Court: Public Entitled To Government Records in Electronic Format

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View Video/Audio of the New Hampshire Supreme Court argument Donna M. Green v. School Administrative Unit 55 on Jan. 7, 2016.

New Hampshire Supreme Court ruling in the case released April 19, 2016

The state Supreme Court has ruled in favor of the public when seeking government records in an electronic form as long as it is already kept in an electronic format.

The court ruled in favor of Timberlane School Board member Donna M. Green on Tuesday saying she is entitled to budget documents in an electronic format that she requested from SAU 55 about 15 months ago.

The unanimous ruling written by Associate Justice James Bassett said there may be some “ambiguity” in the state’s right-to-know law, but noted it should be construed in favor of disclosure.

“Because the ‘purpose of the right-to-know law is to ensure both the greatest possible public access to the actions, discussion and records of all public bodies, and their accountability to the people,” we “resolve questions regarding the right-to know-law with a view to providing the utmost information in order to best effectuate these statutory and constitutional objective,” Bassett wrote.

“As a result, we broadly construe provisions favoring disclosure and interpret the exemptions restrictively,” Bassett wrote. “We note, however that if the Legislature disagrees with our statutory interpretation, it is ‘free to amend the statute as it sees fit.’”

The district refused to provide the documents in electronic format and told Green the paper records were available for inspection. Its written policy said it would charge 50 cents a page and that “only hardcopies will be produced, no electronic copies will be provided.”

The court overturned  Superior Court Judge Dave Anderson’s ruling that said while there “may be a strong policy argument to be made” for requiring public entities to produce documents in electronic format, the state’s right-to-know law leaves it up to the government to decide on format.

Bassett’s ruling also noted that the school district did not argue that it would have to create a new format citing RSA 91-A:4, VII. That section of the right-to-know law exempts the government from compiling information in a form that does not already exist.

Nor did it argue that the documents  contained confidential material, Bassett wrote.

“Accordingly,we conclude that (Green) was entitled to the requested documents in electronic format,” Bassett wrote.

Green said the documents she sought included salary information in the budget. “It’s hundreds of pages and they wanted to charge me 50 cents a page,” Green said.

“This absolutely will have statewide ramifications,” Green said. “In some cases, towns need to be educated about the right-to-know law. In other towns, outright obstructionism is going on.”

David Saad, president of Right To Know New Hampshire, said his group has been monitoring the case.

Saad summarized the decision: “(I)f the governmental record exists in electronic format and the citizen requests the record in an electronic format which already exists, the record must be provided in the requested format.”

Saad said while the court found the language in the statute ambiguous, it looked to the purpose of the right-to-know law, which is to “increase public access to all public documents and governmental proceedings, and to provide the utmost information to the public about what its government is up to.”

“The court recognized that the overwhelming majority of information today is created and stored electronically, and agreed that the ‘dissemination of public, non-confidential information in commonly used [electronic] formats ensures the greatest degree of openness and the greatest amount of public access to the decisions made by the public officials,’” Saad said.