Superior court rules that city has no duty under Right to Know Law to comply with specific request for copies in the form of an e-mail attachment

Nolen v. Keene
Nolen v. Keene
Cheshire County Superior Court, Case No. 09-E-0152
Monday, November 23, 2009

The following summary is based on a decision of the Cheshire County Superior Court. 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.

This decision of the superior court addresses the issue of whether a person requesting copies of governmental records under RSA Chapter 91-A, the Right to Know Law, is entitled to demand the copies as an e-mail attachment.

The plaintiff Nolen, a resident of Barre, Vermont, submitted by e-mail a request for extensive information about all City of Keene employees, including names, contact information, job titles, work locations and salary. He demanded that it be sent to him by e-mail attachment. The City sent Nolen a letter stating that the records, excepting confidential information, were available for inspection at the office of the city clerk and that the City would mail copies to him upon payment of the costs for copying and mailing. When Nolen came to City Hall, he was shown paper copies to inspect. Nolen filed suit, alleging violation of RSA 91-A by the City in its refusal to provide copies as an e-mail attachment per his request.

Quoting from Gallagher v. Windham, 121 N.H. 156, 159 (1981), the court noted: “RSA 91-A:4 does not contain language imposing an absolute duty on towns or agencies to provide copies of public records to citizens. Rather, the statute contemplates that public records be made available to individual members of the public for their inspection and reproduction.”

The court observed that a public body or agency “may, in lieu of providing original records, copy governmental records requested to electronic media,” RSA 91-A:4, V, but it is not required to do so. “[A]s long as the records are available for inspection and copying, a public body or agency has satisfied its duties under the statute.”

The court distinguished Menge v. Manchester, 113 N.H. 533 (1973), in which the Supreme Court determined that Menge had a right to obtain a copy of a computerized tape of 35,000 field record cards that the City of Manchester used in assessing property taxes. In that case, it was determined that making paper copies or examining each card by hand would be far more costly and time-consuming than copying the information to a computer tape. The court then noted that under the federal Freedom of Information Act the government has no obligation to accommodate a requester’s format preference unless the format provided by the government affects the requester’s access to the information. The court also discussed cases from several other states to the effect that the government is not required to provide records in a particular format unless it is necessary to prevent an undue burden on the requesting party.

In the present case, the paper copies totaled 40 pages at a cost of less than 20 dollars. The City also cited its concerns with individuals “mining for metadata” to see what changes had been made in documents prior to the final version. Under the circumstances, the court held that the City had met its obligation under RSA 91-A.

This decision, although it does not have the binding authority of a New Hampshire Supreme Court decision, should be a valuable resource for municipal officials as they confront the growing volume of electronic records issues under the Right to Know Law.