THE STATE OF NEW HAMPSHIRE
HILLSBOROUGH, SS. SUPERIOR COURT
NORTHERN DISTRICT
No. 10-E-196
Carla Gericke
v.
Town of Weare, et al.
INTERIM ORDER ON
ADDENDUM TO PETITION FOR INJUNCTIVE RELIEF
Petitioner Carla Gericke requests certain court orders in response to the representation of the Town of Weare that it does not possess documents and other items sought by her under the Right to Know Law (RSA 91-A). The court determines that further information is required from the Town, and rules as follows.
Background
In an order released on July 26, 2010, the court dismissed Carla Gericke's petition for injunctive relief under the Right to Know Law (RSA 91-A) based on the representation of the Town's counsel at the hearing that what Ms. Gericke sought -- audio and video recordings made on its police vehicles' recording devices and maintenance and usage records relating to such devices -- did not exist. The Town gave Ms. Gericke a different explanation when it declined [2] initially to produce the materials. It claimed then that the items were exempt from disclosure.
Gericke did not learn of the Town's new explanation until shortly before the hearing, so at the hearing she filed an Addendum to her petition. See document no. 5. Doubting the Town's assertion that it had no such materials, Gericke's Addendum called for (1) an in camera review of the Town's servers to determine their content; (2) disclosure of the Town's policies on maintaining dashboard video recording devices; (3) records on the use and maintenance of such equipment; (4) an explanation by the Town as to why the videos and records sought had "disappeared;" and (5) a court order prohibiting the Town from tampering with its servers and records until the court reviewed them. The court gave the Town twenty (20) days to respond, and the Town did so on August 16, 2010. See document no. 12. The Town's answer reiterates its counsel's earlier statements that the information sought was never in existence, and that there is nothing for the Town to disclose or explain, or for the court to review.1
Discussion
The Addendum raises the question of whether a court may deny a request for an injunction under RSA 91-A based on the representation of counsel for the [3] governmental body that the records sought have never existed. The court has not found a State Supreme Court decision that discusses the procedure to be used when an agency says it is unable to produce records requested under RSA 91-A because there are no such records. However, the Supreme Court has held in other contexts that the similarity in purpose and content of the Right to Know Law to the federal Freedom of Information Act (FOIA) makes it appropriate to consider federal court decisions under FOIA when interpreting the state law. See Lamy v. N.H. Public Utilities Commission, 152 N.H. 106, 108 (2005); Lodge v. Knowlton, 118 N.H. 574, 577 (1978). Accordingly, the court has looked to federal cases discussing their approach under FOIA in these circumstances.
Where an agency determines that it does not have records requested under the Freedom of Information Act, the procedure under the federal statute has been described as follows:
The FOIA mandates full public disclosure of agency records unless the requested records "fall squarely" within one or more of the nine statutory exemptions. The court may award summary judgment solely on the information provided in affidavits or declarations that describe "the justifications for nondisclosure with reasonably specific detail . . . and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." When, as here, responsive records are not located, an agency is entitled to summary judgment if it establishes "beyond material doubt [] that it conducted a search reasonably calculated to uncover all relevant documents." For purposes of this showing, the agency "may rely upon affidavits . . . as long as they are relatively detailed and nonconclusory and . . . submitted in good faith." The required level of detail "set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials (if such records exist) were searched. . . ." "If the requester produces countervailing evidence placing the sufficiency [4] of the identification or retrieval procedures genuinely in issue, summary judgment is inappropriate." In determining the adequacy of a FOIA search, the court is guided by principles of reasonableness. An agency is required to produce only those records in its custody and control at the time of the FOIA request.
Blunt-Bey v. U.S. Department of Justice, 612 F.Supp. 2d 72, 73-74 (D.D.C. 2009) (citations and quotations omitted).
Conclusion
The procedure under the federal law is appropriate to resolve the issues in this case. Within ten (10) days of the date on the clerk of court's notice of this decision, the Town of Weare shall file an affidavit from a person with first-hand knowledge or submit other proof in the form described above, which substantiates its counsel's representation that the information requested does not exist. If, upon reviewing the Town's submission, Ms. Gericke is of the view that a genuine issue remains as to whether there are such items or that the Town's retrieval efforts were inadequate, she may file her own affidavits and evidence that contradict the Town's position. Her response shall be filed within ten (10) days of her receipt of the Town's filing. The court will treat the Town's answer to the Addendum as one for summary judgment on the issues raised by the Addendum. Unless the court determines a further hearing is necessary, the [5] ruling on the Addendum will be based on the parties' filings.
SO ORDERED.
1 The Addendum was not addressed until now because Gericke appealed the court's July 2010 order to the Supreme Court. The Supreme Court dismissed the appeal because there was no ruling on the issues raised in the Addendum. Counsel for Gericke requested a decision on the Addendum in correspondence to this court dated November 8, 2010, which is the same date on which the court received the Supreme Court's mandate.