The State of New Hampshire
ROCKINGHAM SUPERIOR COURT
Donna M. Green
v.
School Administrative Unit #55, et al.
218-2015-CV-00090
Final Order
Plaintiff Donna M. Green's complaint seeks relief under RSA 91-A. More specifically, she seeks an order requiring School Administrative Unit #55 ("SAU 55") to produce certain requested information in electronic form and seeks attorneys' fees in connection with the SAU 55's delay in producing a copy of a videotape. For the reasons stated below, the Court is unable to order the relief sought and enters judgment in favor of SAU 55.
Facts
The parties agreed at the start of the March 6, 2015 hearing that there are no material factual disputes between the parties. On January 21, 2015, Green, who is a member of Timberiane Regional School Board ("TRSB"), sought certain budget-related documents from SAU 55 for herself "and the school board." In that communication, Green did not indicate that the request was made pursuant to RSA 91-A. In response, Defendant Nancy Steenson, the chairperson of the TRSB, informed Green that as she was asking for copies of documents for all board members, she should first ask other board members to "weigh in" on the request.
Two days later, on January 23, 2015, Green informed SAU 55 that her document [2] request was pursuant to RSA 91-A:4. Three days later, on January 26, 2015, SAU 55 informed Green that the records she sought were available "for inspection and review" but requested that Green make an appointment to review the documents. Another three days later, on January 29, 2015, SAU 55 informed Green that the documents were "immediately available for public inspection." SAU 55, however, refused to provide the information in an electronic format.
Green filed her complaint on February 3, 2015. In addition to pursuing her demand that documents be produced electronically, Green seeks attorneys' fees in connection with a request in the summer of 2014 for a videotape of a July 2014 encounter between her and a certain SAU employee or employees. After this encounter, Green was informed that the SAU was investigating the incident and would consult with the police. During the March 6, 2015 hearing, counsel for the SAU made an offer of proof that three SAU employees would testify that they were instructed by the Plaistow Police Department not to turn over the video to Green while the police investigation was pending. The employees would further testify that they provided Green with a copy of the video in September of 2014 shortly after being informed by the Plaistow Police that they were free to do so. While Green stated her doubts about SAU's position on this issue, she did not seek to cross-examine the SAU witnesses or provide any contrary evidence from the Plaistow Police.
Analysis
I. Green Is Not Entitled to Electronic Copies.
Green's argument is based largely on the language in a 1973 New Hampshire Supreme Court case, Menge v. Manchester, 113 N.H. 533, in which the court held that the plaintiff was entitled to make copies of a "computerized tape" containing field record [3] cards associated with each parcel of property in Manchester. The court emphasized that it read amendments to the RSA 91-A as an instruction to resolve questions under the law "with a view to providing the utmost information."
The language in Menge is undoubtedly supportive of Green's position but it is limited by subsequent amendments to RSA 91-A, which in fairly plain language state that it is the choice of the public entity whether to produce documents in electronic or conventional format. RSA 91-A:4 V states that any "public body or agency which maintains governmental records in electronic format may, in lieu of producing original records, copy governmental records requested to electronic media. . . ." (emphasis added). By using the word "may" rather than "shall," the legislature clearly decided to give governmental units the discretion to provide documents stored electronically in either electronic or hard-copy form. For that reason, the Court rules that Green is not entitled to electronic copies. See also Nolen v. City of Keene, 09-E-0152 (J. Arnold) (holding that RSA 91-A did not require the City to provide records to the plaintiff by email).
The Court notes in passing that it finds persuasive Green's argument that the refusal of SAU 55 to provide by email electronic copies of budgets already in existence creates considerably more work for her. In civil litigation, it has become routine for parties to insist that documents be produced in native format for the very same reasons articulated by Green. If litigants are entitled to electronic documents, there may be a strong policy argument to be made for extending that same privilege to the public under RSA 91-A. But as noted by the counsel for the SAU, that is a decision for the legislature.
II. Green Is Not Entitled to Attorneys' Fees.
[4] SAU 55 argues that it is entitled to its attorneys' fees in connection with the videotape that was withheld by SAU 55 per the instruction of the Plaistow Police Department. As noted previously, Green has expressed skepticism about this instruction but did not presented any evidence to the contrary. Under Murray v. State Police, 154 N.H. 579, 582 (2006), a case that is relied on by SAU 55, documents in police investigative file may be exempt from disclosure under RSA 91-A if they meet certain criteria. Although it is unclear that this exception would apply to the videotape in question - the court in Murray noted that the interference with enforcement proceeding exception requires that the document be created for law enforcement purposes - the language of RSA 91-A:8 prevents an award of attorneys' fees. Under 91-A:8 I, attorneys' fees are awardable only if, inter alia, a lawsuit is necessary to ensure compliance with the statute. Here, there is no dispute that the videotape was provided by SAU 55 to Green well before the filing of the complaint in the above matter. Further, with respect to electronic records, the Court is ruling that Green is not entitled to documents in that format. For both reasons, Green is not entitled to an award of attorneys' fees.
For the foregoing reasons, judgment is awarded to Defendants.
So Ordered.