The State of New Hampshire
MERRIMACK, SS SUPERIOR COURT
Paul Twomey
v.
New Hampshire Department of Justice
Docket No. 10-CV-503
ORDER
Petitioner, Paul Twomey, proceeding pro se, brought this Petition for Declaratory Judgment against Respondent, the New Hampshire Department of Justice ("NHDOJ"), requesting the Court: (1) "declare null and void the policy of the [NHDOJ] that states that 'legally deleted' materials that continue to exist on backup tapes are not subject to the Right to Know Law, RSA 91-A."; (2) "hold[] that backup tapes of the NHDOJ are subject to the Right to Know Law"; (3) "[e]njoin the [NHDOJ] . . . from . . . further eras[ing] . . . backup tapes . . . ."; and (4) "[o]rder the [NHDOJ] to conduct a forensic evaluation of all remaining tapes in order to determine whether material responsive to pending Right to Know requests still exists on [them] . . . ." (Pet. For Decl. J., at 1, 6.) On September 8, 2010, the Court held a merits hearing, after which the parties filed memorandums of law. For the reasons stated below, Petitioner's requests for declaratory relief are DENIED.
I
On July 15, 2009, the NHDOJ issued a policy memorandum concerning New Hampshire's Right-to-Know Law. The memorandum stated in relevant part: "While courts have not yet addressed the issue, it is our view that electronic records that have [2] been legally deleted and are available only on system back-up storage media are properly treated as no longer subject to disclosure under RSA 91-A:4, III-b." On March 11, 2010, Petitioner filed his Right-to-Know request with the NHDOJ, asking for records related to Harry Thorton Hinman, an individual who had allegedly received information relevant to potential election law violations and the involvement of the New Hampshire Attorney General's Office. Petitioner's request asked for records from April 3, 2003 to present. On July 9, 2010, the NHDOJ issued a press release concerning a supplemental release of Attorney General Ayotte's emails. The press release stated that Attorney General Ayotte's emails from May, June, and July 2009, which existed only on back-up tapes, would be released, but prior months had been erased in accordance with the July 15, 2009 policy memorandum.
At the merits hearing, the parties disputed whether the NHDOJ's back-up tapes were governmental records within the meaning of the Right-to-Know Law. Respondent presented evidence, including the testimony of two witnesses: Sally Gallerani, Director of the Department of Information and Technology ("DoIt") for the State of New Hampshire; and Peter Hastings, Interim Commissioner of the Department of Technology for the State of New Hampshire. Ms. Gallerani and Mr. Hastings testified that the State backs up its agencies' computer servers solely for disaster recovery. They testified that the purpose of the back-up tapes is to restore agency servers in the event agency computers are destroyed or compromised, not to collect and maintain governmental records for public inspection. State agencies have no access to the back up tapes. Ms. Gallerani testified that the tapes could not be relied on for agency operation because they does not necessarily contain all of the information on a computer during a day, but simply take a snapshot of [3] what is on a computer at a particular time and preserves it. They further testified that a back-up tape does not create new information.
The back up tapes are not searchable. DoIt performs a backup of the Department of Justice's (DOJ) servers on a daily, weekly and monthly schedule. Other agencies also have backup schedules. From May 2009, to May 2010, the size of information stored on DOJ's servers alone grew from 673 GB to 1212 GB. The current cost of backup tapes alone is approximately 42,000 dollars. The cost is relatively low, because the tapes are now overwritten, although overwriting has ceased during the pendency of this litigation. Under RSA 5:38, if each backup tape is a government record, each tape would need to be maintained for 4 years. Without even taking into account this growth, or any other costs, the cost of backup tapes to the Technical Support Division would exceed 1 million dollars if they were considered government records. Because the back up tapes are not searchable, both Mr. Hastings and Ms. Gallerani testified without dispute that if the DoIt were required to respond to Right to Know requests regarding the back up tapes for all State agencies, the amount of staff time required would be so great that DoIt would be unable to perform its other basic functions.
II
The parties agree that the critical issue here is whether the back up tapes are governmental records within the meaning of RSA 91-A. Petitioner argues that the back-up tapes of all State departments, including the NHDOJ, constitute governmental records within the meaning of the Right-to-Know Law. The NHDOJ objects, arguing that a back-up tape itself is not governmental record within the meaning of the statute.
"The purpose of the Right-to-Know Law is to 'ensure both the greatest possible [4] public access to the actions, discussions, and records of all public bodies, and their accountability for the people.'" N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 438 (2003) (quoting RSA 91-A:1)). "The Right-to-Know Law 'helps further our State Constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted.'" Id. (quoting Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 553 (2002)). The Court "'resolve[s] questions regarding the [Right-to-Know] [L]aw with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents.'" Id. at 439 (quoting Goode, 148 N.H. at 554). "The party seeking nondisclosure has the burden of proof." Id. "[T]he Right-to-Know Law requires governmental agencies to maintain public records in a manner that makes them available to the public." Id. Whether the electronic back-up tapes of the NHDOJ constitute public records within the meaning of the Right-to-Know Law requires the Court to interpret RSA chapter 91-A.
The interpretation of a statute is a question of law for the Court to decide. Hawkins v. N.H. Dep't of Health and Human Servs., 147 N.H. 376, 378 (2001). When examining the language of a statute, the Court ascribes the words and phrases used their plain and ordinary meaning. State v. Njogu, 156 N.H. 551, 552 (2007). Where the language of a particular statutory provision is at issue, the Court focuses "'on the statute as a whole, not on isolated words or phrases.'" Hawkins, 147 N.H. at 378-79 (quoting Snow v. Am. Morgan Horse Assoc., 141 N.H. 467, 471 (1996)).
RSA 91-A:1-a, III defines "governmental records" as "any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority [5] thereof, or any public agency in furtherance of its official function." The statute also states that "governmental records" includes the term "public records." Id. RSA 91-A:1-a, IV defines "information" 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."
In this case, the back-up tapes themselves cannot be considered governmental records within the meaning of RSA 91-A:1-a because they do contain "information". On their own, the back-up tapes are not knowledge, opinions, facts or data of any kind. Rather, they are electronic storage devices used to hold and maintain information, much like a file cabinet is used to hold and maintain documents. Petitioner argues, that nonetheless, the information on the back-up tapes, specifically former Attorney General Ayotte's emails and schedules, are governmental records within the meaning of the Right-to-Know Law. Petitioner therefore asserts that the back-up tapes containing this information are subject to a Right-to-Know request. The NHDOJ objects, arguing that the back-up tapes contain copies of records stored on State agency computers and are not the official means by which the NHDOJ complies with the Right-to-Know Law.
As stated earlier, a governmental record is any information created, accepted, or obtained by a public agency "in furtherance of its official function." RSA 91-A:1-a, III. Whether information is created, accepted, or obtained by a public agency in furtherance of its official function requires the Court to look at the purpose for which the record was created, accepted, or obtained because "[t]he public is not entitled to those tapes made by the record-keeper which do not have an official purpose." Brent v. Paguette, 132 N.H. 415, 421 (1989). Illustrative of this concept is Brent. There, the governing board of SAU [6] 51 held a meeting to discuss its superintendent's contract. Id. During the meeting, the plaintiff began "saying things" about the superintendent which the superintendent considered slanderous. Id. The superintendent recorded the remarks on his personal Dictaphone for his own use in the event that he decided to take legal action against the plaintiff in the future. Id. The plaintiff subsequently requested a copy of the tape under the Right-to-Know Law. Id. In affirming the trial court's denial of the plaintiff's request, the New Hampshire Supreme Court held that the superintendent did not make the tape for an official purpose, but for his own, personal use. Id. Accordingly, the Court held that the tape was not a public record within the meaning of the Right-to-Know Law. Id.
Similarly, in Menge v. City of Manchester, 113 N.H. 533, 537 (1973), the plaintiff requested the defendant release a computerized tape of certain field record cards the defendant had compiled for use in arriving at its real estate tax assessments. The defendant denied the plaintiff's request, arguing that neither the field record cards nor the computerized tape were public records within the meaning of the Right-to-Know Law. Id. at 536. The trial court agreed with the plaintiff. Id. at 534. On appeal, the New Hampshire Supreme Court held that the field record cards and computerized tape of the field record cards were public records within the meaning, of the Right-to-Know Law. Id. at 537. In support of its conclusion, the Court quoted RSA 8-B:7, which defined a "record" as any "'document, book, paper, photograph, map, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business.'" Id. In sharp contrast to the instant case, the tapes in Menge were actually used by the City in arriving at real estate tax assessments. Id. at 534. Moreover, in Menge the Court noted that the computerized tapes were a more [7] efficient way to obtain information the plaintiff was entitled to: "[t]he ease and minimal cost of the tape reproduction as compared to the expense and labor involved in abstracting the information from the field cards are a common sense argument in favor of the former." Id. at 538. Here the State agencies do not even have access to the tapes, they are not searchable and are not even necessarily complete.
As Ms. Gallerani and Mr. Hastings testified, the State creates back-up tapes of its agencies' computer servers solely for disaster recovery. The back-up tapes are not intended to serve as the record copy of any electronic information or as a record retention tool. The law does not require the State to make back-up tapes and the back-up tapes are not made in connection with the transaction of official business. Moreover, the NHDOJ asserts that the type of governmental records Petitioner has requested are officially retained on State agency computers for the statutory retention period, a fact which Petitioner does not dispute. Providing emails and schedules from those servers is the official way the NHDOJ complies with Right-to-Know requests similar to Petitioner's request.
Finally, the Court gives weight to the testimony that if the backup tapes were considered subject to the Right to Know Law, responding to such requests would require all of the time of the DoIt. It is true, as Petitioner argues, that a court may not consider the issue of cost of production in determining whether a document is a public record. Hawkins v. N.H. Department of Health and Human Services, 147 N.H. 376, 380 (2001). But in Hawkins the Court rejected the defendant's claim that it need not produce a Medicaid claim forms upon which it relied, simply because the documents were computerized, and production would cost $10,000. Here the extraordinary demand which [8] would be placed upon the State if Petitioner's position was accepted is relevant for another purpose. Ultimately, the issue of what the Right to Know Law means is an issue of legislative intent. It is well settled that when construing a statue, a court must construe all parts of the statute to effectuate its purpose and avoid an absurd result. State v. Villeneuve, 160 N.H. 342, 346 (2010). To interpret RSA 91-A as the Petitioner requests would mean that the entire staff of the DoIt would be involved in doing nothing but responding to requests under RSA 91-A. Such a result is absurd, particularly when the purpose of the statute is effected by production of material actually relied upon by State agencies. Such a result could not have been intended by the legislature.
Thus, for the foregoing reasons, the Court finds that the back-up tapes at issue are not governmental records within the meaning of RSA 91-A:1-a. See Stewart v. United States Dep't of Justice, 554 F.3d 1236, 1244 (10 Cir. 2009) (finding that back-up tapes are used solely for disaster recovery and are not the official way the United States Department of Justice complies with the Freedom of Information Act).
III
Petitioner also argues that the Court should "declare null and void the policy of the [NHDOJ] that states that 'legally deleted' materials that continue to exist on backup tapes are not subject to the Right to Know Law . . . ." However, "in cases in which public records, including emails, are properly disposed of in accordance with a duly adopted records-retention policy, there is no entitlement to those records" under the Right-to-Know Law. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. Of Commrs., 899 N.E.2d 961, 970 (Ohio 2008) (construing a similar statute). Accordingly, the Court declines to declare null and void the policy of the NHDOJ that states that 'legally deleted' materials [9] that continue to exist on backup tapes are not subject to the Right to Know Law.
Petitioner also appears to argue for the first time in his post-trial memorandum that the emails and schedules he requested were illegally deleted from the NHDOJ's computer server before the statutory retention period expired. Thus, Petitioner appears to assert that the NHDOJ should be required to produce the requested documents from the back-up tapes. Petitioner claims he is entitled to the governmental records at issue on the ground that the records were illegally deleted during the statutory retention period. He did not assert this argument in his petition nor did he raise it at the merits hearing. Accordingly, the Court declines to address this claim.
In sum, the Court finds that the back-up tapes at issue are not governmental records within the meaning of RSA 91-A:1-a. Accordingly, Petitioner's requests for declaratory relief are DENIED.
SO ORDERED.