THE STATE OF NEW HAMPSHIRE
GRAFTON, SS. SUPERIOR COURT
Demetrios "Jim" Sourgiadakis
v.
Town of Littleton
Docket No.: 215-2011-CV-00321
ORDER ON PLAINTIFF'S MOTION
TO SEARCH FOR AND PRODUCE ADDITIONAL RECORDS
This matter is before the Court on the plaintiff's Motion To Search For And Produce Additional Records, to which the Town of Littleton ("town") objects. After carefully considering the parties' arguments and the applicable law, the Court makes the following rulings.
In July 2011, the plaintiff, Demetrios "Jim" Sourgiadakis, filed a petition under RSA chapter 91-A, New Hampshire's Right-to-Know Law, against the town. Following a hearing on the petition on August 29, 2011, the Court conducted an in camera review of certain records that the town furnished to the Court. On September 2, 2011, the Court issued an order, which is incorporated by reference herein, setting forth its findings and rulings on said records.
The plaintiff has now filed a Motion To Search For And Produce Additional Records, in which he requests that the Court (1) order the town "to search for all documents responsive to his Right to Know Request, including those that may reside on the 22 unsearched computers of the Town's Police Department, by searching the 22 computers and/or the Town's servers maintained by Network Manager" (Pl.'s Mot., prayer B); (2) require the town to provide such documents in a particular format (Id., prayer C); and (3) require the plaintiff to pay only "the reasonable cost of producing such documents in an amount equal to at least the rates set forth in the New Hampshire Drafting and Procedure Manual for Administrative Rules." (Id., prayer D.) The town argues that it is [2] willing to have Network Managers, the company that has preserved the 22 "hard drives from the police department" on behalf of the town, "search the twenty-two . . . hard drives as long as [the plaintiff] pays the cost for that search[;]" that "it would cost approximately $4,180 to search [said] hard drives[;]" that the plaintiff is now requesting town records that were not covered by his April 6, 2011 Right-to-Know request; and that RSA 91-A:4, V "does not require the Town to produce the records in the form requested" by the plaintiff. (Town's Obj., ¶¶ 2, 3, 8-13, 16.)
The principal issues that the plaintiff's motion presents relate to the scope of the plaintiff's April 6, 2011 Right-to-Know request and whether RSA 91-A:4, IV requires the plaintiff to pay the cost to have Network Managers search the 22 hard drives in question. With respect to the scope of the plaintiff's Right-to-Know request, he argues that he "request[ed] all town records relating to a certain boycott of certain business in the Town of Littleton . . . that occurred in March 2011." (Pl.'s Mot. ¶ 1.) The town maintains that the plaintiff "requested documentation either generated or received by the Littleton Police Department or any of their personnel with the State Employees' Association (SEA) during the month of March of 2011" (Town's Obj., ¶ 9, internal quotations omitted) and that the plaintiff then further "limited his request to communications between Chief Paul Smith and Detective Michelle Soares and the SEA for that same time period." (Id.)
In his April 5, 2011 Right-to-Know request, the plaintiff made the following request:
[P]lease provide to me within five days all documentation either generated or received by the Littleton Police Department or any of their personnel with the State Employees Association (SEA) during the month of March 2011, pursuant to New Hampshire's Right to Know Law . . . . The documentation shall include all letters, faxes, e-mails, facebook postings, all other electronic, computer or internet communications, twitter and all other manner of communication as it pertains to the discussions, requests, implementation, identification of the boycott or proposed boycott of the businesses in the Town of Littleton. Specifically any communication [3] between Chief Paul Smith and Detective Michelle Soares and the SEA between March 1st and March 31, 2011.
(Pet., Ex. A.)
Viewing the language of the plaintiff's Right-to-Know request in its entirety, and consistent with the purposes and provisions of RSA chapter 91-A, the Court rules that (1) the request covers "all documentation either generated or received by the Littleton Police Department or any of their personnel with the State Employees Association (SEA) during the month of March of 2011," and is not limited to communications between Chief Paul Smith, Detective Michelle Soares and the SEA; and (2) the plaintiff's request does not extend to other town records and, specifically, that it does not cover "all town records" regarding the boycott.
With respect to the cost issue, RSA 91-A:4, IV presently provides in relevant part:
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.
In 2001, the New Hampshire Supreme Court held that the cost of providing records requested under RSA chapter 91-A "is not a factor in detennining whether the information is a public record," but the Court did "not reach the question of who bears the burden of paying for the cost of producing the information requested, because the issue [was] not ripe [for the Court's] review." Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376, 380 (2001). At that time, the applicable portion of RSA 91-A:4, IV provided as follows:
If a photocopying machine or other device maintained for use by a body or agency is used by the body or agency to copy the public record or document requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the body or agency.
[4] The Supreme Court concluded its decision in Hawkins by making the following observation:
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."
Hawkins, 147 N.H. at 380. In 2008, the legislature amended this portion of RSA 91-A:4, IV by adding the word "computer" at the beginning of the sentence, so that it now reads "[I]f a computer, photocopying machine, or other device maintained for use . . . ." See H.R. 1408, 160th Gen. Court, Reg. Sess. (N.H. 2008). The stated purpose of this amendment was "to clarify how the right-to-know law applies to both govemmental records kept in electronic form and electronic communications used to transact governmental business." Id.
When interpreting statutes [the Court] looks to the language of the statute itself, and, if possible, construes that language according to its plain and ordinary meaning." State v. Duran, 158 N.H. 146, 155 (2008). The Court does not "pick and choose those portions of the language" that it finds controlling and subvert those it does not. Id. The Court reads "the statute as a whole." Id.
The Court agrees with the town that the costs associated with searching the 22 computer hard drives in question are part of "the actual cost of providing the copy" within the meaning of RSA 91-A:4, IV, for which the person requesting the copies is responsible under the statute. The common meaning of "provide" is "to acquire for or supply; furnish." Webster's New International Pocket Dictionary 416 (new revised ed. 2002). In order to "provide" the plaintiff with the copies of the requested documents stored on the town's [5] computer hard drives, the town must first search the hard drives to locate and identify those records that are covered by the plaintiff's Right-to-Know request. Construing the language of the applicable sentence in RSA 91-A:4, IV according to its plain and ordinary meaning, and based on the common meaning of the word "provide," the Court rules that "the actual of cost of providing the copy" includes the actual cost of searching the 22 computer hard drives in question for any such records that the plaintiff's Right-to-Know request may cover.
The Court declines to rule on the relief that the plaintiff requests in prayer C of his motion at this time. If the parties are unable to resolve the issue of the format in which the town will furnish the plaintiff with any records covered by his Right-to-Know request, then either party may file an appropriate motion seeking a judicial determination on this issue.
SO ORDERED.