Nolen v. City of Manchester, Doc. No. 216-2012-CV-682 (Strafford Super. Ct., October 19, 2012) (Garfunkel, J.)





Wallace S. Nolen


City of Manchester

Docket No. 216-2012-C-682


The court held a hearing on August 30, 2012, on the City of Manchester's (the "City") motion to dismiss Wallace S. Nolen's petition for access to public records. At the hearing, the court ordered the City to identify the information it is willing to produce and the City filed a response on September 7, 2012. Upon consideration of the parties' arguments, pleadings, and applicable law, the court GRANTS the City's motion to dismiss.

The undisputed facts are as follows. On August 4, 2012, Mr. Nolen made the following request through the City's website:

I hereby request that I be provided in the form of a database/spreadsheet (not a photocopy/pdf file/etc.) to be sent to me as an email attachment-(I do not want a CD/DVD or paper records) which contains the following information that shows or tends to show the following information relating to each and every employee of the City of Manchester NH: 1) The employee's full name (not merely initials); 2) The employee's official title(s); 3) The employee's salary; 4) The employee's voice telephone numbers (land line, cell, IP, etc.); 5) The employee's fax telephone number; 6) The employee's email address; 7) The employee's physical work address [not home address] including generic street address (i.e. 123 Main St), suite number/room number, floor or other designation; 8) Any other computer fields which are contained in the computer file(s) in above such as but not limited to: (a) earliest [2] possible retirement date; (b) sick days remaining/available; (c) vacation days remaining/available; In addition I would also like again in the same computer format anything would show or tend to show the names and titles of any volunteers who are members of any committee, authority, panel, etc. of your municipality. Wallace S. Nolen PO Box 1025 Montpelier VT 05601-1025 email: wallacenolen5

(Pet. 1.)

In response to Mr. Nolen's request, the City agreed to provide him with the following: (1) Employee's full name, title, and salary, to be produced on HR printout from database; (2) Employees' email addresses and voice telephones, to be produced on IT printout from database; (3) Employees' fax, which is listed on the City of Manchester Department Telephone Directory; (4) Employees' Physical Location, which is provided via website; (5) Employees' available sick days and vacation days, to be printed from HR database; and (6) Names and titles of volunteers who are committee members, which is located in a Red Book and is to be made available for inspection/copying/purchase. (Resp't's Response 1-2.) The City does not maintain records of an employee's earliest possible retirement date so it will not provide that information. (Id. at 2.)

At the hearing, Jane E. Gile, Human Resources Director for the City, testified that much of the requested information is located in various electronic records. To facilitate Mr. Nolen's request the City would create an electronic document that they would print for Mr. Nolen. Counsel for the City also stated that, as a matter of courtesy, the City can scan the printouts for Mr. Nolen. Mr. Nolen, however, claims that under the statute he is entitled to the requested [3] information in the form of a database that he can manipulate, and not simply a scanned PDF or paper document. The court disagrees.

RSA 91-A:4 provides:

Each public body or agency shall, upon request for any public record reasonably described, make available for inspection and copying any such public record within its files when such records are immediately available for such release.
[A]ny 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 . . . . 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 reasonably calculated to comply with the request in light of the purpose of this chapter . . . .

RSA 91-A:4, IV-V (2009).

Thus, the statute neither requires the City to provide copies of records to Mr. Nolen nor states that records must be provided in the format he demands. RSA 91-A:4; see Gallagher v. Town of Windham, 121 N.H. 156, 159 (1981) (stating the statute "does not contain language imposing an absolute duty on towns or agencies to provide copies of public records to citizens"); Hawkins v. New Hampshire Dept. of Health and Human Servs., 147 N.H. 376, 379 (2001) ("RSA chapter 91-A does not require HHS to compile data into a format specifically requested by a person seeking information under the statute.") Rather, the statute simply permits the City to provide records in printouts or a common electronic file format. In re Liquidation of Home Ins. Co., 157 N.H. 543, 553 (2008) (stating the general rule in statutes is that "the word 'may' is [4] permissive only, and the word 'shall' is mandatory") (quoting Appeal of Rowan, 142 N.H. 67, 71 (1997). This court will not add language to the statute that the legislature did not see fit to include. In re Brady, 145 N.H. 308, 311 (2000) (internal quotations and citations omitted) (stating courts "can neither ignore the plain language of the legislature nor add words which the lawmakers did not see fit to include.").

Additionally, to the extent the City produces the documents as outlined in its response, that production complies with RSA 91-A:4. The City has made available for inspection and copying the records within its files and has agreed to create a printout of those records that are contained in a computer database. This plainly complies with the statute. Further, to accommodate Mr. Nolen's request, the City has agreed to provide Mr. Nolen scanned copies of the printouts. The court finds those means comport with the purpose of the statute, which 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 Street North, LLC v. State Fire Marshal, New Hampshire Div. of Fire Safety, 163 N.H. 656, 660 (2012) (internal quotations marks and citations omitted).

Mr. Nolen cites Brownstone Publishers, Inc. v. New York City Dept. of Bldgs., 550 N.Y.S.2d 564, 566 (N.Y. Sup. Ct. 1990), in support of his proposition that he is entitled to the City's public records in a specific format. There, the trial court concluded that a paper copy of public records would not provide the petitioner with reasonable access to the information. Id. The court reasoned that [5] there were over one million pages and it would very costly and time consuming to produce the documents in paper form as opposed to electronic format. Id.

As noted at the hearing, however, that case from a foreign jurisdiction is not controlling on this court. In any event, unlike the petitioner in Brownstown Publishers, Mr. Nolen has not been denied reasonable access to the information he seeks. The City's response to Mr. Nolen's request complies with the statute and, as such, is not unreasonable.

In light of the foregoing, the City's motion to dismiss is GRANTED.


October 19, 2012    /s/   

David A. Garfunkel

Presiding Justice