Superior Court Says Email Production Not Required

Taylor v. SAU #55
Rockingham Superior Court, No. 218-2016-CV-00900
Monday, October 24, 2016

Following the New Hampshire Supreme Court’s decision in Green v. SAU #55, SAU 55 enacted a policy for production of electronic records: No records would be emailed; instead, individuals can obtain the electronic version of records by using a USB (“thumb drive”). This requires individuals to come to the administrative office to either obtain the USB—at a cost of $7.49—from SAU 55, or to bring their own USB—sealed in its original packaging—for acquiring the electronic records.

The plaintiff, Taylor, requested a copy of school board meeting minutes by email. The superintendent’s executive assistant informed Taylor of the policy and that he would be required to come to the office to obtain the electronic record. Taylor brought suit against the SAU claiming, among other things[1], that the thumb drive policy violates RSA 91-A and that the SAU was required to send the electronic records via email.             

In Green v. SAU #55, the Court determined that, when requested to do so, a public body or agency is required to provide electronic records in electronic format in response to a Right-to-Know Law request. However, the judge in this case noted that the Court did not distinguish between various forms of electronic formatting. Therefore, the judge determined that the thumb drive policy did not violate Green or RSA Chapter 91-A. The thumb drive policy does not limit anyone’s ability to obtain or analyze the electronic records. Furthermore, SAU 55 articulated legitimate cybersecurity concerns regarding email communication and email file-sharing, as well as the unreliability of email production: files are often too big to email, and, therefore, many requests cannot be completed by email.

The judge also determined that requiring the individual to travel to the SAU’s office is not overly burdensome. In fact, RSA 91-A:4, I requires public bodies and agencies to permit inspection of records “on the regular premises of such public bodies or agencies.” The judge noted that the legislature chose not to amend this language, even though it had otherwise amended RSA 91-A:4 to include the provision regarding electronic production of records.

Finally, the judge saw no issue with the cost of the thumb drives. RSA 91-A:4, IV allows public bodies and agencies to charge the “actual cost of providing the copy” of the requested document. Because the SAU presented evidence that $7.49 was the actual cost of each thumb drive—and also allows individuals to bring in their own thumb drives—this aspect of the policy was valid as well.

Learn More in Court Decision.

[1] Taylor’s complaint also involved a nonpublic session issue, which is not described in this case summary.