficulties trying to get access to records and meetings, to how to add teeth to penalties. A focus was the role of board members in responding to Right to Know requests made to their agencies. Trent Spiner of the N.H. Press Association noted that the means to resolve complaints needs to be timely, and not just cheaper. The Commission discussed timeliness of the courts with Right-to-Know complaints and consensus was that the courts adequately expedited these cases. Cost was the bigger issue. However, several members noted that a Right-to-Know request is often stale by the time the issue works its way through the courts. Cady noted the average citizen does not feel confident enough to go to court.
The Commission briefly discussed possible alternative mechanisms to resolve complaints. These ranged from a new ombudsman position added to the A.G. office, to a 3-member panel of volunteers. Cady offered the Board of Tax and Land Appeal as a model.
Sen. Giuda asked Bissonnette and Saad whether they would need 1 or 2 weeks to survey other state statutes, and decided to schedule the next meeting for 2 weeks. That is at 1:30 on Thursday, September 21, 2017 in room 103 of the State House. Besides the presentation of the statutes from other states, Lisa English offered to describe the current procedure to resolve complaints as well as penalties. Sen. Giuda said he felt optimistic that the Commission could complete its work on time. Roughly, he said the next meeting would be for the Commission to educate itself. Then the next meeting would be about how to improve education about the Right-to-Know Law and penalties for violations. The next meeting would be a discussion about what kind of alternative procedures the Commission would like to recommend, and the last meeting would be to formulate a bill. He noted that the leaders of the House and Senate have said they would expedite the bill that comes out of the Commission since it would have missed the early deadlines. The meeting adjourned just before 3:00.
All the Right-to-Know bills are finished in both the House or Senate for 2017. As such, it is a good time to summarize the results for the 2017 legislative session. There were 9 Right-to-Know bills tracked by RTKNH. 3 bills were passed, 6 bills were killed, and 1 bill was retained in committee.
Passed and Signed. The following 3 bills were passed by both chambers and signed by the Governor.
HB178 a bill drafted by RTKNH, establishes a 13 member study commission on resolving Right-to-Know complaints.
HB460 a bill drafted by RTKNH, states that meeting minutes must now include any objections made to any discussions during a meeting if a member of the public body believes that the discussion is in violation of the Right-to-Know law.
HB170 states that if a public body maintains an Internet website it shall either post its approved minutes in a consistent and reasonably accessible location on the website or post and maintain a notice on the website stating where the minutes may be found. Also, If a public body chooses to post meeting notices on the body’s Internet website, it shall do so in a consistent and reasonably accessible location on the website. If it does not post notices on the website, it shall post and maintain a notice on the website stating where meeting notices are posted.
RTKNH wishes to thank Rep. Ken Weyler, Rep Majorie Smith, Rep. Dan Hynes, and Rep. Chris True for sponsoring a RTHNH bill.
Right to Know NH will meet on Saturday, September 16, 2017 at 9:00 A.M. in Concord, NH at 8 North Main Street in the office of the Coalition of New Hampshire Taxpayers. We will discuss the status of Right to Know Law (RSA 91-A) bills drafted by RTKNH to be introduced into the upcoming NH legislative session. The public is welcome to join us.
The Union Leader reports that Right to Know NH is this year’s recipient of the Nackey S. Loeb First Amendment Award. The award will be presented on October 5, 2017 at the Palace Theater in Manchester, NH. The event will also feature attorney Gregory V. Sullivan who will receive the Quill & Ink Award and story-teller Garrison Keillor of “A Prairie Home Companion” radio show. The event is a fundraiser for the Nackey S. Loeb School of Communications.
Established in 2013, Right to Know NH is a nonprofit, nonpartisan citizen coalition that works to make state, county and local government in New Hampshire more open and transparent. Group president David Saad and other members testify on public-access and right-to-know proposals in the Legislature and work to educate citizens and public officials about their rights and responsibilities under the Right to Know Law.
Sullivan, of Malloy & Sullivan LPC, is being honored for his “tenacious defense” of First Amendment rights, the school said, as well as his efforts to educate the public and aspiring journalists about their rights and responsibilities under the law.
Governor Sununu signed HB170 into law on July 18th.
This bill states that if a public body maintains an Internet website or contracts with a third party to maintain an Internet website on its behalf, it shall either post its approved minutes in a consistent and reasonably accessible location on the website or post and maintain a notice on the website stating where the minutes may be reviewed and copies requested. Also, If a public body chooses to post meeting notices on the body’s Internet website, it shall do so in a consistent and reasonably accessible location on the website. If it does not post notices on the website, it shall post and maintain a notice on the website stating where meeting notices are posted.
This change takes effect January 1, 2018.
The Town of Tuftonboro, N.H. lost it’s effort to charge $0.15 per page to redact emails provided electronically. Judge Amy Ignatius in Carroll County Superior Court ruled that redacting emails electronically does not substantively change their format nor does it incur actual costs that can be charged. The town had not sought to be reimbursed for the time it takes employees to redact the emails, and they provided no evidence of other expenses.
Unlike most Right-to-Know Law cases where a citizen sues for access to records or meetings, in this case the Town of Tuftonboro took 2 of its residents to court. The town basically wanted the court to declare whether the town could charge for redacted records. Since the citizens had to respond to the preemptive lawsuit by hiring a lawyer, they sought help from supporters. The town sought for details about those supporters, but the court also denied that request. In spite of the burden imposed by the town on the citizens, the court did not award attorney’s fees or court costs because the issue of redaction costs was not settled law and therefor the town did not “know or should have known” it was improperly denying access. The town has 30 days until September 7, 2017 to appeal. The full court order is available here.