Donna M. Green v. School Administrative Unit 55 & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2015-0274

DONNA M. GREEN

v.

SCHOOL ADMINISTRATIVE UNIT #55 & a.

Argued: January 7, 2016
Opinion Issued: April 19, 2016

Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on
the brief and orally), for the plaintiff.

Drummond Woodsum & MacMahon, of Manchester (Matthew R. Serge
and Anna B. Cole on the brief, and Mr. Serge orally), for the defendants.

BASSETT, J. The plaintiff, Donna M. Green, appeals a decision of the
Superior Court (Anderson, J.) entering judgment in favor of the defendants —
School Administrative Unit #55 (SAU), Timberlane Regional School District,
Nancy Steenson, and Earl F. Metzler, II — and concluding that the plaintiff was
not entitled to receive electronic copies of documents that she had requested
from the defendants. We reverse.

The following facts are undisputed or are otherwise supported by the
record. The plaintiff is a member of the Timberlane Regional School Board. On
January 21, 2015, she requested budget-related documents from the SAU for
herself and the school board. In response, Steenson, the chair of the school
board, requested that the plaintiff make a motion for the documents on behalf
of the school board.

On January 23, the plaintiff informed the SAU that her document
request was made pursuant to the Right-to-Know Law. See generally RSA ch.
91-A (2013 & Supp. 2015). On January 26, the SAU responded that the
plaintiff could make an appointment to “see the documents” that she had
requested. The plaintiff replied, “in that case, give me the file electronically and
we will all save money and time”; in response to this communication, the SAU
stated that it had already responded to the plaintiff’s request. The plaintiff
then noted that her “request is for an electronic file . . . or a paper report,
whichever suits the district,” and she declined to make an appointment to view
the documents. The plaintiff explained that “[a]ll of the documents requested
could have been emailed or copied in the time it has taken to answer these
excuses for not providing [them]. . . . This isn’t that difficult.” In response, the
SAU stated that the documents that she requested were immediately “available
for public inspection.”

On January 27 and January 29, the plaintiff again requested the
documents in electronic format. The SAU refused to provide the documents in
electronic format, again noting that the paper documents were available for
inspection. This response by the SAU was consistent with its written policy
governing Right-to-Know requests, which states, in pertinent part, that
“[m]aterials and/[or] documentation produced to fulfill a Right to Know request
shall be subject to a charge [of] $.50 per page” and that “only hardcopies will be
produced; no electronic copies will be provided.”

On February 3, the plaintiff filed a complaint in superior court alleging
that the defendants violated RSA 91-A:4 (2013) by not producing the requested
documents in electronic format. The plaintiff requested that the trial court
order the SAU to “immediately provide an electronic file [of the requested
documents] in a mutually agreeable format.” In response, the defendants filed
a motion to dismiss in which they argued that they were not obligated to
provide the requested documents in electronic format and that they complied
with the Right-to-Know Law by making the paper documents available for
inspection.

Following a hearing, the trial court concluded that the plaintiff was not
entitled to electronic copies of the requested documents. Although the trial
court noted that there “may be a strong policy argument to be made” for
requiring public entities to produce documents in electronic format, the trial
court explained that RSA 91-A:4, V states “in fairly plain language” that “it is
the choice of the public entity whether to produce documents in electronic or
conventional format.” Because the trial court found that the statute provided

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the SAU with discretion as to whether to provide the documents in electronic
format, it entered judgment in favor of the defendants. The plaintiff filed a
motion for reconsideration, which was denied. This appeal followed.

On appeal, the plaintiff argues that, under RSA 91-A:4, V, she was
entitled to receive the requested documents in electronic format, and, therefore,
the trial court’s decision to the contrary was error. Although the defendants do
not dispute that the requested documents are governmental records that are
maintained in electronic format, they argue that the trial court correctly
determined that, under RSA 91-A:4, V, they are not required to provide the
records to the plaintiff in electronic format.

Resolving this issue requires us to interpret the Right-to-Know Law;
therefore, our review is de novo. See Prof’l Firefighters of N.H. v. Local Gov’t
Ctr., 159 N.H. 699, 703 (2010). “The ordinary rules of statutory construction
apply to our review of the Right-to-Know Law.” CaremarkPCS Health v. N.H.
Dep’t of Admin. Servs., 167 N.H. 583, 587 (2015) (quotation omitted). “Thus,
we are the final arbiter of the legislature’s intent as expressed in the words of
the statute considered as a whole.” Id. (quotation omitted). “When examining
the language of a statute, we ascribe the plain and ordinary meaning to the
words used.” Id. (quotation omitted). “We interpret legislative intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include.” Id. (quotation
omitted). “We also interpret a statute in the context of the overall statutory
scheme and not in isolation.” Id. (quotation omitted).

Because the “purpose of the Right-to-Know Law is to ensure both the
greatest possible public access to the actions, discussions and records of all
public bodies, and their accountability to the people,” we “resolve questions
regarding the Right-to-Know Law with a view to providing the utmost
information in order to best effectuate these statutory and constitutional
objectives.” Id. (quotations omitted); see Prof’l Firefighters of N.H., 159 N.H. at
705; see also N.H. CONST. pt. I, art. 8. “As a result, we broadly construe
provisions favoring disclosure and interpret the exemptions restrictively.”
CaremarkPCS Health, 167 N.H. at 587 (quotation omitted).

RSA 91-A:4, V provides, in pertinent part, that:

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

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 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.

(Emphases added.) RSA 91-A:4, IV, in turn, provides, in relevant part, that:

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 computer, photocopying machine, or other device
maintained for use by a public body or agency is used by the
public body or agency to copy the governmental record requested,
the person requesting the copy may be charged the actual cost of
providing the copy, which cost may be collected by the public body
or agency.

The plaintiff argues that, although RSA 91-A:4, V uses the word “may,”
the statute “clearly indicates that the governmental unit is not given unfettered
discretion to produce information in any way it chooses.” Cf. City of Rochester
v. Corpening, 153 N.H. 571, 574 (2006) (“The general rule of statutory
construction is that the word ‘may’ makes enforcement of a statute permissive
and that the word ‘shall’ requires mandatory enforcement.” (quotation
omitted)). According to the plaintiff, the first sentence of RSA 91-A:4, V
provides the defendants not with the option of producing “a paper printout of
electronic records,” but rather with a choice of whether to provide either the
“original records,” or to, instead, “copy governmental records requested to
electronic media using standard or common file formats.” (Quotations
omitted.) The plaintiff contends that the “original records” in this case reside
on a computer in the SAU, and, therefore, the defendants were required to
produce the documents in electronic form — either by providing the original
documents or by copying them to electronic media using standard or common
file formats.

The plaintiff further argues that the second sentence of RSA 91-A:4, V
“makes it clear that the authority to produce a hard-copy form of an
electronically stored document arises only . . . if copying to electronic media is
not reasonably practicable, or if the person or entity requesting access requests
a different method.” (Quotation omitted.) According to her, neither
precondition is met because the trial court did not determine whether copying
to electronic media is not reasonably practicable, and she eventually sought
the records only in electronic format.

In response, the defendants argue that the plaintiff misreads RSA 91-
A:4, V. The defendants contend that, because RSA 91-A:4, V uses the word

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“may” as opposed to “shall,” the statute simply gives public bodies the option of
producing governmental records in electronic format. See City of Rochester,
153 N.H. at 574 (explaining the difference between the words “may” and
“shall”). For support, the defendants contrast this statute with statutes in
other states concerning the public’s access to governmental records, which,
unlike RSA 91-A:4, V, explicitly require the disclosure of governmental records
in the format requested. See, e.g., Neb. Rev. Stat. § 84-712(3)(a) (2014)
(providing that public records “may be obtained in any form designated by the
requester in which the public record is maintained or produced, including, but
not limited to, printouts, electronic data, discs, tapes, and photocopies”); Vt.
Stat. Ann. tit. 1, § 316(i) (2015) (“If an agency maintains public records in an
electronic format, nonexempt public records shall be available for copying in
either the standard electronic format or the standard paper format, as
designated by the party requesting the records.”).

The defendants also assert that the reference to RSA 91-A:4, IV in RSA
91-A:4, V establishes that public bodies are required only to make
governmental records available for inspection and copying, and that there is no
affirmative duty to provide copies of records to requesting parties. See RSA 91-
A:4, IV (“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.”). Thus, because the defendants made the paper
documents available to the plaintiff for inspection and copying, they argue that
they fulfilled their statutory obligations. See Gallagher v. Town of Windham,
121 N.H. 156, 159 (1981) (concluding, under prior version of RSA 91-A:4, that
there is no “absolute duty on towns or agencies to provide copies of public
records to citizens” because the statute contemplates only “that public records
be made available to individual members of the public for their inspection and
reproduction”).

After reviewing the parties’ arguments, we find that both proffered
interpretations of RSA 91-A:4, V are reasonable. Accordingly, we conclude that
the statute is ambiguous. See Appeal of Old Dutch Mustard Co., 166 N.H. 501,
507 (2014). “Under such circumstances, we turn to the legislative history to
aid in our interpretation of the meaning of the statutory language.” Id.; see
United States v. Howe, 167 N.H. 143, 148-49 (2014) (turning to legislative
history because parties’ proffered constructions of statute were both
reasonable). Here, however, the legislative history of RSA 91-A:4, V provides
little guidance regarding the specific issue before us. We, therefore, look to the
purpose of the Right-to-Know Law, which is to “increas[e] public access to all
public documents and governmental proceedings, and to provide the utmost
information to the public about what its government is up to.” Prof’l
Firefighters of N.H., 159 N.H. at 705 (quotation and citations omitted).

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 In light of the purpose of the Right-to-Know Law, and our broad
construction of it, we conclude that the trial court erred when it determined
that the plaintiff was not entitled to the requested documents in electronic
format. Although the SAU notified the plaintiff that the documents that she
requested were available for inspection, there is no evidence in the record that
the paper documents made available constituted “original records” as
contemplated by RSA 91-A:4, V. Moreover, there is no evidence that it was “not
reasonably practicable” to copy the requested documents “to electronic media
using standard or common file formats.” RSA 91-A:4, V. Further, although the
plaintiff initially requested the documents in either paper or electronic format,
she later modified that request — including the request set forth in the
complaint that she filed in the trial court — seeking the documents in only
electronic format. We also note that the defendants have not argued that, in
order to produce the requested documents in electronic format, they would be
required to compile or assemble the documents into a new format. See RSA
91-A:4, VII (“Nothing in this chapter shall be construed to require a public body
or agency to compile, cross-reference, or assemble information into a form in
which it is not already kept or reported by that body or agency.”); see also
Hawkins v. N.H. Dep’t of Health and Human Services, 147 N.H. 376, 379
(2001) (explaining that, under a prior version of the Right-to-Know Law, the
public body was not required to create a new document in response to a
request under RSA chapter 91-A). Nor have the defendants argued that the
requested documents contained confidential information. See RSA 91-A:4, V
(stating that confidential information shall not be provided). Under these
circumstances, we cannot conclude that the defendants fulfilled their statutory
obligations.

Accordingly, we conclude that the plaintiff was entitled to the requested
documents in electronic format. The trial court’s decision to the contrary was,
therefore, in error.

We observe that requiring the defendants to produce the requested
documents in electronic format advances the purpose of the Right-to-Know
Law, which is to improve public access to governmental records and “provide
the utmost information to the public about what [the] government is up to.”
Prof’l Firefighters of N.H., 159 N.H. at 705 (quotation omitted). Given that the
“overwhelming majority of information” today “is created and stored
electronically,” U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225,
237 n.23 (S.D. Cal. 2015) (quotation omitted), we agree with the plaintiff that
the “[d]issemination of public, non-confidential information in commonly used
[electronic] formats ensures the greatest degree of openness and the greatest
amount of public access to the decisions made by the public officials.” See
Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003)
(explaining that, unlike paper evidence, electronic evidence “can be searched
automatically, key words can be run . . . , and the production can be made in
electronic form obviating the need for mass photocopying”).

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 Furthermore, producing electronic documents is often more efficient and
cost-effective than producing them in paper form. See Mechling v. City of
Monroe, 222 P.3d 808, 817 (Wash. Ct. App. 2009) (“Providing electronic records
can be cheaper and easier for [a public body] than paper records.” (quotation
omitted)). We recognized this reality over 40 years ago in Menge v. Manchester,
113 N.H. 533 (1973), in which we held that, under a prior version of the Right-
to-Know Law, the plaintiff was entitled to the production of certain
computerized tapes of field record cards from the defendants. Menge, 113 N.H.
at 535-38. As we stated in Menge:

The ease and minimal cost of the [computerized] tape reproduction
as compared to the expense and labor involved in abstracting the
information from the field cards are a common sense argument in
favor of the former. . . . Taking into account the practical realities
of the situation, we believe it not only possible, but in accord with
our law and what seems to be its basic philosophy, to so construe
the statute as to permit plaintiff to have the reproduced tapes at
his expense.

Id. at 538 (quotation omitted). It is worth noting that when we decided Menge,
personal computers, laptops, tablets, smartphones, and other forms of modern
technology did not exist. Cf. Bancorp Services v. Sun Life Assur. Co. of
Canada, 687 F.3d 1266, 1277 (Fed. Cir. 2012) (observing that “[m]odern
computer technology offers immense capabilities and a broad range of
utilities”). In the intervening 43 years, advances in storing, copying,
transferring, and analyzing computerized data have facilitated the public’s
access to “the utmost information . . . about what its government is up to,”
Prof’l Firefighters of N.H., 159 N.H. at 705 (quotation omitted). See John B. v.
Goetz, 879 F. Supp. 2d 787, 877 (M.D. Tenn. 2010) (“Electronically stored
information, if kept in electronic form . . . can be very inexpensive to search
through and sort using simple, readily available technologies . . . . The cost of
copying and transporting electronically stored information is virtually nil.”
(quotation and emphasis omitted)).

In sum, under all the circumstances, we conclude that the plaintiff is
entitled to the requested documents in electronic format. We note, however,
that if the legislature disagrees with our statutory interpretation, it is “free to
amend the statute as it sees fit.” Forster v. Town of Henniker, 167 N.H. 745,
753 (2015). Finally, any issues raised in the notice of appeal that were not
briefed are deemed waived. See Waterfield v. Meredith Corp., 161 N.H. 707,
713 (2011).

Reversed.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

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