Tom Beeler, the editor of the Granite State News, added an “editor’s note” to a letter he printed two weeks ago from Molly Powell (my wife). He wrote: “What is being requested is not ‘a record’ or ‘a document’ but every email sent or received by the town—an estimated 11,000—some of which contain very private information that no one gave permission for just anyone to see.”
RSA 91-A:1-a III defines “governmental records” as “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.” This includes “any written communication or other information, whether in paper, electronic, or other physical form.”
And RSA 91-A:1-a IV defines “information” as “knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.”
That an email is a government record is not in question.
The City of Manchester, for instance, includes the following 91-A disclaimer in every email sent from the @manchesternh.gov domain: “The Right-To-Know Law (RSA 91-A) provides that most e-mail communications, to or from City employees and City volunteers regarding the business of the City of Manchester, are government records available to the public upon request. Therefore, this email communication may be subject to public disclosure.”
Indeed, the New Hampshire Secretary of State made a Right to Know request last month to the City of Manchester for all communications about a pilot program for electronic poll books. Essentially, the Secretary of State is requesting 18 months’ worth of emails. That is far more than Bob McWhirter has requested. The selectmen estimate that 11,000 emails would be responsive to Bob’s request, but this estimation has not been in any way substantiated. Bob refined his original request, however, drastically reducing the number of emails that would be responsive—11,000 was an estimate that is no longer relevant.
Tom thinks it matters whether the records contain “very private information that no one gave permission for just anyone to see.”
In Mans v. Lebanon School Board, the New Hampshire Supreme Court ruled that concern for “invasion of privacy” should not be so broadly interpreted as to defeat the purpose of the right-to-know statue. Furthermore, the Supreme Court has ruled repeatedly that “whether information is ‘confidential’ must be determined objectively, and not based on the subjective expectations of the party generating it.” (See Lamy v. N.H. Publ Util. Comm’n, among other cases.)
But Bob and I are not disputing whether certain parts of the emails we have requested will be redacted. The issue is that the selectmen are attempting to illegally charge us a fee to do the redaction. However, there is nothing in the statute that allows the government to charge a fee for the labor of responding to a Right to Know request. As Tuftonboro Selectman Carolyn Sundquist herself stated on October 17 in a Selectmen’s meeting and on November 1 in a Budget Committee meeting, we already pay the staff’s salary, and responding to Right to Know requests is part of their “normal work schedule.” That’s a direct quote from Carolyn, on November 1 (the video starts at 58:52, Carolyn’s comment is at 1:00:20):
Thank you to everyone who has very generously contributed to our legal defense fund. Through the kindness of fellow citizens, we have raised $2,215 so far to fight the selectmen’s lawsuit against us. The hearing is on January 27 at 9 AM at Carroll County Superior Court in Ossipee.