NH Supreme Court delivers another victory for people seeking access to government records
The New Hampshire Supreme Court issued its ruling late last month. (Dana Wormald | New Hampshire Bulletin)
The state Supreme Court has issued what attorneys are calling another win for members of the public seeking access to government records. In a 3-2 decision, the majority reaffirmed the protections under the state’s right-to-know law, including the right to attorney’s fees.
“What I was struck with here is the fact that the court really puts the burden on the public body to inform itself of what the law is,” said lawyer William Chapman, who has handled right-to-know cases for media outlets and others for years. “So (a governmental body) simply can’t say, ‘I don’t think the request has reasonably described the records that the requester wants.’”
The opinion, issued Oct. 26, follows two other recent court orders that have been celebrated for protecting and expanding access to public records under the right-to-know law, particularly those involving police officer conduct.
In early October, a Sullivan County Superior Court judge ordered the release of disciplinary records that led to the termination of former Claremont police officer Jonathan Stone as well as nearly a dozen internal affairs investigations. The Union Leader and ACLU-NH joined that case.
In May, a Merrimack County Superior Court judge ordered the Department of Safety to release personnel records for former state trooper Haden Wilber, fired for misconduct. In his ruling, Judge John Kissinger wrote “the public has a very strong and compelling interest” in knowing whether Wilber’s personnel file contained incidents of misconduct and how the department was supervising its officers and employees.
ACLU-NH sought those records under a right-to-know request. The state is appealing.
The order issued last month stems from the city of Nashua’s denial of a request from resident Laura Colquhoun for all email correspondence between two city employees over a two-month period. In denying Colquhoun’s right-to-know request in March 2021, the city said her demand for “all email” was overbroad, despite its focus on two people in a short timeframe.
Colquhoun sued the city in superior court, seeking both the records and payment for her attorney’s fees. In its defense, the city told the court that Colquhoun’s request was so overbroad it was too burdensome to answer.
It said the records could be in any of approximately 29,000 files within the department. The city also argued that an email search could produce “hundreds of pages” of correspondence, and that it could not be certain it had found “all” records, as requested. It said too that Colquhoun had not “reasonably described” the records she sought, as is required under the right-to-know law.
Judge Charles Temple rejected those arguments on several grounds and noted that the city had “quickly” turned up nearly 547 email messages within six days of Colquhoun’s request.
In his order, Temple quoted from the state’s right-to-know law: “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.”
And, Temple ruled, the city’s inability to say with certainty that it had found “all” records was not justification to search for and produce no records. Chapman said when a public body cannot produce all the records requested at once, it should release records as it gathers them. In one case he handled, the state provided records over a period of several months.
However, Temple denied Colquhoun’s request for attorney’s fees, finding no evidence the “city knew or should have known that its conduct violated the right-to-know law,” a standard required to award attorney’s fees.
Colquhoun appealed the denial to the state Supreme Court and won, with Justices Gordon MacDonald, Gary Hicks, and Pat Donovan sending the case back to superior court to determine the cost of Colquhoun’s attorney’s fees.
In their dissent, Justices James Bassett and Barbara Hantz Marconi disputed the award of attorney’s fees saying that because neither the Legislature nor state Supreme Court has defined “reasonably described” when it comes to right-to-know requests, the city appropriately looked to courts elsewhere for guidance. Other courts, they wrote, have found that courts elsewhere have found a request for “all” emails without identifying a subject matter to be overbroad.
“I was glad that attorneys fees were awarded because I believe the city’s response was not reasonable,” said attorney Greg Sullivan, who represents the Union Leader. “They knew they were able to put their hands on at least some information that was responsive to her request. But they didn’t do that until after she had filed suit. Then, all of a sudden, we were able to come up with 547 emails.”
Two years ago, Sullivan argued a case before the state Supreme Court on behalf of a Keene State College journalism professor and five students whose right-to-know case was largely denied by a superior court. The Supreme Court overturned those findings.
“Over the years, and really thanks to the Supreme Court, the light of public scrutiny is shining more than ever on governmental action,” Sullivan said. “But that’s not to say that we don’t have to keep plowing away at it.”
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