The Supreme Court of New Hampshire (the “Court”) recently addressed the standards for a municipality to comply with the state’s Right-to-Know Law in a case where a member of the public sought property-tax abatement records from the City of Nashua’s Assessing Department. In Ortolano v. City of Nashua, No. 2022-0237 (N.H. Aug. 18, 2023), the Court ordered the City to conduct a reasonable search of its backup tapes, concluding that those records were “readily accessible” under the Right-to-Know Law because they were accessible to the municipality’s information technology department, could be retrieved and searched within a few hours, and had been accessed to satisfy other Right-to-Know Law requests.
Pursuant to New Hampshire’s Right-to-Know Law, RSA ch. 91-A, Laurie Ortolano emailed the City of Nashua’s Director of Administrative Services on June 16, 2021, seeking emails sent and received by two current city employees and one former employee during a specified period. The City responded that the two current employees would conduct reasonable searches for responsive records, but stated that it lacked reasonable access to the former employee’s emails, whose employment had ended almost six months prior. Ortolano sued the city on July 19, 2021.
The City provided records on its two current employees to Ortolano on September 3 and 17, 2021. Ortolano requested more records on September 17, including emails of other employees for a specified period that ended the last day of work of the former employee. The City stated that it would not duplicate emails already provided, but would conduct reasonable searches for the records and provide a response on October 18, 2021. The City produced further records on October 29, 2021, relating to one of the employees.
The trial court held a bench trial in December 2021 and heard testimony from the City about its email retention and storage policies and practices. That testimony indicated that certain of the emails Ortolano requested had been deleted automatically after a specified time, but that such files were saved to the City’s backup tapes. Additionally, a search of those backup tapes for responsive files could be conducted in a few hours, but no such search had been done. The City claimed it was not required to do so because those records were not “readily accessible” and therefore not required by the statute to be searched.
The trial court ordered the City to conduct a reasonable search of its backup tapes, rejecting the arguments that the backup records were not readily available and ordering the City to undertake remedial training to avoid further violations of the Right-to-Know law. The trial court denied the City’s motion for reconsideration but withheld final decision on the required remedial training until further submissions were made.
On appeal, the Supreme Court began by reviewing the Right-to-Know Law’s purpose of ensuring public access to records of public bodies to promote accountability. Further, the Court noted it would defer to the trial court’s factual findings if supported by the record and not legally erroneous but conduct a de novo review of the lower court’s legal conclusions.
The Court quoted RSA 91-A, III-b, which exempts certain electronic records, highlighting that electronic records are considered deleted only if no longer readily accessible to the public or an agency, but that merely transferring such records to another location was not considered deletion. Accordingly, the Court quickly rejected the City’s argument that the trial court erred in concluding the backup records were readily accessible, finding the City’s position unpersuasive that the records were not accessible by the Assessing Department when they were readily accessible by the IT Department. Instead, the Court found persuasive the testimony from the City’s IT Director that a search of the backup tapes would take only a few hours and searches of backup tapes had previously been run for Right-to-Know requests. Likewise, the Court rejected the City’s contention that certain emails had been legally deleted under the statute, concluding that the statute considered the emails not deleted because they remained readily accessible to the City through the backup tapes.
Additionally, the Court rejected the City’s arguments that the trial court erred in requiring remedial training without setting specific details for that training. The Court found no error by the trial court’s asking for supplemental submissions before issuing a separate order detailing that training. Further, the Court rejected the City’s arguments as premature that the training was not necessary because the City underwent training provided by the New Hampshire Municipal Authority, which interpreted the Right-to-Know Law consistent with the position the City had argued in this matter. Accordingly, the Court affirmed the trial court’s decision and remanded for further proceedings consistent with its ruling.
In an article published by the New Hampshire Union Leader, Laurie Ortolano said she was “‘very relieved’” by the Supreme Court’s opinion as it meant she was closer to obtaining the records requested, although she expected the City to seek reconsideration. The article indicated Ortolano sought records on property-tax abatements that included security camera footage from the assessor’s office, as well as video recordings of police-conducted interviews of City staff as part of an assessor’s department inquiry that did not result in any charges being filed. The Union Leader quoted the trial judge as having noted the footage was not of great public value, but that the City’s interest in not disclosing the material was miniscule.
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