The following summary is based on decisions of the Merrimack County Superior Court Kelley v. Hooksett Assessing Office, Merrimack County Superior Court, Case No. 11-CV-566, October 12, 2011 and Grafton County Superior Court Sourgiadakis v. Littleton, Grafton County Superior Court, Case No. 215-2011-CV-321, November 3, 2011. Please note that (a) superior court opinions are not binding on the New Hampshire Supreme Court, and (b) at the time this summary went to print, it was still possible for this decision to be appealed to the New Hampshire Supreme Court.
RSA 91-A:4, IV states that “the person requesting the copy may be charged the actual cost of providing the copy….” This pair of superior court cases both addressed the often asked but never answered question of “may a municipality include overhead, staff time, and other associated costs incurred in providing those copies?” In other words, what is the actual cost of providing the copy?
In the first case, Kelley v. Hooksett Assessing Office, the Town’s Assessor spent three hours going through documents to find the ones responsive to the request, which resulted in approximately 40 pages of documents. The Assessor sent a letter informing Mr. Kelley that the documents would cost $1.00/page, which was an error. As soon as the error was discovered, the Assessor sent another letter explaining that the actual cost was $0.50/page. The plaintiff found this unreasonable and sued. The Superior Court’s one-page decision stated that “the charge of $0.50 per page does not exceed actual cost when all direct, indirect and overhead cost factors are considered.”
In Sourgiadakis v. Littleton, the stakes were considerably higher. The plaintiff requested documents from the Town regarding a boycott of businesses in Littleton. The central issue of the case involved 22 hard drives from police department computers that needed to be searched for emails and other documents. However, the search was beyond the technical ability of Town personnel. The cost to have professionals perform the search was going to be $4,180, which the plaintiff refused to pay. In 2001, the Supreme Court in Hawkins v. N.H. Dep’t of Health and Human Services, 147 N.H. 376, held that the cost of providing records requested under RSA Chapter 91-A “is not a factor in determining whether the information is a public record,” but the Court in that case did not reach the issues of who bears the cost of producing that information. In this case, the Superior Court had to answer the question, and found the cost associated with searching the hard drives was part of the actual cost of providing the copy, and the Town was justified in charging the plaintiff those costs.
In both of these cases, the amount charged by the government for copies was considered reasonable under RSA 91-A:4. However, caution is advised. The Superior Court denied a motion to reconsider the Kelley decision on November 29, 2011, and as of the time this magazine went to print, an appeal to the New Hampshire Supreme Court was still possible. An appeal of the Sourgiadakis decision to the Supreme Court is also quite likely. Even if no appeal is filed in either case, it may not be prudent to rely on the language of these decisions when determining the actual cost of copies. Each was decided on a narrow set of facts, and neither decision is binding on other courts. Neither includes a thorough discussion of how to properly calculate “direct, indirect and overhead costs” when determining the actual cost of providing copies. In addition, the Sourgiadakis decision leaves open the very significant question of the extent to which computer records must be searched in response to a request under RSA 91-A.