In June of 2021 the Plaintiff, Laurie Ortolano, submitted a request under RSA 91-A for correspondence, including emails sent and received by certain current and former City employees. The City responded by saying that it no longer had “reasonable access” to one of the former employees emails from the time of her employment.
Ortolano filed suit, and at trial an Information Technology specialist for the city testified that by the time Ortolano requested these emails they had been automatically deleted from the email server pursuant to the City’s record retention policy. He also testified that the City utilized a backup drive, called a U-drive, and this drive did not contain any relevant emails either. However, he went on to state that the emails may still exist in yet another location. The City engaged in regular system back-ups of their computers which created “back-up tapes”. He testified that it was possible to convert records from those back-up tapes into a readable format and search them. This process of converting the backup-tapes to a searchable format would have only added “a couple of hours” to the time it took to search for the responsive documents, however this type of search was not originally performed.
The court ordered that the City perform a search of their back-up tapes. The City contended that the back-up tapes are not readily accessible as defined in the statute and that because the City had already deleted the emails from the email serve and U-drive, the records were “initially and legally deleted” under RSA 91-A:4, III-b. The court, however, stated that it was undisputed that the City’s back-up tape system exists, can be searched, and that files such as those requested by the petitioner are retrievable from the back-up tapes”. Consequently, the court found that these files were reasonably accessible and not initially and legally deleted. As a result of its failure to search the back-up tapes, the City was ordered to perform remedial training.
These findings of the lower court were upheld by the New Hampshire Supreme Court. The Supreme Court largely relied on its interpretation of the term “readily accessible”. Essentially, the court concluded that the back-up tapes were readily accessible, and thus should have been searched because the process of searching those tapes would only have taken a few hours. Furthermore, files are only initially and legally deleted when they are no longer readily accessible. Consequently, the City violated the requirements of RSA 91-A when it denied the plaintiff’s Right-to-Know request without first searching the back-up tapes for records.