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
Tuftonboro

Keene Sentinel Editorial: Monadnock officials owe district citizens some answers

Local government officials don’t want the public to know how taxpayer money is to be spent. It sounds familiar, but it’s not the Tuftonboro board of selectmen (Lloyd Wood, Bill Marcussen, Chip Albee) or the Budget Committee Chairman (Carla Lootens). This Keene Sentinal editorial from last month is about the Monadnock Regional School District.

Sentinel Editorial

Open, accessible, accountable and responsive: Monadnock officials owe district citizens some answers

Dec 12, 2017
Governing is difficult, tedious work, often not pleasant, but necessary. Those who give their time and energy to it are, generally, to be thanked. But there are those who revel in holding even a little power over their fellow citizens; in being on the inside, with information others lack; and in playing a disproportionate role in determining the course of our communities.

And sometimes, they get so caught up in that role that they forget why they’re really there, and that they serve at the will of the people.

“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.”

These words, from Article 8 of the N.H. Constitution’s Bill of Rights, are the underpinning of our state’s Right-to-Know Law. The purpose of the law is to hold public officials — both elected and appointed — accountable by allowing the public access to not only the results of government, but also the process. Thus, officials are bound, with few exceptions, to conduct official business in public, to answer questions posed by the public regarding their actions, and to make available any documents or records that would inform the public about the causes and effects of those actions.

It is the mechanism by which officials at every level of government — from the governor to state lawmakers to county commissioners to those elected or appointed to run our cities, towns and schools — must adhere to the principle that as the wording of the Constitutional passage above notes: All power resides in, and is derived from, the people.

The great danger of a government unfettered by such public scrutiny isn’t only that those in power might enrich themselves at the public’s expense or pass laws, rules and policies detrimental to the general citizenry (or specific subgroups) without opposition. Equally worrisome is that those in power might, if unchallenged, forget they serve at the public’s bidding and for the public’s benefit, not their own.

Which brings us to the Monadnock Regional School District’s latest flap — over Business Administrator Jane Fortson and the public’s right to information on her absence and, in particular, how the district’s finances are being handled during it.

Fortson, The Sentinel learned last week, was recently suspended, with pay. Inquiries to almost all of the district’s 13 board members and Superintendent Lisa Witte were rebuffed.

The Right-to-Know Law does give public bodies latitude in discussing certain personnel matters. Specifically, officials can refuse to reveal information that would potentially harm a person’s reputation, and they can refuse comment on disciplinary actions. Either might account for Witte and board members declining comment on why Fortson was suspended.

But those exemptions don’t extend to discussing the state of the district’s finances. So, when asked who is handling the business operations in Fortson’s absence — an absence that’s occurring in the midst of constructing the district’s 2018-19 budget that will hit every taxpayer’s wallet and affect every school child’s education — there is no excuse for not answering directly.

Yet board members have repeatedly done so, one even indicating she’s been told that to comment at all would leave her open to being removed from the board. And Witte has, after first declining comment, offered only a vague statement that acknowledges she’s ultimately responsible for the proper operation of all district functions “working with our competent and dedicated staff.” Well, we’d hope so. But that still doesn’t reveal who’s actually handling the $32.7 million in public money entrusted to the school administration.

One proper question for the board and superintendent surely is whether the suspension has to do with those public funds. Thus far, only school board member Neil Moriarty has been willing to comment on that, and only to say the suspension “has nothing to do with financial issues.”

More troubling still is the behavior of at least one board member, who gloatingly told a Sentinel reporter during last Tuesday’s meeting that she wouldn’t be able to find out anything, because the board had just voted to seal the minutes of its nonpublic session on the matter.

Such taunting, childish actions convey more than disdain for the reporter. They reveal a contempt for the public and its right to know how its money is being spent and how decisions regarding its children are being made.

Karen Koch Suggestions Were “Potentially Violative of 91-A”

In an interesting line item on his September invoice, the selectmen’s attorney Richard Sager billed Tuftonboro taxpayers $73.50 for “Email from/to Karen with details on the redaction process (and why her suggestions are more time consuming or potentially violative of 91-A).

It would be interesting to find out what Karen, the selectmen’s administrative secretary, suggested that Sager thought was “potentially violative of 91-A.” RSA 91-A is the Right to Know law, and the selectmen have spent much of the past year, as well as more than $20,000, attempting to make it harder for the public to gain access to public documents.

This is not the first “suggestion” Karen has made that can be considered “potentially violative of 91-A.”

In June of 2016, Karen Koch suggested in an email to Bob McWhirter, that she would not comply with the Right to Know law if she didn’t like the way requests were made. Karen wrote:

I will be glad to respond to legitimate Right to Know requests that are requested in a respectful manner. If requests are neither legitimate Right to Know requests or asked in an aggressive manner, I will refrain from responding. [Emphasis added.]

There is no “ask politely” requirement in RSA 91-A. If Karen ever did refuse to respond to a Right to Know request because, in her subjective opinion, it was “asked in an aggressive manner,” then that would be concerning — and “potentially violative of 91-A.”

Selectmen Continue to Impede Right to Know

At their October 16, 2017, meeting the board of selectmen (Lloyd Wood, Bill Marcussen, and Chip Albee) discussed adding an extra layer of bureaucracy to Right to Know requests. The Granite State News reported:

[Selectman Chip Albee] suggested that members of the public seeking information that is not readily available fill out a form stating their specific request, which will then be considered by the board.

According to the draft minutes of the meeting:

The Selectmen discussed handling of Right to Know requests. If information or a document is not readily available, a proper Right to Know request is to be submitted to the Selectmen for their review before information is provided.

I sent the minutes to David Saad, the president of Right to Know NH* and a member of the recently convened Legislative Commission to Study Processes to Resolve Right-to-Know Complaints, to get his perspective. David wrote back, saying: “Nothing in the Right to Know law requires that you fill out a form, nor does it require the requesting parties to identify themselves. The selectmen should not take any action that would defeat or delay disclosure required by the Right to Know Law.”

According to RSA 91-A:4 IV, a “proper Right to Know request” is merely a “reasonably described” request:

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.]

The selectmen have no statutory authority to determine what a “proper” Right to Know request is or is not.

Unfortunately, the Tuftonboro selectmen’s secretary, Karen Koch, has also taken it upon herself to improperly interpret the law.

In June of 2016, Karen Koch wrote an email to Bob McWhirter, responding to a question he’d asked. Karen wrote:

I will be glad to respond to legitimate Right to Know requests that are requested in a respectful manner. If requests are neither legitimate Right to Know requests or asked in an aggressive manner, I will refrain from responding. [Emphasis added.]

There is no “ask politely” requirement in RSA 91-A. In an ideal world, we would all be polite. However, if Karen ever did refuse to respond to a Right to Know request because, in her subjective opinion, it was “asked in an aggressive manner,” then that would be concerning — and clearly illegal.

In fact, Karen did “refrain from responding” to a Right to Know request I made on December 12, 2016, and it’s not clear why. My request was for emails concerning the cancelled auction of town-owned properties that was to have been conducted on October 15, 2016, by the selectmen’s attorney, Richard Sager. Although RSA 91-A:4-IV, as quoted above, requires a response within five business days, I never received any acknowledgement whatsoever from the selectmen or from Karen. On October 4, 2017, I renewed my request. The selectmen have not yet provided me with the emails.

*I am a member of RTKNH. I joined after the selectmen sued me last year when I made a Right to Know request.

Update: I updated the first paragraph of this post because the selectmen have not yet made any decision about requiring the use of a form for Right to Know requests, but instead discussed it.

New Hampshire Moves One Big Step Closer to Enforcing Right to Know

From Right to Know New Hampshire:

FOR IMMEDIATE RELEASE
Concord, NH
Nov. 2, 2017 –

Citizens in New Hampshire currently have little recourse but to resort to the courts to enforce their right to know when public bodies withhold public information or violate Open Meeting laws. Today New Hampshire took a big step forward in rectifying a situation that has ranked us 49th in the country for public access to information by the Center for Public Integrity.

On Tuesday October 31, 2017, at the Legislative Office Building in Concord, the Legislative Commission to Study Processes to Resolve Right-to-Know Complaints finalized its report for submission to the House, Senate, and Governor. It recommended the establishment of a Citizens’ Right to Know Appeals Commission to oversee an ombudsman. The report states “In lieu of filing a petition in the Superior Court under Chapter 91-A, the citizen may appeal to [the] Commission whose administrator will immediately refer the matter to the Ombudsman.” The ombudsman “acquires and reviews materials, conducts interviews if necessary, and issues a ruling within 30 days following receipt of the parties’ submissions…”

Right to Know New Hampshire President, David Saad, was one of the 13 study commission members. “I’m very pleased with the outcome of the study commission. New Hampshire very much needs a way of resolving right to know complaints without putting citizens through the cost and burden of taking their case to Superior Court. I urge the legislature to support the legislation that will follow this report and I firmly believe that the costs of an ombudsman will be more than offset by savings to the citizens, court system, and public bodies.”

Mr. Saad went on to praise the conscientious work of all the members of the study commission. “Under the leadership of Chairman Senator Bob Giuda, all members worked very well together as we were united in our mission to develop a process to help citizens resolve right to know grievances faster, easier, and cheaper. We had very productive debates which led, I believe, to a promising outcome, if it passes in the legislature.”

Right to Know NH is a non-partisan association of citizens committed to advancing government transparency.

I joined Right to Know NH after the Tuftonboro selectmen sued me when I made a Right to Know request. The selectmen ended up spending around $20,000 in taxpayers’ money trying to make it harder for citizens to get access to public records, but they lost their lawsuit.

Pictured: members of the Legislative Commission to Study Processes to Resolve Right-to-Know Complaints.

Richard Sager Calls Bob McWhirter a “Puppy Dog,” Tells Him “Get a Life”

Richard Sager, of Sager & Smith in Ossipee, represented the Tuftonboro board of selectmen in their failed lawsuit against Bob McWhirter and me. The selectmen sued us after we made Right to Know requests, because they thought that they should be able to charge us a fee even though the law states clearly that they cannot. Carroll County Superior Court Judge Amy Ignatius ruled on August 8 that the law, which states that “no fee shall be charged,” in fact means that “no fee shall be charged.” Despite this, as of today, the selectmen still have not provided us with any of the emails we requested. Bob made his Right to Know request almost a year ago, on October 17, 2016.

The selectmen have chosen to pay Sager $175 an hour to process the Right to Know requests, even though the town office staff could do it and we already pay their salaries.

Today, instead of providing us with the emails we have a constitutional right to see, Sager instead resorted to calling Bob names, and he also misrepresented the facts about the case. It’s not clear whether he will bill the town $175 an hour for his time composing this Facebook post:

The selectmen’s administrative secretary, Karen Koch, submitted written testimony to the court prior to the hearing that the number of emails responsive to Bob’s Right to Know request was between 740 and 760, not 13,000. My request for emails between Tuftonboro.org email addresses and the Granite State News covered 25 emails, not 13,000. I don’t know how many emails were responsive to my other request for Carolyn Sundquist’s emails between January 1, 2016, and February 29, 2016, because the selectmen never told me.

We did postpone the original hearing. The selectmen tried to push us into court right before Christmas. We had to hire an attorney and prepare a defense. We also both had plans for Christmas with family. Once we hired an attorney, the selectmen suddenly lost their zeal to see us in court. It was the selectmen who repeatedly postponed the hearing from January to June.

Richard Sager should apologize to Bob, and the selectmen should re-evaluate their relationship with him. Not only does he frequently act unprofessionally, but he has now lost several cases for the town in Superior Court.

Selectmen’s Noxious Lawsuit, Part of National Trend

“These lawsuits are an absurd practice and noxious to open government.” That’s how the Associated Press quotes University of Kansas journalism professor Jonathan Peters, speaking about a troubling trend in recent years of government bodies suing citizens who seek disclosure of public documents through open-records laws. You can read the whole article at AP (“Governments turn tables by suing public records requesters”).

I know all about these types of absurd lawsuits. Last year the Tuftonboro board of selectmen (at the time: Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) sued me and Bob McWhirter when we requested to inspect government records. They spent around $20,000 (and counting) in a vain attempt to charge us $.25 per page to inspect the records, even though New Hampshire’s Right to Know law states that “no fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” The selectmen’s attorney, Richard Sager, argued in court that the law doesn’t make sense because, if read literally, it meant that the selectmen couldn’t charge us a fee. And they wanted to charge us a fee.

They lost their lawsuit when Carroll County Superior Court Judge Amy Ignatius ruled that they couldn’t charge us a fee. But as the AP quotes Mike Deshotels in its article, “You can lose even when you win.” Deshotels was sued by the Louisiana Department of Education when he requested school enrollment data. The DOE lost in court, like the Tuftonboro selectmen, but Deshotels incurred legal costs, like Bob and me, defending himself from an attack on his right to know what his government was doing.

These types of abusive lawsuits are happening all over the country, according to the AP. But in Michigan, the state House of Representatives unanimously (108–0) passed a bill this spring that would prohibit government bodies from suing citizens who are requesting documents. The bill needs to be passed by the Michigan Senate before becoming law.

Carolyn, Lloyd, Bill, and Chip spent $20,000 of your money in an effort to make it more difficult to get access to public records. Would they have done that if it was their own $20,000? It’s easy to spend other people’s money.

New Hampshire should make it illegal for government bodies to sue citizens who are requesting documents.

Selectmen Lose Right to Know Suit, at Cost to Taxpayers of Almost $20,000

The selectmen have lost their lawsuit against Bob McWhirter and me. Carroll County Superior Court Judge Amy Ignatius issued her decision on August 8, finding that the selectmen cannot charge us a fee to inspect governmental records, whether they be electronic or paper. This is not an earth-shattering decision. I don’t mean to disrespect Judge Ignatius’s judicial ability, but the law states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records whether they be paper, electronic, or other format.” I honestly have no idea why the selectmen thought that meant they could charge us a fee to inspect governmental records.

But they gave it the old college try, anyway, and spent almost $20,000 of taxpayer money in the process.

The board at the time was Carolyn Sundquist, Bill Marcussen, and Lloyd Wood. Carolyn Sundquist has since left the board.

The selectmen have 30 days to appeal the decision.

David Taylor of Right to Know New Hampshire, summarizes the decision here:

The Town of Tuftonboro, N.H. lost its effort to charge $0.15 per page to redact emails provided electronically. Judge Amy Ignatius in Carroll County Superior Court ruled that redacting emails electronically does not substantively change their format nor does it incur actual costs that can be charged. The town had not sought to be reimbursed for the time it takes employees to redact the emails, and they provided no evidence of other expenses.

Unlike most Right-to-Know Law cases where a citizen sues for access to records or meetings, in this case the Town of Tuftonboro took 2 of its residents to court. The town basically wanted the court to declare whether the town could charge for redacted records. Since the citizens had to respond to the preemptive lawsuit by hiring a lawyer, they sought help from supporters. The town sought for details about those supporters, but the court also denied that request. In spite of the burden imposed by the town on the citizens, the court did not award attorney’s fees or court costs because the issue of redaction costs was not settled law and therefor the town did not “know or should have known” it was improperly denying access. The town has 30 days until September 7, 2017 to appeal. The full court order is available here.

Richard Sager’s Haul from Suing Residents for Exercising Rights: $16,336.12

The selectmen have paid Richard Sager, of Sager & Smith in Ossipee, NH, $16,336.12 in taxpayer money from the residents of Tuftonboro to sue Bob McWhirter and me for the supposed crime of exercising our right to know under RSA 91-A and the New Hampshire Constitution, a review of Sager’s invoices reveals. The $16,336.12 that the selectmen handed over to Sager does not include charges for an “expert” witness, Patrick Harvie, whom Sager brought in at $125 an hour to explain to the court that emails have metadata, a fact we never contested and that was irrelevant to the case.

In November, 2016, I made a Right to Know request to inspect some emails. The selectmen attempted to charge me $6.50 to inspect the emails, even though the law unequivocally states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” When I refused to pay the $6.50, the only amount they ever tried to charge either Bob or me, the selectmen (at that time Carolyn Sundquist, Bill Marcussen, and Lloyd Wood) sent a sheriff’s deputy to our doors on a Sunday morning to serve us each with a lawsuit: Town of Tuftonboro vs Bob WcWhirter & Maxim A.A.L Blowen-Ledoux. (I have a weird name, so sue me. Wait, no; don’t. That’s just an expression!)

$16,336.12 for $6.50.

Think that one through the next time Selectman Bill Marcussen says he has a fiduciary responsibility to the town.

Sources:
Sager invoices November 2016 to May 2017
Sager invoices June 2017
Sager RTK fees

Pandemonium at Planning Board as Selectmen Sack Sawyer

Chris Sawyer is scheduled to meet with the selectmen today, likely to discuss why they removed her from the planning board earlier this month. Chris was the chairman of the planning board and had asked to be reappointed to another term on the board when her term expired at the end of June. The selectmen decided not to reappoint her, however. Chris won a Right to Know case against the selectmen in 2015, when Carroll County Superior Court ruled that the board had violated RSA 91-A multiple times, including the improper use of nonpublic meetings.

It’s unclear when the selectmen decided to remove her, but she received a two-line letter dated July 10 signed by the selectmen informing her that she was no longer on the planning board. Her name has been removed from the planning board’s page on the town web site.

Steve Brinser has resigned from the planning board in protest and I’m told that John Lapolla also resigned. (Both their names have also been removed from the web site.) In addition, John Cameron’s term expired at the end of June, leaving the board with only four regular members — three of whom were appointed in June.

While the letter was dated July 10, the selectmen did not discuss the matter in public session at their July 10 regular meeting.

However, they did sign a “thank you letter to a board member.”

Chairman Lloyd Wood did not identify the board member they were thanking. The 7/10 public meeting minutes, which are in draft form at the moment, state, “Selectman Marcussen moved to approve a thank you letter to a board member, seconded by Chairman Wood with all in favor.”

Chris said her letter was just two lines long, and this screen shot of Selectman Chip Albee signing the letter midway down the page makes it clear that if it wasn’t the letter to Chris, it certainly was a very short piece of correspondence.

In order to have a letter ready to sign on 7/10, they likely reached a decision at the meeting on July 3, even though there was no specific mention of Chris Sawyer during the public meeting that day.

There was this exchange during the July 3 public meeting, however:

Chip: “Do we have a nonpublic for appointments today?”
Lloyd: “Pardon?”
Chip: “Are we having a nonpublic for appointments today?”
Bill: “I think we need to.”
Lloyd: “If you want, yes. We can have a nonpublic any time we’re [in a] legal meeting.”

By saying “for appointments,” Chip may have been referring to appointing someone to a board. However, at the end of the public meeting, the selectmen said they were going into nonpublic for a “personnel issue.”

The word “personnel” does not appear in the nonpublic meeting section of 91-A. The public minutes for July 3 read, “Selectman Marcussen moved to enter non-public session per RSA 91-A: 3 II (a) to discuss a personnel issue.” As you can see in the video, despite what the minutes incorrectly show, Bill didn’t cite the specific paragraph, which is a violation of RSA 91-A:3-I(b): “Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session.”

91-A:3-II(a) states “The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted.”

Chris was not an employee, so if the selectmen relied on 91-A:3-II(a) to discuss her reappointment to the board, then they violated the law.

Regardless of whether they discussed Chris during the 91-A:3-II(a) session, they are likely in violation of RSA 91-A:3-III, which states, of nonpublic meetings, “minutes of such sessions shall record all actions in such a manner that the vote of each member is ascertained and recorded.”

The minutes for the 91-a:3-II(a) session read only, “the selectmen discussed various personnel issues.”

Furthermore, 91-A:3-II(a) does not allow the selectmen to discuss “various” personnel issues, only the specific issues as defined in the paragraph: “The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her.”

It seems likely that the selectmen either discussed Chris’s reappointment during the 91-A:3-II(a) nonpublic meeting, which would have been illegal, or they discussed it in a non-meeting, which would be illegal.