David K. Taylor v. School Administrative Unit 55

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2016-0702

DAVID K. TAYLOR

v.

SCHOOL ADMINISTRATIVE UNIT #55

Submitted: June 21, 2017
Opinion Issued: September 21, 2017

David K. Taylor, self-represented party, by brief.

Drummond Woodsum & MacMahon, of Portsmouth (Demetrio F. Aspiras
and James A. O'Shaughnessy on the brief), for the defendant.

LYNN, J. The plaintiff, David K. Taylor, appeals a decision of the
Superior Court (Anderson, J.) entering judgment in favor of the defendant,
School Administrative Unit #55 (SAU), in the plaintiff’s Right-to-Know lawsuit.
See RSA ch. 91-A (2013 & Supp. 2016). He argues that the trial court erred in
interpreting certain provisions of RSA chapter 91-A and erroneously concluded
that the SAU’s policy for transmitting public records complied with the statute.
We affirm.

The pertinent facts are as follows. On May 12, 2016, the SAU’s Board
(the Board) held a regularly-scheduled meeting. During the meeting, the Board
voted to go into nonpublic session to discuss two topics: the superintendent’s
evaluation, and “emergency functions.” While in nonpublic session, the Board
voted to seal the minutes of the meeting.

In June 2016, the plaintiff asked the executive assistant to the
superintendent to send him the minutes of the May 12 nonpublic session by
e-mail. She informed the plaintiff that she could not provide him with those
minutes because they were sealed. On July 15, the plaintiff e-mailed the
executive assistant again, asking her to forward to him, by e-mail, a June 22
e-mail regarding the nonpublic session that had been sent to the Board. The
executive assistant again denied the plaintiff’s request, referring him to the
SAU’s Right-to-Know procedure. The procedure requires members of the
public seeking electronic records to come to the SAU’s offices with a thumb
drive in sealed, original packaging or to purchase a thumb drive from the SAU
at its actual cost of $7.49.

In August, the plaintiff filed a complaint in the trial court in which he
alleged that the SAU had violated RSA chapter 91-A by voting in closed session
to seal the minutes of the nonpublic session of the May 12 meeting and by
refusing to forward to him, by e-mail, the records he requested. He also
challenged the SAU’s practice of charging 50 cents per page for hard copies of
public records. The plaintiff sought the following relief: invalidation of the vote
to seal the minutes of the nonpublic session; release of the sealed minutes; a
declaration that the SAU’s thumb drive policy violates RSA chapter 91-A; an
order requiring transmission of the requested records to him by e-mail; other
injunctive relief; and litigation costs.

After the complaint was filed, the SAU acknowledged that the Board had
violated RSA 91-A:3, III, which requires that votes to seal minutes of nonpublic
sessions be “taken in public session.” RSA 91-A:3, III (Supp. 2016). On
August 29, the Board voted, in a public session, to seal only the portion of the
nonpublic session concerning emergency functions. The portion of the minutes
regarding the evaluation of the superintendent was released, with one sentence
redacted.

Following a hearing, the trial court ruled that the SAU’s policy for
transmitting public records complied with RSA chapter 91-A. Because of the
SAU’s decision to keep sealed only the portion of the nonpublic session with
respect to emergency functions, the trial court also found that the plaintiff’s
challenge of the SAU’s action was “moot in all but one respect,” specifically, the
single redacted sentence of the superintendent’s evaluation. On this issue, the
court ordered that the SAU provide it with an un-redacted copy of the public
minutes for in camera review.

The trial court also determined that the petitioner’s lawsuit had been
necessary to ensure the Board’s compliance with RSA 91-A:3, and, therefore,

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awarded him litigation costs. However, the trial court ruled that the plaintiff
had no standing to challenge the cost of paper copies, because there was no
evidence that he had asked for, or paid for, such copies. The trial court also
found that the Board did not violate RSA 91-A:3, III by producing two sets of
minutes for the May 12 meeting, one containing the public portion and the
other the sealed portion. Finally, the court declined to enter the injunctive
relief sought by the plaintiff.

The plaintiff moved for reconsideration, which the court denied. In
denying the motion, the court determined “that the privacy interest of certain
employees in non-disclosure outweighs the public interest in disclosure of the
single redacted sentence which concerns employees who are subordinate to the
superintendent.” This appeal followed.

On appeal, the plaintiff first argues that the SAU’s policy for transmitting
public records violates RSA chapter 91-A. Next, he asserts that the cyber
security concerns cited by the SAU in support of its public records
transmission policy are undermined by the SAU’s regular use of e-mail. He
also argues that the SAU’s policy is unreasonable and therefore
unconstitutional. Finally, he contends that the legislative history of the 2016
amendment to RSA 91-A:4, IV supports the free delivery of electronic records.
Because the issues the plaintiff raises require us to determine whether the trial
court correctly interpreted the Right-to-Know Law, our review is de novo. New
Hampshire Resident Ltd. Partners of Lyme Timber Co. v. New Hampshire Dep’t
of Revenue Admin., 162 N.H. 98, 102 (2011).

“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.” 38 Endicott St. N. v. State Fire
Marshal, 163 N.H. 656, 660 (2012) (quotation omitted). “It thus furthers our
state constitutional requirement that the public’s right of access to
governmental proceedings and records shall not be unreasonably restricted.”
Id.; see also N.H. CONST. pt. I, art. 8. “Although the statute does not provide
for unrestricted access to public records, 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.” 38 Endicott St.
N., 163 N.H. at 660. “As a result, we broadly construe provisions favoring
disclosure and interpret the exemptions restrictively.” Green v. Sch. Admin.
Unit #55, 168 N.H. 796, 799 (2016) (quotation omitted). “A public entity
seeking to avoid disclosure under the Right-to-Know Law bears a heavy burden
to shift the balance toward nondisclosure.” 38 Endicott St. N., 163 N.H. at 660
(quotation omitted).

We first address the plaintiff’s argument that the SAU’s policy for
transmitting public records violates RSA 91-A:4 (Supp. 2016).

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RSA 91-A:4 provides, in relevant part:

I. Every citizen during the regular or business hours of all
public bodies or agencies, and on the regular business premises of
such public bodies or agencies, has the right to inspect all
governmental records in the possession, custody, or control of
such public bodies or agencies, including minutes of meetings of
the public bodies, and to copy and make memoranda or abstracts
of the records or minutes so inspected, except as otherwise
prohibited by statute or RSA 91-A:5. In this section, “to copy”
means the reproduction of original records by whatever method,
including but not limited to photography, photostatic copy,
printing, or electronic or tape recording.

....

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.
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
acknowledgement of the receipt of the request and a statement of
the time reasonably necessary to determine whether the request
shall be granted or denied. 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. No fee shall be charged for the
inspection or delivery, without copying, of governmental records,
whether in paper, electronic, or other form. . . .

V. 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
method, the public body or agency may provide a printout of
governmental records requested, or may use any other means

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 reasonably calculated to comply with the request in light of the
purpose of this chapter as expressed in RSA 91-A:1.

The plaintiff argues that the SAU’s policy violates the “[n]o fee . . . for . . .
delivery, without copying” language of RSA 91-A:4, IV. Furthermore, he asserts
that, read together, RSA 91-A:4, IV and V mandate that the SAU must comply
with his request because those provisions impose a duty upon the SAU to
deliver records in the electronic format requested. He also argues that
providing the documents in the form of a Portable Document Format (PDF) on a
thumb drive violates RSA 91-A:4, IV and V.

We are not persuaded by the plaintiff’s arguments. The trial court found
that the SAU charges $7.49 –– a thumb drive’s actual cost –– for thumb drives
it sells to individuals making Right-to-Know requests. RSA 91-A:4, IV
specifically permits a public body or agency to charge the “actual cost of
providing the copy” if “a computer, photocopying machine, or other device” is
used by the public body or agency “to copy the governmental record requested.”
RSA 91-A:4, IV. Because a thumb drive falls into the catch-all category of
some “other device . . . used by the public body or agency to copy the
governmental record requested,” we conclude that the SAU’s policy complies
with the statute. See id.

The plaintiff maintains, however, that his request that the records be
e-mailed to him was merely a request for the “delivery” of the records, not for
“copying” them, and, therefore, that the requirement that they be produced on
a thumb drive for which he must pay constitutes a fee that is prohibited by the
statute. However, as the plaintiff himself acknowledges in his brief, e-mailing
the records to him as he requested would itself require copying the records,
albeit in electronic form. The SAU’s procedure requiring use of a thumb drive
simply calls for the use of a different type of electronic copying. Given that the
statute allows the public body to charge for “copying,” and contains no
language suggesting that that term was intended to encompass paper copies
only, we conclude that the term “delivery” as used in the statute was intended
to cover the public body’s obligation to produce documents or make them
available to the public in circumstances in which there is no need for their
reproduction in any medium. See RSA 91-A:4, IV. For example, if a
municipality stores requested records in the basement or attic of the town hall,
the statute would not allow it to charge for the time or effort involved in having
its employee(s) deliver the records to the area of the building where they can be
reviewed or inspected (without copying) by a member of the public who
requested to see them.

Here, the SAU is not charging a fee for the inspection or delivery of the
documents. It is charging a fee for the actual cost of the thumb drive (unless
the plaintiff chooses to provide his own), onto which the records are copied, so
that the plaintiff can view them electronically per his request. Because the

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statute permits a fee for the copying of records, the use of a thumb drive as a
medium to copy the records does not violate the statute. We also note that
there is no allegation that the SAU charges any additional fee attributable to
the time spent by its employees in effectuating the copying to the thumb drive
— the only charge is for the actual cost of the drive itself.

Insofar as the plaintiff complains that the SAU’s procedure is needlessly
inconvenient in that it requires him to appear in person at the SAU offices in
order to obtain copies of the records on the thumb drive, we again agree with
the trial court that such a procedure is entirely consistent with the text of RSA
91-A:4, I, which provides that the right of access for purposes of inspection and
copying of governmental records exists “during the regular or business hours”
and “on the regular business premises” of all “public bodies or agencies.” RSA
91-A:4, I. As the SAU correctly asserts, there is no provision of RSA chapter
91-A that requires a governmental body to “deliver” records to any location
other than its regular place of business.

We also disagree with the plaintiff that the statute imposes a duty upon
the SAU to deliver the records in the electronic format he requests. Nothing in
the text of RSA 91-A:4, IV or V imposes such a requirement. And our decision
in Green held only that, when a person requested access in electronic format to
documents that were maintained in that form, and when the defendants had
no valid reason not to provide copies in that form, they were required to do so.
See Green, 168 N.H. at 801-03. We had no occasion in that case to distinguish
between various forms of electronic media, or to consider whether the
defendants were required to provide the requested records in the particular
electronic format chosen by the requestor. Here, we agree with the trial court
that “[s]o long as the manner of electronic production chosen by the
municipality does not diminish the ease of use . . . of the information produced
or the public’s access to the information sought, Green does not counsel in
favor of one method over another.” See id. The SAU’s policy for transmitting
public records complies with Green because copying the records onto a thumb
drive satisfies the plaintiff’s request to provide them in electronic form. See id.
As the trial court noted, “[p]roviding documents on thumb drives does not in
any way limit the recipient’s ability to review or search the requested
documents and therefore serves all of the interests identified by the Supreme
Court in Green.”

Moreover, we find valid the SAU’s concern that responding to records
requests by e-mail “would introduce unreliability into the process because
sometimes e-mails are too big to be received, and there is no way for [the SAU]
to confirm receipt of e-mails it sends.” Furthermore, we find merit in the SAU’s
argument that repeated e-mail communications over Right-to-Know requests
could potentially pose a risk of cyber security threats. Likewise, we agree with
the trial court’s finding that attachments to e-mail responses to Right-to-Know
requests could create a potential cyber security risk, especially if it were done

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repeatedly by numerous public bodies and agencies. Thus, because the SAU’s
thumb drive policy does not diminish the use of the records requested and
serves the important governmental interest of protecting public bodies’ and
agencies’ information technology systems, we conclude that the policy is
reasonable and does not violate RSA 91-A:4, IV or V.

We next address the plaintiff’s argument that the SAU’s reasoning
behind its policy for transmitting public records contradicts its regular use of
e-mail. However, the fact that the SAU may communicate by e-mail for some
purposes does not mandate that it respond to Right-to-Know requests in this
format. Although the SAU uses e-mail on a regular basis for some purposes, it
has articulated legitimate cyber security concerns with regard to the use of
e-mail to respond to Right-to-Know requests. As the trial court noted, “[w]hile
[the plaintiff] may be correct that the simple forwarding of one email poses a
very small cyber security risk, the greater potential risk comes from repeated
email exchanges with multiple parties making Right-to-Know Law requests.”
The trial court further explained that attachments to e-mails regarding Right-
to-Know requests pose an additional threat to public bodies’ and agencies’
cyber-security.

In addition to these security concerns, we also observe that, because
violation of the Right-to-Know Law can result in serious adverse consequences
for a governmental body and its officials, see RSA 91-A:8 (2013), they have a
strong interest in insuring that they are able to effectively document their
compliance with the statute. Thus, it is not improper for governmental bodies
to adopt procedures for handling Right-to-Know Law requests that may be
more formalized than those pertaining to other communications between the
governmental body and members of the public.

The plaintiff also asserts, in summary fashion, that because the SAU’s
procedure for providing electronic records is, in his view, unreasonable, it
violates Part I, Article 8 of the New Hampshire Constitution. However,
inasmuch as we have concluded, for the reasons explained previously, that the
SAU’s procedure is not unreasonable, we necessarily reject his constitutional
argument.

The plaintiff additionally argues that the SAU’s procedure of providing
electronic records via thumb drive in a PDF format rather than in the format of
a forwarded e-mail renders the information less useful to him because, for
example, the PDF format does not contain metadata that would be contained in
an e-mail format. The SAU responds by asserting that the plaintiff did not
properly preserve this argument for our review because it was not presented in
his complaint and was raised for the first time in his motion to reconsider the
trial court’s order. The appellate record supports the SAU’s position; it reflects
that the plaintiff raised this argument for the first time in his motion for
reconsideration. The SAU objected to the motion on the ground, among others,

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that this argument had not been raised previously. The court denied the
motion “for the reasons stated in [the] Defendant’s opposition and in the
Court’s [original] order.”

We will uphold a trial court’s ruling on a motion for reconsideration
absent an unsustainable exercise of discretion. Mt. Valley Mall Assocs. v.
Municipality of Conway, 144 N.H. 642, 654 (2000). We conclude that the trial
court acted reasonably and within its discretion in declining to address the
plaintiff’s argument regarding the usefulness of records provided via PDF
versus e-mail format. Because this argument presented factual issues that
would have required the trial court to conduct a new evidentiary hearing in
order to properly address, and because the plaintiff made no showing of an
inability to raise the argument at the time of the original hearing, we conclude
that the trial court did not err in declining to address it in the context of a
motion for reconsideration. See id. at 654-55.

Finally, the plaintiff argues that the legislative history of the 2016
amendment that added the fourth sentence to RSA 91-A:4, IV, see Laws 2016,
283:1, supports his claim that the legislature intended that electronic records
be provided free of charge. However, we resort to legislative history only when
a statute is ambiguous. See Favazza v. Braley, 160 N.H. 349, 351 (2010).
Here, we do not find the current version of RSA 91-A:4 to be ambiguous with
regard to any of the points raised by the plaintiff. Therefore, we decline his
invitation to review the legislative history of the 2016 amendment of the
statute.

Affirmed.

DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.

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