2007 Autumn, Pg. 38. Electronic Records and Communications Under New Hampshire's Right-to-Know Law.

AuthorBy Attorney Cordell A. Johnston

New Hampshire Bar Journal


2007 Autumn, Pg. 38.

Electronic Records and Communications Under New Hampshire's Right-to-Know Law

New Hampshire Bar JournalAutumn 2007, Volume 48, No. 3Municipal LawElectronic Records and Communications Under New Hampshire's Right-to-Know LawBy Attorney Cordell A. JohnstonNew Hampshire's Right-to-Know Law, RSA chapter 91-A, requires that "public records" be made available to any person upon request for inspection and copying,(fn1) and that meetings of "public bodies" be open to the public.(fn22) R.S.A. 91-A:2. The statute was enacted in 1967, at a time when most government records were still created using manual typewriters or pen and ink. Although the statute has been amended many times since then, little has been done to address the technological changes of the last 40 years.

In Hawkins v. Department of Health & Human Services,(fn3) the New Hampshire Supreme Court addressed, in a limited manner, the applicability of the Right-to-Know Law to public records stored in electronic form. At the end of its opinion, the Court stated:

The issues in this case foreshadow the serious problems that requests for public records will engender in the future as a result of computer technology. Unless the legislature addresses the nature of computerized information and the extent to which the public will be provided access to stored data, we will be called upon to establish accessibility on a case-by-case basis. It is our hope that the legislature will promptly examine the Right-to-Know Law in the context of advancing computer technology.(fn4)

Some members of the legislature - and in particular a legislatively created Right-to-Know Law Oversight Commission - have heeded that call and have been trying for several years to address the questions described by the court in Hawkins. Unfortunately, for various reasons, those efforts have not yet led to the enactment of legislation. Consequently, applying the statute to current technology remains a difficult task.

There are two primary issues of concern: (1) What are the requirements regarding retention and disclosure of electronic records (including e-mail) under the Right-to-Know Law? and (2) To what extent do e-mail and other electronic communications constitute "meetings" that are subject to the law's open-meeting requirements?

  1. Electronic Records

    The Right-to-Know Law states:

    Every citizen during the regular or business hours of all [public] bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, including minutes of meetings of the bodies or agencies, and to make memoranda, abstracts, and photographic or photostatic copies of the records or minutes so inspected [subject to certain exceptions].(fn5)

    1. What is a Public Record?

      Curiously, the statute has never defined "public record,"(fn6) and the New Hampshire Supreme Court has never provided a comprehensive definition. It has defined the term only by its rulings on whether specific items are or are not subject to disclosure.(fn7) However, the term has generally been understood to include any record created by, or in the custody of, a public entity and relating to that entity's official function. House Bill 377, introduced in the legislature's 2007 session, would have codified that definition as follows: "any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function."(fn8) The word "information," in turn, would have been defined as "knowledge, opinions, facts or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic or other physical form."(fn9) Those definitions together, although not formally adopted by the legislature,(fn10) provide a good working definition of the term "public record," consistent with court interpretations and probably with the understanding of most attorneys familiar with the statute.

    2. Electronic Records Under the Right-to-Know Law

      The only mention of electronic records in the existing law is in RSA 91-A:4, V, added in 1986, which states that "any body or agency which maintains its records in a computer storage system may, in lieu of providing original documents, provide a printout of any record reasonably described." This makes it fairly clear that electronic records are subject to the law, and no one has ever seriously questioned this.

      If there ever was any doubt on this point, the Supreme Court answered it in Hawkins. The plaintiff in that case had requested records of dental services provided to Medicaid recipients under the age of 21, and of Medicaid reimbursement payments made to their dental providers.(fn11) The Department of Health and Human Services ("HHS") argued that the requested information was stored in its claims processing system as discrete bits of information, and therefore did not constitute existing documents subject to disclosure. HHS also asserted that its programs were not capable of compiling the information into the format requested.(fn12)

      The Court ruled that "a Medicaid claim form does not lose its status as a public record simply because it is stored within a computer system."(fn13) It held that the law does not require a public agency to "create new records"; thus, in this case, it did not require HHS to compile a document specifically identifying Medicaid services provided to recipients under the age of 21, if HHS did not maintain its records in that manner. However, the law "does . . . require that public records . . . be maintained in a manner that makes them available to the public." HHS, therefore, was required to make the records available in their original form.(fn14)

      Once it is accepted that electronic records are subject to disclosure just as paper records, a number of questions follow. The answer to many of these questions is, in theory, straightforward: treat electronic records in the same manner as paper records. In practice, however, the answers can be more complicated. Setting aside, for now, the vexing issue of e-mail and similar electronic communications, let us address the basic issues.

      1. Creation and Storage of Electronic Records. What are the acceptable methods for creating and storing electronic records? For the most part, this is not a Right-to-Know Law question. The Right-to-Know Law says nothing about the form or manner of creating records: that is an issue that is typically addressed (or not) by the statute or rule that requires the keeping of a given record in the first place.

        Once, however, a record is created, and regardless of its form or the medium on which it is stored, the Right-to-Know Law does govern two aspects of the record's maintenance: location and accessibility. The law states: Each body or agency shall keep and maintain all public 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 public records pertaining to such body or agency shall be kept in an office of the political subdivision in which such body or agency is located or, in the case of a state agency, in an office designated by the secretary of state.(fn15)

        Records, electronic or otherwise, may not be stored in a place that is not under the control of the public body or agency. For example, if an e-mail between two selectmen constitutes a public record, it is not sufficient that it is stored on one of the selectmen's home computer. It must be stored in the selectmen's office, in either electronic or paper form.

        The reference to "an accessible place" could be read literally to mean only that the location of the record must be accessible, without requiring that the record itself be accessible; but this would flout the intent of the Right-to-Know Law, which is "to ensure . . . the greatest possible public access to the actions, discussions and records of all public bodies."(fn16) The law requires records to be made available(fn17); clearly, then, they must be in a form that allows the public to make sense of them. If a record is stored only on a reel-to-reel tape or a 5

        With respect to municipal records, a separate statute, RSA chapter 33-A, provides some specific limitations on the manner in which records may be stored. That statute, which prescribes the required retention periods for all municipal records (see discussion below), states that electronic records that are designated to be retained for more than 10 years must be transferred to paper, microfilm, or both. Electronic records designated to be retained for less than 10 years may be retained solely electronically if so approved by the municipality's record committee. The municipality "is responsible for assuring the accessibility of the records for the mandated period."(fn18) Thus, even for under-10-year records that are permitted to be retained solely electronically, they must be in a medium that allows a citizen to get access to them and read them. If the municipality implements an entirely new information system that is not compatible with the storage media for its existing records, it would be well advised to find a way to transfer those records to its new system.(fn19) Of course, this is necessary not only to make records available in response to Right-to-Know Law requests, but also to enable government officials themselves to retrieve and use the...

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