By Mark T. Broth
When it was first enacted, technology only intersected with the Right-to-Know Law (RSA 91-A) at a government body’s copying machine. The most challenging technological question that the statute presented was the amount that could be charged per page for photocopying requested documents. The original law has been amended in recognition of the fact that many governmental records are now kept in electronic form rather than on paper. RSA 91-A:4 now provides that if records are kept electronically, the public can insist on receiving those records in an electronic format. But does RSA 91-A allow a document requester to dictate the specific electronic format in which the records are produced? In its September 21, 2017 decision in David Taylor v. School Administrative Unit #55, the New Hampshire Supreme Court held that documents that exist in an electronic format can be made available in a different electronic format if the public body has good reason for changing format and as long as the change in format does not obstruct access to the requested information.
In June 2016, New Hampshire citizen David Taylor made a request under the Right-to-Know law that SAU #55 e-mail him the May 2016 non-public meeting minutes from the SAU board’s meeting. SAU #55 is comprised of the Timberlane Regional School District and the Hampstead School District (collectively, the “District”). This request was denied on grounds that the non-public minutes had been sealed. Mr. Taylor then requested that the District provide him, via e-mail, with a copy of an e-mail that had been sent to the School Board concerning the non-public session. The District denied that request. Instead, and in accordance with the District’s Right-to-Know procedure, Mr. Taylor was offered the opportunity to obtain an electronic copy of the requested e-mail on a thumb drive, which he could supply or which he could purchase from the District.
In August 2016, Mr. Taylor filed a lawsuit against the District alleging several violations of RSA 91-A. He alleged that the School Board had violated RSA 91-A:3, III when it voted to seal the minutes of the May 2016 non-public session while in non-public session, rather than during a public session as required. He further alleged that the District violated RSA 91-A when it refused to e-mail him a copy of the requested records. Prior to the evidentiary hearing in this case, the District acknowledged that it had not properly sealed the non-public minutes and voted to keep sealed only the portion of the nonpublic minutes that concerned “emergency functions.” As a result, all but one redacted sentence of the non-public minutes was made available to Mr. Taylor, if he purchased a thumb drive from the district or supplied one that he had obtained elsewhere. The Superior Court determined that the District did not violate RSA 91-A:3, III when it refused to provide Mr. Taylor with an e-mail copy of the nonpublic meeting minutes. The Superior Court further determined that the Board had not violated RSA 91-A:3, III by creating both redacted and unredacted versions of the nonpublic meeting minutes.
Mr. Taylor appealed this decision to the New Hampshire Supreme Court. In affirming the Superior Court’s decision, the Court held that the District had met its 91-A obligations by offering to download an electronic copy of the requested materials onto a thumb drive. The Court held that charging for the actual cost of the thumb drive satisfied the provision of RSA 91-A:4, IV, which allows a public body to charge the “actual cost of providing the copy” if “a computer, photocopying machine or other device” is used to make the copy. The Court further held that requiring Mr. Taylor to come to the District office in order to obtain the electronic copy satisfied RSA 91-A:4, I, which only requires that governmental records be made available during regular business hours on the public body’s regular business premises.
Clarifying its prior decision in Green v. Sch. Admin Unit #55 (2016), the Court held that RSA 91-A does not allow a requesting party to dictate the particular electronic format in which documents be produced. In Green, the Court made clear that if a public body maintained records in an electronic format, it could not refuse to produce those records electronically and insist on a paper production. Here, the Court adopted the trial court’s decision, and held that “[s]o long as the manner of electronic production chosen by the municipality does not diminish the ease of use…of the information produced or the public’s access to the information sought, Green does not counsel in favor of one method over another.” The Court further approved of the trial court’s finding that producing the electronic copy on a thumb drive “does not in any way limit the recipient’s ability to review or search the requested documents” and therefore serves the intended purpose of RSA 91-A:3. Further, the Court approved of the trial court’s finding that making RSA 91-A productions via e-mail could create cyber security risks. The Court also noted that given the potential liability that could result from a failure to comply with RSA 91-A and the difficulty in confirming receipt of e-mails, “it is not improper for governmental bodies to adopt procedures for handling Right-to-Know Law requests that may be more formalized than those pertaining to other communications between the governmental body and members of the public.”
E-mail and Word format documents may contain “metadata” that is not visible to the casual reader. The imbedded metadata may include the original draft of a subsequently edited document, information regarding the date and time of the document’s creation, and other data automatically included by the computer program. In his appeal, Mr. Taylor alleged that by providing the requested materials via thumb drive and in a PDF format, he was denied the opportunity to search for metadata that might have been contained in the requested material’s native format. As this issue was not first raised before the Superior Court, the Supreme Court declined to rule on this issue. It is an interesting question as to whether such invisible metadata constitutes governmental records “in the possession, custody or control of such public bodies or agencies” within the meaning of RSA 91-A:4, but that will likely be the subject of a future Court decision.
Mark Broth is a member of DrummondWoodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2017 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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