The New Hampshire Supreme Court held that the School Administrative Unit’s policy requiring use of a thumb drive to produce electronic records was valid under The Right-to-Know Law.
The plaintiff, Taylor, requested school board minutes be sent to him by email. He was instead informed of the SAU’s policy that required electronic records to be produced on a thumb drive—either supplied by the requester or supplied by the SAU, in which case the requester must pay the actual cost of the thumb drive, which is $7.49. The plaintiff filed a lawsuit, alleging that the SAU’s refusal to send the minutes by email was a violation of 91-A. The trial court determined that the thumb drive policy did not violate the law.
The New Hampshire Supreme Court agreed with the trial court. The Court said that the SAU was properly charging the “actual cost” of copying as permitted under RSA 91-A:4, IV, since $7.49 was the actual cost of a thumb drive. The Court reasoned that there is nothing to suggest that statute was only meant to apply to paper copies. A thumb drive is just one permissible medium to which a record can be copied.
The Court also noted that there is nothing in RSA Chapter 91-A that requires actual delivery of records, nor does the law require delivery of electronic records in the manner requested here—email. The Court determined that copying records to a thumb drive satisfied the plaintiff’s request to provide the records in electronic form and did not limit his ability to review the requested records.
Finally, the Court shared the SAU’s concerns about the unreliability of sending records via email and the potential cybersecurity threats that may be increased by sending attachments to emails. Even though the SAU and its staff may use email regularly for other purposes, due to the importance of documenting compliance with The Right-to-Know Law, it is proper for the SAU to use a more formalized process for responding to records’ requests.
Therefore, because the thumb drive policy did diminish the use of governmental records, and served the important purposes of protecting public bodies’ and public agencies’ information technology systems and documentation of compliance with the law, the Court held the policy was reasonable and did not violate RSA Chapter 91-A.