New Hampshire

New Hampshire updated its records law in 2008 to include as “governmental records” any written communication or other information, “whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body.” RSA 91-A:1-a, III.

Litigation prompted the legislative update. In Hawkins v. New Hampshire Department of Health and Human Services, 147 N.H. 376 (2001), a party requested information contained in databases of a state agency. Because the requested information did not take the form of an existing record, the court ruled it was not a public record and denied the plaintiff’s request.

However, the court concluded its decision by stating: “The issues in this case foreshadow the serious problems that requests for public records will engender in the future as a result of computer technology. Unless the legislature addresses the nature of computerized information and the extent to which the public will be provided access to stored data, we will be called upon to establish accessibility on a case-by-case basis. It is our hope that the legislature will promptly examine the Right to Know Law in the context of advancing computer technology.”

In a case that arose since the new law took effect, a court held e-mail messages of “individual legislators” were not subject to release and that the law only applied to public bodies and agencies. v. Martha McLeod, et al., No. 08-E-192.

Retention was also addressed in the update to the law. It states: “Governmental records created or maintained in electronic form shall remain accessible for the same retention or archival periods as their paper counterparts.” RSA 91-A:4,III-a.