New Hampshire
The state law leaves
agencies a lot of leeway when it comes to the format in which they must provide
records. In some cases, an agency may choose to provide a computer printout
in lieu of an actual database. However, in some cases courts have ordered agencies
to provide computer records of hard copy. In addition, agencies may charge fees
for geographic information systems.
The law.
The Right to Know Law does not define public records, but provides that "any
body or agency which maintains its records in a computer storage system may,
in lieu of providing original documents, provide a printout of any record .
. . which the agency has the capacity to produce in a manner that does not reveal
information which is confidential." The statute grants a right of inspection
and copying to a requester. N.H. Rev. Stat. Ann. § 91-A:4, para. V (1990).
RSA 91-A:4 does not require public officials to retrieve and compile into a list random information gathered from numerous documents, if a list of this information does not already exist. Brent v. Paquette, 132 N.H. 415 (1989).
The state legislature
has made clear in the voter checklist laws that records pertaining to that issue
may be requested either in hard copy or on computer disk. R.S.A. 654:31.
Cases & opinions. Computer records are not exempt from the public records law. In a case decided before the legislature added the "computer storage system" clause to the statute, the Supreme Court ordered a public agency to copy a computer tape rather than require a researcher to examine 35,000 cards containing the same information. Menge v. City of Manchester, 311 A.2d 116 (N.H. 1973). However, the legislature passed a measure in 1986 that invalidated the court decision, amending the statute to give agencies discretion to provide computer printouts or copies of source documents without regard to cost or usage by the requester. A computer tape of the names of subscribers to the New Hampshire
Sweepstakes Commission’s
weekly game is subject to the Right to Know Law. Subscribers do not have an
expectation of privacy when they enter the program, so the tapes are subject
to public inspection. N.H. Op. Att’y Gen. 84-60-I (April 17, 1984).
In Hawkins v.
New Hampshire Department of Health and Human Services, the state supreme
court found that the Department of Health and Human Services is not required
to create new records. "RSA chapter 91-A does not require HHS to compile
data into a format specifically requested by a person seeking information under
the statute. It does, however, require that public records received by HHS be
maintained in a manner that makes them available to the public. See N.H. Rev.
Stat. Ann § 91-A:4, III-V. The trial court correctly ruled that HHS was
not required to create a new document. However, "to the extent that the
plaintiff requests the Medicaid claims compiled in their original form, we remand
for further proceedings.[ . . . ]" In its analysis determining that the
requested information was not a public record, the trial court used cost as
a factor. Under § 91-A:5, cost is not listed as an exemption to disclosure
of otherwise public information. In addition, in.§. 91-A:4, IV, where cost
is addressed directly, it is not contemplated as a factor that could prohibit
disclosure. "[ . . . ] We find that cost is not a factor in determining
whether the information is a public record. We do not reach the question of
who bears the burden of paying for the cost of producing the information requested,
because the issue is not ripe for our review." No. 2000-012 Cassandra
Hawkins v. New Hampshire Department of Health and Human Services, 788 A.2d
255 N.H.,2001 (Dec. 31, 2001)
In DeVere v.
Flynn, No. 99-E-033 (Merrimack Super. Ct. Apr. 5, 2000), the plaintiff sought
information relating to 64 people who were denied the ability to purchase handguns
in New Hampshire in 1998 because they were fugitives from justice. The court
ruled that agency must provide information fashioned from a cross reference
of names of the 64 against the list of licensed drivers and determine whether
they are licensed and if so whether their licenses are suspended. The court
said the public agency was not being asked to compile random information from
numerous documents as in Brent, as such a request was not burdensome
and any administrative burden outweighed by the public interest.
Fees.
The statute allows agencies to collect "the actual cost of providing the
copy," unless other statutes establish specific fees. The statute does
not require an agency to provide copies if it does not have the necessary equipment.
N.H. Rev. Stat. Ann. § 91-A:4, para. IV (1990). Counties may establish
computer-based geographic information systems and charge fees for access to
them. N.H. Rev. Rev. Stat. § 24:13-bb (1997). Towns and cities are afforded
the same powers. The word "fees" is not defined in the statutes. §
47:11-c (1997)(cities) and § 31:95-f (1997) (towns).
Checklists used
by voters in meetings and elections are available for a reasonable fee. Checklists
are also available on computer disk or tape, or in any form other than paper,
and fees may be charged for providing them "based solely on the additional
costs incurred to provide such checklist." N.H. Rev. Stat. Ann. §
654:31 (1997). The New Hampshire statute making voter checklists available for
inspection and copying provides that the fee for providing the checklist on
computer disk or tape shall be based solely on actual costs incurred. §
654:31.
GIS.
Counties, cities and towns may establish computer-based geographic information
systems and control the distribution of that information, subject to the right-to-know
law, R.S.A. 91-A. Counties, cities and towns are empowered to set up these systems
themselves, or to establish nonprofit corporations to handle the systems. The
statutes also provide that fees may be charged for use of the system. §
24:13-b (counties); § 47:11-c (cities); § 31:95-f (towns).
Resources. New England Press Association