The state Supreme Court has issued what attorneys are calling another victory for members of the public seeking access to government records. In a 3-2 decision, the majority affirmed protections under the state’s right-to-know statute, including the right to attorneys’ fees.
“What struck me here is that the court really puts the onus on the public body to educate themselves about the law,” said attorney William Chapman, who has handled right-to-know cases for the media and others for years. “So[a government agency]just can’t say, ‘I don’t think the request adequately described the records that the requester wants.'”
The opinionissued October 26, follows two other recent court orders seeking to protect and expand access to public records under the Right to Knowparticularly those relating to the conduct of police officers.
A judge in Sullivan County Superior Court in early October ordered the release of disciplinary files leading to the firing of former Claremont Police Officer Jonathan Stone; and nearly a dozen internal investigations. The union leader and ACLU-NH joined the case.
In May, a Merrimack County Superior Court judge ordered the Department of Security to release the personnel records of former State Trooper Haden Wilber, who was fired for misconduct. In his to rule, Judge John Kissinger wrote that “the public has a very strong and compelling interest” in knowing whether Wilber’s personnel file contained incidents of wrongdoing and how the department supervised its officers and employees.
ACLU-NH sought these recordings as part of a request for information. The state is attractive.
The order, which was issued last month, comes after the city of Nashua denied a request by resident Laura Colquhoun for all email correspondence between two city employees over a two-month period. When the city of Colquhoun denied requests for information in March 2021, it said its request for “all emails” was excessive, despite focusing on two people in a short time frame.
Colquhoun sued the city in a high court, demanding both the records and payment of her legal fees. In its defense, the city told the court that Colquhoun’s request was so broad that it was too cumbersome to respond.
It said the records could be in any of approximately 29,000 files within the department. The city also argued that an email search could turn up “hundreds of pages” of correspondence and that it could not be sure of having found “all” the records as requested. It also said Colquhoun did not “adequately describe” the records she sought, as required by the Right to Know.
Judge Charles Temple dismissed those arguments on a number of grounds, noting that the city “quickly” uncovered nearly 547 email messages within six days of Colquhoun’s request.
In his order, Temple quoted from the State’s Right of Access Act: “Any public entity or agency shall make available upon request all reasonably described governmental records for inspection and for copying of such governmental records in its files, if such records exist immediately for.” such a release available.”
And Temple decided that the city’s inability to say with certainty that it had found “all” records was no justification for searching for records and producing none. Chapman said if a public entity cannot provide all requested records at once, it should release records as soon as it collects them. In one case he worked on, the state provided records spanning several months.
However, Temple denied Colquhoun’s request for attorneys’ fees, finding no evidence that “the city knew or should have known that its conduct violated the Right to Know,” a standard required to award attorneys’ fees.
Colquhoun appealed the denial to the state Supreme Court and won, with Justices Gordon MacDonald, Gary Hicks and Pat Donovan remanding the case to the Supreme Court to determine the cost of Colquhoun’s legal fees.
In their dissent, Justices James Bassett and Barbara Hantz Marconi contested the award of attorneys’ fees, stating that because neither the legislature nor the state Supreme Court have “adequately described” when it comes to requests for information, the city appropriately addresses the courts have turned elsewhere for guidance. Other courts, they wrote, have found that courts elsewhere have found a request for “all” emails without specifying a subject to be too broad.
“I was glad that attorneys’ fees were awarded because I don’t think the city’s response was appropriate,” said attorney Greg Sullivan, representing the union leader. “They knew they could get their hands on at least some information responding to their request. But they didn’t do that until after she filed a lawsuit. Then we suddenly got 547 emails.”
Two years ago, Sullivan tried a case in the Supreme Court on behalf of a Keene State College journalism professor and five students whose right to know had been largely denied by a higher court. The Supreme Court rejected these statements.
“Over the years, and really thanks to the Supreme Court, the light of public scrutiny shines more than ever on government actions,” Sullivan said. “But that doesn’t mean we don’t have to keep working on it.”