Access to Electronic Records Under the Right to Know Law

To: Public and Municipal Affairs Committee: Senator Gray, Senator Ward, Senator Birdsell, Senator Kahn, Senator Woodburn
CC: Senator Guida, Senator Bradley

Dear Esteemed Members of the Senate Public and Municipal Affairs Committee,

My name is Max Ledoux, of Tuftonboro, and I’m writing to ask you to support SB 395, relative to access to electronic records under the right-to-know law.

In November 2016 I made a Right to Know request to the Tuftonboro board of selectmen for governmental records, which happened to be emails. I specifically requested the records be sent to me electronically. Despite this, the board told me it would cost me $.25 per page for an email chain that contained 26 pages (or $6.50).

When I refused to pay the fee, which I told them I believed to be illegal, the board took the remarkable step to sue me (and another town resident who had also requested electronic records). We were forced to hire an attorney to defend ourselves in what turned out to be an eight-month-long legal battle. The selectmen spent more than $20,000 in taxpayer money against us. In other words, they spent more than 3,000 times the amount of money they were trying to collect from me ($6.50).

Eventually, in August 2017, Carroll County Superior Court ruled the selectmen couldn’t charge us a fee for electronic documents, because there is no “actual cost” to providing electronic records (Tuftonboro vs. Ledoux & McWhirter).

RSA 91-A as currently written, and as interpreted by the courts, already prohibits municipalities from charging for electronic records. However, as proven in my case and others in recent years (such as Green vs. SAU 55), government entities continue to try to charge citizens for electronic records. And in some cases, like  Taylor vs. SAU 55, the Supreme Court has allowed government entities to charge not for the actual records but for providing them. The effect is chilling. Although my town was trying to charge me only $6.50, my co-defendant was facing a potential fee of more than $3,000 for the records he was seeking. If a citizen must pay thousands of dollars to access public records, then those records are not really open.

SB 395 would make clear statutorily that government entities can not charge for electronic copies, but would not change how the courts have already interpreted the existing Right to Know law. I hope this will spare other New Hampshire citizens from the expense and intimidation that was brought against my co-defendant and me, just for exercising our constitutional Right to Know.

Thank you,
Max Ledoux

Max Ledoux

Author: Max Ledoux

I've lived in Tuftonboro since 2014. I grew up in Lisbon Falls, Maine (the Moxie capital of the world). I run

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