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Sunshine Week: Keene State students await judge’s decision on fight for public records

Monitor staff
Published: 3/17/2018 12:03:53 AM

The class assignment seemed straightforward enough: submit right-to-know requests to government officials, and use the information gathered from those requests to write a story.

Students in Keene State College professor Marianne Salcetti’s public records journalism class were ready to take on the challenge. They sent more than 20 requests to various institutions, including the college and the city of Keene, asking for records related to school enrollment and expenditures on police cruisers.

For a few students, the takeaway lesson turned out to be how hard government officials will work to deny access, and how to force their hand.

Students who submitted requests to the state Department of Corrections and to Keene State received answers. But the city of Keene dragged its feet answering requests for records on food inspections, police brutality and minors with alcohol violations, while releasing others.

City officials said students needed to be more specific in their requests, or submit them in person. In one case, a student had to rewrite a typed request by hand and resubmit it.

Senior Meridith King said she was told that her request for the city for policies explaining food inspection scores was denied because the city was “transferring data programs.”

“Their reasoning was fairly cryptic,” she said. “In my opinion, it seemed like a cop out.”

Eventually, five students were either told their requests could not be fulfilled, or they stopped getting any responses from the city at all.

To Salcetti and her students, the next step seemed clear.

“Normal everyday citizens don’t always have the information, time or resources to pursue something like this,” King said. “We felt we would be leaving citizens as a whole at a disadvantage by not pursuing this.”

“The only recourse to get the information we needed was to go to court,” Salcetti added.

State law (RSA 91-A) guarantees citizens the greatest possible public access to the actions, discussions and records of all public bodies. If a request continues to be denied, the only way to fight is to file a lawsuit.

Alex Fleming, a Keene State student from Concord, wanted information about how often minors were arrested for alcohol violations. He asked for any record related to citations for minors in possession of alcohol.

After a month, the city said it didn’t have a record listing “all citations,” therefore it did not have any public records to give him.

“91-A does not require the city of Keene to create a record that does not already exist, therefore your request is denied,” Keene Deputy Clerk William Dow wrote to Fleming in an email. “The City of Keene considers this matter concluded.”

Fleming would have reviewed any records the city had, including individual citations with the names of minors blacked out. It certainly seemed like the stopped short of providing the greatest possible access to its actions, Fleming said.

“We want the city to acknowledge what it did was not okay,” he said.

David Taylor, vice president of Right to Know NH, an organization that promotes open government, said an average of 15 right-to-know lawsuits are filed every year in New Hampshire, based on data he has compiled over a number of years.

Salcetti has taught her public records class at the college every other year for more than 10 years. She said a right-to-know component has always been part of the class, and students pick their own topics. Half of the requests are usually made to the city, Salcetti said.

Salcetti, a former reporter for several newspapers in the Cleveland area, knows public information requests can take time. But she said she’s never seen push-back from the city like she did during the fall semester with her public records class.

She said she felt the city was being “unnecessarily obstructionistic.” She even tried appealing with Keene’s new city manager, Elizabeth Dragon, when the requests were taking so long.

Salcetti said Dragon promised to get back to her in a week with more information, and then never returned her calls.

Salcetti is representing her students in the Cheshire County Court, and has already spent $300 of her own money on legal fees. In a preliminary hearing on Dec. 13, Keene’s city attorney, Thomas Mullins, filed a motion to dismiss the case because Salcetti is neither an attorney nor one of the five student plaintiffs.

But Judge David Ruoff said he could make an exception to that court rule, and asked Salcetti to provide copies of the students’ right-to-know requests to the court.

Salcetti said she sent Ruoff the requests, and that another hearing has yet to be scheduled.

On March 12, the city of Keene submitted a more than 20-page response to the court, saying that officials complied with RSA 91-A in their handling of the student’s requests.

City officials stated that they “made good faith efforts” to fulfill the student’s requests, but were ultimately unable to, which is why they denied the student’s request for the information. One argument city officials made for why they denied some student’s requests was that the city didn’t have the information in an accessible format.

Salcetti said she feels the students are more than entitled to the information they requested, but she said she feels their greatest hurdle may be the wording in the law.

“Unfortunately, New Hampshire’s right-to-know law currently has several loopholes, including defining what is data, what is a record and what is information,” she said.

RSA 91-A states that the public is entitled to “any information created, accepted, or obtained by, or on behalf of, any public body ... (including) any written communication or other information, whether in paper, electronic, or other physical form.”

Salcetti said the lawsuit with her students – who she called the “Keene State Five” – has transcended the classroom.

“This information is truly the public’s information,” she said. “The students not are just doing this for themselves anymore.”

Taylor said that if the students win the case, it would make an impact on how right-to-know cases are handled in the state.

“It’s a pretty novel thing, and will be precedent setting in some sense,” he said. “It will inform the public about what rights they have to access that kind of information.”

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