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Taylor v. School Administrative Unit #55

Supreme Court of New Hampshire

September 21, 2017

DAVID K. TAYLOR
v.
SCHOOL ADMINISTRATIVE UNIT #55

          Submitted: June 21, 2017

          David K. Taylor, self-represented party, by brief.

          Drummond Woodsum & MacMahon, of Portsmouth (Demetrio F. Aspiras and James A. O'Shaughnessy on the brief), for the defendant.

          LYNN, J.

         The plaintiff, David K. Taylor, appeals a decision of the Superior Court (Anderson, J.) entering judgment in favor of the defendant, School Administrative Unit #55 (SAU), in the plaintiff's Right-to-Know lawsuit. See RSA ch. 91-A (2013 & Supp. 2016). He argues that the trial court erred in interpreting certain provisions of RSA chapter 91-A and erroneously concluded that the SAU's policy for transmitting public records complied with the statute. We affirm.

         The pertinent facts are as follows. On May 12, 2016, the SAU's Board (the Board) held a regularly-scheduled meeting. During the meeting, the Board voted to go into nonpublic session to discuss two topics: the superintendent's evaluation, and "emergency functions." While in nonpublic session, the Board voted to seal the minutes of the meeting.

         In June 2016, the plaintiff asked the executive assistant to the superintendent to send him the minutes of the May 12 nonpublic session by e-mail. She informed the plaintiff that she could not provide him with those minutes because they were sealed. On July 15, the plaintiff e-mailed the executive assistant again, asking her to forward to him, by e-mail, a June 22 e-mail regarding the nonpublic session that had been sent to the Board. The executive assistant again denied the plaintiff's request, referring him to the SAU's Right-to-Know procedure. The procedure requires members of the public seeking electronic records to come to the SAU's offices with a thumb drive in sealed, original packaging or to purchase a thumb drive from the SAU at its actual cost of $7.49.

         In August, the plaintiff filed a complaint in the trial court in which he alleged that the SAU had violated RSA chapter 91-A by voting in closed session to seal the minutes of the nonpublic session of the May 12 meeting and by refusing to forward to him, by e-mail, the records he requested. He also challenged the SAU's practice of charging 50 cents per page for hard copies of public records. The plaintiff sought the following relief: invalidation of the vote to seal the minutes of the nonpublic session; release of the sealed minutes; a declaration that the SAU's thumb drive policy violates RSA chapter 91-A; an order requiring transmission of the requested records to him by e-mail; other injunctive relief; and litigation costs.

         After the complaint was filed, the SAU acknowledged that the Board had violated RSA 91-A:3, III, which requires that votes to seal minutes of nonpublic sessions be "taken in public session." RSA 91-A:3, III (Supp. 2016). On August 29, the Board voted, in a public session, to seal only the portion of the nonpublic session concerning emergency functions. The portion of the minutes regarding the evaluation of the superintendent was released, with one sentence redacted.

         Following a hearing, the trial court ruled that the SAU's policy for transmitting public records complied with RSA chapter 91-A. Because of the SAU's decision to keep sealed only the portion of the nonpublic session with respect to emergency functions, the trial court also found that the plaintiff's challenge of the SAU's action was "moot in all but one respect, " specifically, the single redacted sentence of the superintendent's evaluation. On this issue, the court ordered that the SAU provide it with an un-redacted copy of the public minutes for in camera review.

         The trial court also determined that the petitioner's lawsuit had been necessary to ensure the Board's compliance with RSA 91-A:3, and, therefore, awarded him litigation costs. However, the trial court ruled that the plaintiff had no standing to challenge the cost of paper copies, because there was no evidence that he had asked for, or paid for, such copies. The trial court also found that the Board did not violate RSA 91-A:3, III by producing two sets of minutes for the May 12 meeting, one containing the public portion and the other the sealed portion. Finally, the court declined to enter the injunctive relief sought by the plaintiff.

         The plaintiff moved for reconsideration, which the court denied. In denying the motion, the court determined "that the privacy interest of certain employees in non-disclosure outweighs the public interest in disclosure of the single redacted sentence which concerns employees who are subordinate to the superintendent." This appeal followed.

         On appeal, the plaintiff first argues that the SAU's policy for transmitting public records violates RSA chapter 91-A. Next, he asserts that the cyber security concerns cited by the SAU in support of its public records transmission policy are undermined by the SAU's regular use of e-mail. He also argues that the SAU's policy is unreasonable and therefore unconstitutional. Finally, he contends that the legislative history of the 2016 amendment to RSA 91-A:4, IV supports the free delivery of electronic records. Because the issues the plaintiff raises require us to determine whether the trial court correctly interpreted the Right-to-Know Law, our review is de novo. New Hampshire Resident Ltd. Partners of Lyme Timber Co. v. New Hampshire Dep't of Revenue Admin., 162 N.H. 98, 102 (2011).

         "The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 660 (2012) (quotation omitted). "It thus furthers our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted." Id.; see also N.H. CONST. pt. I, art. 8. "Although the statute does not provide for unrestricted access to public records, we resolve questions regarding the Right-to-Know Law with a view to providing the utmost information in order to best effectuate these statutory and constitutional objectives." 38 Endicott St. N., 163 N.H. at 660. "As a result, we broadly construe provisions favoring disclosure and interpret the exemptions restrictively." Green v. Sch. Admin. Unit #55, 168 N.H. 796, 799 (2016) ...


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