Court delivers right-to-know win

By ANNMARIE TIMMINS

New Hampshire Bulletin

Published: 08-21-2023 3:30 PM

The state Supreme Court issued a unanimous ruling Friday that will make it harder for cities, towns, and other agencies to deny access to public documents. It’s at least the fourth court ruling upholding the state’s right-to-know-law in a year and the second involving the city of Nashua.

Friday’s ruling stems from a 2021 right-to-know request Laurie Ortolano of Nashua filed with the city seeking email correspondence between several current and former city employees. The city provided Ortolano with some of the records but said it did not have “reasonable access” to the emails of one former employee, according to the opinion released Friday.

Ortolano sued.

During a trial in Hillsborough County Superior Court in Nashua, the city’s deputy director of information technology testified that the former employee’s emails may be available through a search of the city’s backup tapes. He estimated it would take the city about two additional hours to search those tapes.

Following the testimony, Superior Court Judge Charles Temple ordered the city to search the backup tapes, rejecting the city’s argument that the employee’s emails were not “readily accessible,” as required by the state’s right-to-know law, RSA 91-A.

In his ruling, Temple wrote, “It is undisputed that the city’s backup tape system exists, can be searched, and that files such as those requested by the petitioner are retrievable from the backup tapes.”

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Temple also ordered the city to pursue training on the right-to-know law. The city appealed to the state Supreme Court.

In their opinion, the justices noted that the state’s right-to-know law is intended “to ensure both the greatest possible public access to the actions, discussions, and records of all public bodies and their accountability to the people.”

The justices concluded that the search of the backup tapes was “far from” the “time-consuming fishing search” the city had claimed.

In October, the state Supreme Court overturned Temple’s findings in another right-to-know lawsuit filed against the city of Nashua.

In that case, the city had denied resident Laura Colquhoun’s right-to-know request for all email correspondence between two city employees over a two-month period. In denying Colquhoun’s request in March 2021, the city said her demand for “all email” was overbroad, despite its focus on two people in a short timeframe.

Temple ordered the city to produce the records but denied Colquhoun’s request for attorney’s fees.

Colquhoun appealed to the state Supreme Court and won attorney’s fees in a 3-2 decision that right-to-know advocates called an important win because the law does not guarantee the recovery of those costs. A bill that would have made attorney’s fees easier to obtain, House Bill 307, cleared the House this year but was retained by the Senate.

In other recent rulings, a Sullivan County Superior Court judge ordered the release of disciplinary records that led to the termination of former Claremont police officer Jonathan Stone, as well as nearly a dozen internal affairs investigations.

In May, a Merrimack County Superior Court judge ordered the Department of Safety to release personnel records for former state trooper Haden Wilber, fired for misconduct. In his ruling, Judge John Kissinger wrote “the public has a very strong and compelling interest” in knowing whether Wilber’s personnel file contained incidents of misconduct and how the department was supervising its officers and employees.

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