Public’s Right to Know Under Attack in New Hampshire

I’m getting sued by the Tuftonboro board of selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) because I made a document request through New Hampshire’s Right to Know law and the selectmen don’t want to comply with the law.

So they sued me!

Now I’ve had to hire an attorney to defend myself, along with my co-defendant, Bob McWhirter, who is also being sued because he made a lawful request to inspect records.

We’re asking for small contributions to help us defray the costs imposed on us by the selectmen’s abuse of power.

Please consider donating $5 at https://igg.me/at/zFnfBtqY90Q.

Judge Fauver Grants Motion to Continue

Carroll County Superior Court Judge Peter Fauver granted a motion to continue Friday, which Bob McWhirter and I requested through our attorney, delaying our court date to January 27, 2017. The selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) will have to now wait to prosecute their abusive lawsuit against us.

212-2016-CV-201 Notice of Decision
212-2016-CV-201 Notice of Hearing

Union Leader Editorial on Right to Know Law: Update It

The Union Leader published an editorial this week calling for the legislature to update the Right to Know law for the digital age, while referencing the selectmen’s abusive lawsuit against Bob and me:

Tuftonboro selectmen are the latest municipal officials asking for citizens to reimburse taxpayers for the time and expense of preparing public records for inspection. State law clearly provides that citizens can inspect public documents free of charge, but can be charged for actual copying costs.

Resident Robert McWhirter wants access to 11,000 town emails. Selectmen say it will cost up to $12,800 to prepare the documents, redacting any confidential information. They are asking Carroll County Superior Court for permission to charge $.25 per page, potentially thousands of dollars.

The law needs to be rewritten for the digital age. State and local governments need to create and archive electronic records, including official email accounts, knowing that the public will read them.

– Read the full editorial at: http://www.unionleader.com/editorial/Update-the-law-Right-To-Know-in-the-information-age-12152016#sthash.OTqBsem5.dpuf

The only thing I would quibble with is the assertion by the selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) that it will cost up to $12,800 to comply  with the law. Please keep in mind that our taxes already pay the salaries of the town office staff. Replying to Right to Know requests is part of the “normal work schedule,” according to none other than Carolyn Sundquist. There is no added cost.

Union Leader Reports on Selectmen’s Retaliatory Lawsuit Against Tuftonboro Residents

The New Hampshire Union Leader:

Tuftonboro town selectmen are asking a judge if they can charge a fee to process a Right-to-Know request, after a two residents demanded access to town emails, one seeking access to an estimated 11,000 emails.

In a complaint filed last week in Carroll County Superior Court, selectmen said the emails have to be reviewed to make sure they contain no confidential information — telephone numbers, private email addresses, even unseen metadata — that they must withhold under the state Right-to-Know law.

A hearing date has been set for Dec. 21.

Selectmen estimated it could cost between $6,400 and $12,800 to comply with the larger request, made by Melvin Village resident Robert McWhirter. They want to charge a 25-cent fee for each page subject to review.

For the past several years, state and local officials have complained about the cost to comply with records requests. State law allows local and state government to charge fees to cover only the actual cost of copying a record, not the cost of retrieving it or blacking out confidential information.

– See more at: http://www.unionleader.com/local-government/Tuftonboro-selectmen-want-to-charge-a-fee-to-fill-Right-to-Know-requests-12132016#sthash.UUeLMPmI.dpuf

Looks like Richard Sager, the selectmen’s attorney, didn’t need to ask the Court to clarify the law. All he needed to do was ask the Union Leader!

 

Selectmen Retaliate for Right to Know Requests — File Legal Action Against Tuftonboro Residents

In an effort to squelch the public’s right to know, the Tuftonboro selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) have had their attorney, Rick Sager, file a legal complaint in Carroll County Superior Court against me and against Bob McWhirter, for exercising our right to inspect governmental records. Both of us were visited on Sunday morning by a Carroll County Sheriff’s deputy who served us with the court documents. We must now appear before the court on December 21, 2016.

To briefly summarize: I have made a request, through New Hampshire’s Right to Know law (RSA 91-A), to inspect emails between the town and the local newspaper, the Granite State News.

Karen Koch, the administrative secretary, has informed me that there are 18 emails, consisting of 25 pages in all, that meet my request but that these pages contain what the town deems to be sensitive or confidential information. The selectmen say that they must make redactions to these emails before I may be allowed to inspect them. Why would it be legally or ethically permissible for the selectmen to exchange sensitive information with the newspaper that they then claim they cannot share with a member of the public? (I have asked, but the selectmen have provided no answer.)

The law unequivocally states in RSA 91-A:4 III states:

Each public body or agency shall keep and maintain all governmental records in its custody at its regular office or place of business in an accessible place.

An email that cannot be inspected because it contains confidential or sensitive information cannot be said to be “accessible” to the public. By redacting portions of an email, then, the selectmen would simply be making the email accessible, as required by law.

RSA 91-A:4 IV is just as straightforward on the question of fees charged to the public:

No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.

I have requested to inspect the records (emails). The law does not allow the selectmen to charge me for inspecting the records.
The selectmen claim that because they are going to redact parts of the emails, they can charge me $.25 per page. That is not allowed by law.

Rather than follow the law, the selectmen are spending taxpayer money to pay their attorney to retaliate against private citizens, in an effort to keep the public from exercising its right to know. Almost exactly a year ago, the Carroll County Superior Court ruled that the selectmen violated the right-to-know law. Why aren’t the selectmen working to increase transparency and accountability? Why don’t they welcome public input and oversight? Sadly, they appear to be doing their best to keep public records out of reach of the public.

Selectmen Seek to Illegally Charge Resident Thousands of Dollars to Inspect Governmental Records

In clear violation of the Right to Know law (RSA 91-A), the selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) are attempting to charge a Tuftonboro resident more than $2,750 to inspect governmental records.

I have made a Right to Know request for emails between the selectmen and the Granite State News. The administrative secretary, Karen Koch, has told me that there are 18 emails, or 25 pages, that meet my request. The selectmen are attempting to charge me $.25 per page, or $6.50, to inspect these records (emails), in clear violation of the law.

In an email to me on December 5, Richard Sager, the selectmen’s attorney, stated that the selectmen were seeking to charge me $6.50 for the 18 emails in order to set a precedent so that the selectmen can later charge Bob McWhirter for a separate, unrelated request that he also made through the Right to Know Law.

Sager wrote:

If this issue were only about a total charge of $6.50 for the requested Salmon Press/Elissa Paquette emails, I would pay for it myself just to be able to move onto something else. However, with the current pending request for approximately 11,000 emails, the Town and I are very guarded against setting any sort of precedent.

At $.25 per email, that would cost Bob McWhirter more than $2,750 (11,000 emails would be more than 11,000 pages, since many emails are multiple pages).

The law unequivocally states in RSA 91-A:4 IV:

No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.

The selectmen are claiming that because they must redact “sensitive” information from the emails, they must print out each email and use a heavy marker to obscure portions of the emails; then they claim they must take the additional step of photocopying the pages to ensure that the redaction is not see-through. This, they claim, represents a change in “format,” and therefore they can charge the public for inspecting these records.

The selectmen are mistaken. There is no provision in the law that allows a governmental body or agency to charge a fee for changing the format of a governmental record. Furthermore, even if there was such a provision, what the selectmen are doing by redacting sensitive information is merely making the governmental records available for inspection.

RSA 91-A:4 III states:

Each public body or agency shall keep and maintain all governmental records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the governmental records pertaining to such public body or agency shall be kept in an office of the political subdivision in which such public body or agency is located or, in the case of a state agency, in an office designated by the secretary of state.

And RSA 91-A:4 III-A states:

Governmental records created or maintained in electronic form shall be kept and maintained for the same retention or archival periods as their paper counterparts. Governmental records in electronic form kept and maintained beyond the applicable retention or archival period shall remain accessible and available in accordance with RSA 91-A:4, III. Methods that may be used to keep and maintain governmental records in electronic form may include, but are not limited to, copying to microfilm or paper or to durable electronic media using standard or common file formats.

While RSA 91-A:4 V states:

…any public body or agency which maintains governmental records in electronic format may, in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1.

An email that cannot be disclosed unless a member of the public pays a fee, in some cases amounting to thousands or even tens of thousands of dollars, is not accessible to the public for inspection. Governmental bodies and agencies must maintain governmental records in a manner that is accessible to the public. A governmental body or agency may not charge a fee for the inspection of a governmental record.

The law is not on the side of the selectmen. They should cease their unlawful obstruction of the public’s right to know.

How the Selectmen have Obstructed the Public’s Right to Know So Far

From: Maxim Ledoux
Sent: Thursday, November 17, 2016 10:50 AM
To: Tuftonboro Selectmen
Cc: Carolyn Sundquist; Lloyd Wood; Bill Marcussen

Dear Karen,

Please forward to me, electronically, all emails, and attachments to emails,

between

selectmen@tuftonboro.org

carolyn.sundquist@tuftonboro.org

lloydwood@tuftonboro.org

bill.marcussen@tuftonboro.org

adminasst@tuftonboro.org

and

elissapaquette1@gmail.com

tbeeler@salmonpress.com

vwillette@salmonpress.com

As well as any other email address ending in @salmonpress.com

From January 1, 2016 to today (November 17, 2016).

None of these potential emails can be construed to be confidential, so there will be no reason for you redact any information within the emails.

Kind Regards,
Max

 

From: Maxim Ledoux
Sent: Monday, November 21, 2016 12:41 PM
To: Tuftonboro Selectmen
Cc: Carolyn Sundquist;  Lloyd Wood; Bill Marcussen
Subject: Re: new RTK

Dear Karen,

These records fall under the category of “immediately available” under 91-A:4-IV. All you have to do is run a simple search, from each of the @tuftonboro.org email accounts, for the @salmonpress.com and elissapaquette1@gmail.com addresses. I can’t imagine that any correspondence between the town and the newspaper would contain sensitive information that needed to be redacted.

Please send these records to me today.

Kind Regards,
Max

From: Richard Sager [mailto:rick@sagerhaskell.com]
Sent: Monday, November 21, 2016 2:48 PM
To: Maxim Ledoux
Cc: Karen Koch
Subject: November 17 & 21 91-A requests

 

Dear Mr. Ledoux,

In regards to your emails to Ms. Koch today and November 17 (both reprinted below), I was asked to opine on whether your request is consistent with RSA Ch. 91-A.

You requested various emails between Salmon Press (essentially all emails ending in “@salmonpress”) and five specified emails ending in “@tuftonboro.org.” You also requested they be sent to you today (November 21, 2016) because you see no basis for delay, as “[n]one of these potential emails can be construed to be confidential.”

RSA 91-A:4, IV states, in pertinent part, “Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.” (Emphasis added)

Your interpretation of RSA 91-A:4, IV is inconsistent with NH law. See generally Brent v. Paquette, 132 N.H. 415 (1989), wherein the NH Supreme Court essentially concluded that any record is timely provided if done so within 5 days, regardless of whether your definition of “immediately available” takes into account that public employees have other duties besides complying with your 91-A requests (the court stating, “we hold that the trial court correctly concluded that Mr. Paquette complied with the statute when it found that the defendant sent the contracts within the statutory time period, after telling Mr. Brent he was too busy to retrieve them immediately.”). I have requested Ms. Koch provide you the records sought within 5 business days if possible. Given your initial request was made on November 17, and given the Thanksgiving holiday is the basis for the closure of the town offices on November 24 and 25, I calculate the expiration of the 5-day period is Monday, November 28.

Contrary to your assertion, if a record is not “confidential” does not mean there is no basis for reviewing and, if necessary, redacting information. For example, an email sent to or from an “@salmonpress” address to or from an “@tuftonboro.org” address may contain other personal email addresses and information which the Town is obligated to redact. Although you “can’t imagine that any correspondence between the town and the newspaper would contain sensitive information that needed to be redacted,” the town does not have the luxury of simply forwarding to you what you request without ensuring confidential AND personal information is appropriately redacted.

In summary, you can expect a response from the town no later than November 28 either providing you the emails in an unredacted form, or perhaps some or all of the emails in redacted form, or an explanation as to why the emails cannot be provided to you within the statutory 5 days.

Richard D. Sager
Tuftonboro Town Counsel

From: Tuftonboro Selectmen
Sent: Monday, November 28, 2016 3:21 PM
To: Maxim Ledoux
Subject: RE: November 17 & 21 91-A requests

 

Max,

Unfortunately I will not be able to send you the requested emails today.  I have an additional question for our attorney and he is not available today.  I should be able to respond to you tomorrow.

Karen

From: Tuftonboro Selectmen
Sent: Tuesday, November 29, 2016 1:58 PM
To: Maxim Ledoux
Subject: RE: November 17 & 21 91-A requests
Per your 91-A Request, please see attached.

Diane forwarded her adminasst@tuftonboro.org email correspondence to me to include in this response.
She has one email in which the information within the body of the email will need to be redacted to protect personal information and can’t be sent electronically.  The attachments are not confidential.  Rather than ask that you pay for the whole email including the attachments, I have included the attachments with this response.

Email correspondence with selectmen@tuftonboro.org
There are 4 emails in which the information within the body of the email will need to be redacted to protect personal information and can’t be sent electronically but I have included the attachments that were part of those emails.

The Selectmen do not have any email correspondence to fit the criteria that you asked for .

In total, we have 18 emails/26 pages of emails that have redactions needed.  This will cost $6.50.

Karen
Attachments:
fw-tuftonboro-2016-annual-meeting-3-4-16-falcy-to-elissa
fw-tuftonboro-2016-annual-meeting-attachment-tuftonboro-propaganda
cemetery-warrant-articledept-updates-8-8-16dept-updates-9-13
kmbt20020160614212302
kmbt20020161017215506
kmbt20020161017215548
kmbt20020161017215915
kmbt20020161017220202
kmbt20020161017220247
kmbt20020161017220322
kmbt20020161017220410
kmbt20020161017220427
kmbt20020161017220457
kmbt20020161017220516
kmbt20020161017220543

From: Maxim Ledoux
Sent: Wednesday, November 30, 2016 11:05 AM
To: Tuftonboro Selectmen
Cc: Carolyn Sundquist;  Lloyd Wood; Bill Marcussen
Subject: RE: November 17 & 21 91-A requests

Dear Karen,

Thank you for forwarding me the records below.

Please let me know when the other records are ready for me to inspect at the town office. I will come in and make my own copies, using my own devices. The selectmen are not allowed, by law, to charge me for inspecting the records on-site, regardless of whether you make additional (in my opinion, unnecessary) copies for the purpose of making redactions on physical pages.

Kind Regards,
Max

From: Tuftonboro Selectmen
Sent: Wednesday, November 30, 2016 11:16 AM
To: Maxim Ledoux
Subject: RE: November 17 & 21 91-A requests
Per your 91-A Request, please see attached.

Max,

I would need to print the emails in order for you to inspect them.  Therefore the charge of $0.25 per page would still be applicable.
Karen

From: Maxim Ledoux
Sent: Wednesday, November 30, 2016 12:44 PM
To: Tuftonboro Selectmen
Cc: Carolyn Sundquist;  Lloyd Wood; Bill Marcussen
Subject: RE: November 17 & 21 91-A requests

Dear Karen,

Unfortunately, the statement you made in your last email (“I would need to print the emails in order for you to inspect them.  Therefore the charge of $0.25 per page would still be applicable.”) is not legally permissible.

The law is very clear:

RSA 91-A:4 Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected…”

RSA 91-A:4 IV:  “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”

If the selectmen insist on charging me to inspect a public record, in violation of the clear reading of the law, then I see no alternative than to file a lawsuit against them for flagrant and wanton violation of the law. Given the board’s previous multiple violations, as proven in Carroll County Superior Court, I will ask the judge to levy the maximum personal penalties against each board member, $2,000 per person. In addition I will ask the judge to hold the selectmen personally liable for any attorney’s fees that the town incurred as a result. They cannot claim this time that they did not know they were violating the law.

It is not acceptable that the board continues to try to throw roadblocks in front of my right to inspect these records. I have requested the records in the format that they currently exist: electronically. It is the selectmen who are insisting that the redactions must be made in a different format: on paper pages.

The law is clear. You cannot charge me for inspecting a public record. That you are printing the records for me to inspect is irrelevant. I have not asked you to print the records. I’d be happy to inspect the records on your computer.

It is not necessary for you to print the records. The Attorney General’s Memorandum on the Right to Know law (http://doj.nh.gov/civil/documents/right-to-know.pdf) makes it clear, on page 41-42, that electronic redaction using Adobe Acrobat (version 8 and above) is an option. It is punitive for the selectmen to insist on changing the format from electronic to paper, when I have not asked them to change the format, so that they can try to charge me a fee.

It is entirely possible, and legally permissible, for you to redact the records electronically using Adobe Acrobat 8. Here is a how-to video, one of thousands of such videos that are available on YouTube:

The selectmen are being unreasonable by insisting on creating unnecessarily-printed paper records. I believe I am being reasonable in saying that, given the selectmen’s intransigence, I will compromise and come in with my own scanner and scan the unnecessarily-printed pages to my computer. The goal, for me, is to inspect the records, despite the many obstacles the selectmen have repeatedly attempted to place in my way.

What is the selectmen’s goal? Why are they so intent on making it as hard as possible for me to inspect these records?

I would prefer not to go to court, but if the selectmen remain unreasonable, then what remedy is there? The only mechanism the legislature has provided for enforcing the law is through a lawsuit.

Previously this year the selectmen have violated state and federal law:

1. by usurping the cemetery trustees’ power to make decisions concerning the cemeteries,
2. by engaging in unconstitutional viewpoint discrimination by allowing Elissa Paquette to ask questions during their meetings while not allowing questions from anyone else, and
3. when Chairman Carolyn Sundquist unilaterally shut down all questions during meetings, without having been granted the authority to do so by a recorded vote in public session of a majority of the members of the board of selectmen.

In these three examples, the selectmen showed that they can be reasonable. When I pointed out their violations, they acknowledged they had broken the law and changed their behavior. I hope they will be reasonable this time, as well, and stop trying to illegally charge me punitive fees for inspecting public records.

Please let me know when will be a convenient time for me to inspect the records and to use my own devices to create copies. The rest of today is, in fact, not convenient for me, so the earliest convenient time for me would be tomorrow afternoon, if that’s convenient for you.

Kind Regards,
Max

From: Tuftonboro Selectmen
Sent: Thursday, December 1, 2016 8:27 AM
To: Maxim Ledoux
Subject: RE: November 17 & 21 91-A requests

Max,

I have been advised that you will have an answer regarding your request by the end of next week.

Karen

From: Maxim Ledoux
Sent: Thursday, December 1, 2016 11:29 PM
To: Tuftonboro Selectmen
Cc: Carolyn Sundquist;  Lloyd Wood; Bill Marcussen
Subject: RE: November 17 & 21 91-A requests

Dear Karen,

Who advised you? Why will it take 6 business days for the selectmen to comply with the law? Please tell me who and why.

That seems like an unreasonably long delay. Tomorrow (Friday) would be more convenient for me. If that is not convenient for you, then would Monday afternoon or Tuesday morning be convenient for you?

I am being as reasonable as possible, looking for a mutually convenient time for me to inspect the public records at the town offices, but the selectmen are seriously trying my patience. They have stalled, attempted to intimidate me with their attorney, and, apparently, instructed you to violate the law yesterday by illegally charging me to inspect public records.

Let me remind you, Karen, that you are just as responsible as the selectmen for complying with the law: “91-A:8 IV. If the court finds that an officer, employee, or other official of a public body or public agency has violated any provision of this chapter in bad faith, the court shall impose against such person a civil penalty of not less than $250 and not more than $2,000. Upon such finding, such person or persons may also be required to reimburse the public body or public agency for any attorney’s fees or costs it paid pursuant to paragraph I.”

Please confirm, today, a mutually convenient appointment for me to inspect the records, either tomorrow (Friday the 2nd of December) or Monday (December 5) afternoon or Tuesday (December 6) morning.

Kind Regards,
Max

From: Maxim Ledoux
Sent: Thursday, December 1, 2016 4:31 PM
To: Tuftonboro Selectmen
Cc: Carolyn Sundquist;  Lloyd Wood; Bill Marcussen
Subject: RE: November 17 & 21 91-A requests

Dear Karen,

It’s after 4PM, so you’ve now left work. I’m disappointed that you chose not to reply to me today. I hope that you will let me know tomorrow (Friday — when you’re reading this, I assume) when is a convenient time for you for me to come in and inspect the records. I have suggested three different days and times that would be convenient for me in an attempt to accommodate your schedule so that we can agree to a mutually convenient time. If none of the three times I’ve put forward are convenient for you, please suggest other times. If you suggest more than one possible time for an appointment, that will increase the odds that it will be convenient for me as well as for you.

Kind Regards,
Max

 

From: Maxim Ledoux
Sent: Friday, December 2, 2016 4:24 PM
To: Tuftonboro Selectmen
Cc: Carolyn Sundquist;  Lloyd Wood; Bill Marcussen
Subject: RE: November 17 & 21 91-A requests

Dear Karen,

You chose not to respond to my RSA 91-A request again today (Friday, December 2). You have [now] ignored for two days my reasonable suggestion of three different times when we could have an appointment for me to inspect the records. I first requested to review these records on November 17.

I know you were in the office today because I received the notice of the agenda for Monday. I am on the email distribution list for that.

Kind Regards,
Max

From: Richard Sager
Sent: Monday, December 5, 2016 9:44 AM
To: Maxim Ledoux
Cc: Karen Koch
Subject: RE: November 17 & 21 91-A requests

Dear Mr. Ledoux,

Your recent email sent December 1 (reprinted below) has been forwarded to me for response.

I understand you are seeking to review the Salmon Press/Elissa Paquette emails either in print or on the computer screen at the town hall. However, the problem of redaction still remains.

If you were entitled to review the requested emails on a town hall computer screen (I am not clear you have this right, but there remains a lot to resolved with regard to emails and the right-to-know law in New Hampshire), the emails would still need to be first reviewed, and then redacted to ensure all personal information is removed. If you are to review the emails in paper form, such is, to my understanding, a change in format under RSA 91-A:4 and thus the town is entitled to charge for the cost of the copy, but cannot charge for labor, etc. in making the copy available.

As I may have stated previously, neither the Town nor I are comfortable with simply amending personal information in an email by replacing it with asterisks or other characters, and then forwarding to you as is. This is because there is no way the Town or I can determine if the information that is replaced is somehow preserved as meta-data (or whatever the correct term would be), thereby exposing the town to liability for not properly redacting the personal information. Thus, the only way the Town can be assured personal information is to be properly redacted (in those emails that actually have been reviewed and confirmed to have personal information), is to (1) use Adobe Acrobat to remove the personal information, and then delete the meta-data (which of course requires a change in format), or (2) print the email, redact the personal information with a marker, and then photocopy the redacted email to ensure no “bleed through” of the redacted sections. I guess a combination of (1) and (2) is also a possibility. Regardless, the procedures outlined constitute a change in format, and the town remains entitled to charge the rather nominal 25 cents per page.

If this issue were only about a total charge of $6.50 for the requested Salmon Press/Elissa Paquette emails, I would pay for it myself just to be able to move onto something else. However, with the current pending request for approximately 11,000 emails, the Town and I are very guarded against setting any sort of precedent.

I hope you will reconsider your position, and instead provide the Town the rather nominal payment of $6.50 so as to allow the Town to provide you with the requested Salmon Press/Elissa Paquette emails. You may contact Karen Koch directly in order to make the arrangements.

Richard Sager
Tuftonboro Town Counsel

 

From: Richard Sager
Sent: Monday, December 5, 2016 9:58 AM
To: Maxim Ledoux
Cc: Karen Koch; Carolyn Sundquist; Bill Marcussen; Lloyd Wood
Subject: RE: November 17 & 21 91-A requests

Mr. Ledoux,

I forgot to also mention the Town’s desire that any further communication from you on this issue be directed to me. I assume if you choose to correspond with Karen or the selectmen directly, such correspondence will be forwarded to me for response.

Richard Sager
Tuftonboro Town Counsel.

Richard D. Sager, Esquire
Sager & Haskell, PLLC
5 Courthouse Square – PO Box 385
Ossipee, New Hampshire 03864
e-mail: rick@sagerhaskell.com

From: Maxim Ledoux
Sent: Monday, December 5, 2016 2:35 PM
To: Carolyn Sundquist; Bill Marcussen; Lloyd Wood
Subject: RE: November 17 & 21 91-A requests

Dear Carolyn, Bill, and Lloyd,
The law does not allow you to charge the public to inspect governmental records.

The law is very clear:

RSA 91-A:4 Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected…”

RSA 91-A:4 IV:  “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”

Furthermore, RSA 91-A:4 III: “Each public body or agency shall keep and maintain all governmental records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the governmental records pertaining to such public body or agency shall be kept in an office of the political subdivision in which such public body or agency is located or, in the case of a state agency, in an office designated by the secretary of state.”

By attempting to illegally charge the public to inspect governmental records, you are by definition making the governmental records inaccessible. If members of the public are forced to pay punitive charges amounting to hundreds or possibly thousands of dollars in order to inspect governmental records, then the governmental records are not accessible to the vast majority of the public, save for wealthy individuals.

To reiterate that you are clearly violating the law and should immediately stop doing so:

New Hampshire Attorney General Joseph Foster issued a memorandum dated March 20, 2015, that states in part, on page 19: “During the regular or business hours of all public bodies and public agencies, the public has a right to inspect and copy all non-exempt governmental records in the possession, custody, or control of the body or agency. RSA 91-A:4, I. Public bodies and public agencies must maintain their public records in a way that makes them available to the public. NHCLU v. City of Manchester, 149 N.H. 437 (2003).”

The attorney general’s memorandum on page 41 also states, as I previously informed you in an email sent on November 30, 2016, at 12:44PM, that “Software programs, such as Adobe Acrobat version 8 or higher, provide an electronic redaction capability.” You could provide the records to me in electronic format, but you are choosing not to do so.

The attorney general is a higher authority than Rick Sager, who, as we are all aware, did not know the law about auctioning tax-deeded properties. Given this proven lapse in judgement on Sager’s part when it comes to the law, should you take his advice, or follow the guidelines published by the state’s attorney general?

You may not charge me to inspect a governmental record. You should therefore confirm with me a mutually convenient time for me to come to the office to inspect the governmental records that I have requested to inspect. I had previously suggested last Friday, today, and tomorrow morning as convenient times for me. Since two of those times have passed, I suggest tomorrow (Tuesday) between 11AM and Noon, Wednesday between 1PM and 2PM, or Thursday between 2PM and 3PM.

Please immediately confirm one of those times, or suggest alternate times.

As for directing all of my communication to your attorney: No.

Kind Regards,
Max

 


The selectmen continue to insist on illegally charging me to inspect records that they are required by law to maintain in a manner that is accessible to the public. They have refused to confirm an appointment with me to inspect governmental records during normal business hours.

The public’s right to access public documents is protected not only by RSA 91-A (Right to Know Law), but also in the New Hampshire Constitution in Part I, Article 8:

All power residing originally in, and being derived from the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.

The Right to Know Law:

RSA 91-A:4 Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected

RSA 91-A:4 IV:  No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.

RSA 91-A:4 III. Each public body or agency shall keep and maintain all governmental records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the governmental records pertaining to such public body or agency shall be kept in an office of the political subdivision in which such public body or agency is located or, in the case of a state agency, in an office designated by the secretary of state.

RSA 91-A:4 III-a. Governmental records created or maintained in electronic form shall be kept and maintained for the same retention or archival periods as their paper counterparts. Governmental records in electronic form kept and maintained beyond the applicable retention or archival period shall remain accessible and available in accordance with RSA 91-A:4, III. Methods that may be used to keep and maintain governmental records in electronic form may include, but are not limited to, copying to microfilm or paper or to durable electronic media using standard or common file formats. 

RSA 91-A:4 V. In the same manner as set forth in RSA 91-A:4, IV, any public body or agency which maintains governmental records in electronic format may, in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1.

HB606 Passes Legislature; Awaits Governor’s Signature; Prohibits Charging for Electronic Records

Last week the New Hampshire House and Senate agreed to a conference committee amendment to HB606 that adds language to RSA 91-A (the “Right to Know” law) that clarifies that no money may be charged for inspecting or delivering (i.e., emailing) electronic copies of public documents.

91-A 4:IV No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.

The bill now goes to Governor Hassan to be signed into law.

The Tuftonboro selectmen will need to update the town’s official policy. However, since the town has not been charging any fees for the delivery of electronic copies, in practice nothing will need to change.

Amendment to Right to Know Law Clears Conference Committee

A conference committee on HB606 has issued a report with an amendment to HB606. This bill clarifies that no fees may be charged to inspect or deliver records when no copies are made.  The amendment…

Source: HB606 Amended by Conference Committee

This is of interest to Tuftonboro residents because the selectmen are currently planning on revising the electronic copy policy in order to comply with the recent New Hampshire Supreme Court decision in Green v. SAU 55. Selectman Carolyn Sundqvist stated at a recent board meeting that though the policy has not yet been updated that the town would be comply with the decision.

The Supreme Court in Green does not directly address whether municipalities may charge for electronic copies, only states that if a record exists in electronic form then the municipality must make the record available electronically. The Court did note, however, that RSA 91A, the “Right to Know” law, allows municipalities to charge only the actual cost of making a copy of a record and that the cost of making an electronic copy is almost nothing. Quoting another court, the New Hampshire Supreme Court wrote, “The cost of copying and transporting electronically stored information is virtually nil.”

The New Hampshire legislature appears to be recognizing this reality by moving closer to expressly forbidding municipalities from charging for electronic copies of public records.

Tuftonboro has already adopted this in practice, and the official policy will soon follow. I have obtained several public records electronically without charge since the New Hampshire Supreme Court’s decision in Greene.