French v. Herman, Doc. No. 219-2014-E-105 (Strafford Super. Ct., August 13, 2014) (Tucker, J.)


The State of New Hampshire


No. 219-2014-cv-105

Dr. Richard A. French


University of New Hampshire


Dr. Richard A. French seeks an order directing the University of New Hampshire to provide him with records it has not yet released in response to his request under the Right to Know Law (RSA 91-A). The complaint is granted in part and denied in part.


Dr. French served the University with a request for

[a]ll e-mail, written and recorded communications (recorded minutes and records) regarding the New Hampshire Veterinary Laboratory (NHVDL, a.k.a. Vet lab, diagnostic lab, etc.) the NHVDL, Director, and myself (Dr. Richard A. French) to and from Dean Thomas Brady, interim Dean Jon Wraith, Dean Jon Wraith and departmental chair and supervisor Rick Cote, from the period of January 1, 2010 through to the date of this letter July 01, 2013.

He asked that these records include (a) communications between either Dean Brady or Dean Wraith with 15 state and University officials regarding the Veterinary Laboratory; (b) documents and [2] notes from meetings with Dean Wraith and Tina Sawtelle on two specified dates; (c) his personnel file; and (d) written certifications that the search for records was thorough and includes all requested correspondence.1

The University argues for two limitations on its duty to disclose the documents. First, it contends production should be restricted in time by a settlement it reached with Dr. French, who was formerly employed by the University. Second, it asserts Dr. French should pay the costs associated with locating and reviewing the documents.

The University starts with a description of the state of its relationship with Dr. French. It notes he was employed by the University, but they severed their relationship under the terms of a Release Agreement. The agreement required the University to make a severance payment to Dr. French, reimburse his COBRA premiums, and continue the Dependent Tuition Benefit for his children. In exchange, French resigned from the University, agreed to stay off the University campus without first notifying University police, and released the University "from all claims, causes of action, suits and demands ... by means of any matter, cause or thing whatsoever...," as of the date of the Release. University's Answer, ¶¶ 3-4. In response to his RSA 91-A filing, the University gave Dr. French his personnel file, but it asks that other production be [3] limited to documents generated after the date of the Release Agreement.

The University also seeks an order requiring Dr. French to pay the costs associated with searching, printing, reviewing, and potentially redacting or objecting to the documents requested. The University estimates these will total approximately $4,000.00. In support of this argument, it cites a superior court order in a different case, and case law interpreting statutes similar to RSA 91-A.


Depending on any applicable exemptions, the documents are either subject to full or partial disclosure under the Right to Know law, or they are not. Any person could request the records sought by Dr. French, and he has as much right to inspect and copy non-exempt documents as anyone else. Therefore, I disagree with the University that the Release Agreement limits the production required under RSA 91-A.

At this juncture, I decline to order Dr. French to pay costs other than those required by statute, which does not include expenses incurred in several categories identified by the University. Under RSA 91-A:4, IV, "[i]f 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 [4] be charged the actual cost of providing the copy, which cost may be collected by the public body or agency." The Grafton County Superior Court relied on this section when it ruled that a person seeking documents under the Right to Know Law was responsible for costs resulting from a town's search through hard drives on which it stored the records sought. See University's Answer, (Exhibit 5), Order at 2. But in that case, the town had to utilize services of a third party to find the records. In this case, it is the University that will conduct the search.

The University may recover its "copying" costs, as limited by the statute's definition of what it means "to copy." Therefore, it may charge Dr. French for "the reproduction of original records by whatever method, including but not limited to photography, photostatic copy, printing, or electronic or tape recording." RSA 91-A:4, I. These costs are essentially those associated with duplication. The statute does not provide for other costs the University seeks for "locating, reviewing, redacting, or objecting to" the documents. In this respect, the New Hampshire law is narrower than the federal Freedom of Information Act, which allows agencies to charge for costs incurred in "searching" for records, as well as in duplicating them. See 5 U.S.C. § 552 (a)(4)(a)(ii)(III) (permitting fees based on "reasonable standard charges for document search and duplication."); 5 U.S.C. § 552 (a)(3)(D) ("search" means "to review, manually or by automated [5] means, agency records for the purpose of locating those records which are responsive to a request.")


The application of Dr. French for an order directing the University to address the balance of his right to know law request is granted. While the University is obligated make a good faith effort to comply with the request, Dr. French cites no authority for the proposition that the University or its officials must provide a written certification that their search for documents was complete. Therefore, that request is denied. The request for an order for disclosure of Dr. French's personnel file is denied as moot, since the University complied with this demand previously.

The University may recover costs connected with "copying" records as that term is used in the statute. Once the actual costs and their sources are known, either party may file a further pleading should they disagree on what that term encompasses.

It was necessary for Dr. French to file a complaint in order to obtain the records without the conditions sought by the University. Accordingly, the plaintiff is awarded his costs in an amount to be determined by the clerk of court.



Date: August 13, 2014    /s/ Brian T. Tucker   

Brian T. Tucker

Presiding Justice

1 With some justification, the University complained that the request is unclear. The parties sought to clarify it at the hearing on the complaint, but the University is free to request further specificity.