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.
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.