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State records law's deadlines are 'absolute'

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NEWS MEDIA UPDATE   ·   NEW HAMPSHIRE   ·   Freedom of Information   ·   May 15, 2007

NEWS MEDIA UPDATE   ·   NEW HAMPSHIRE   ·   Freedom of Information   ·   May 15, 2007

State records law’s deadlines are ‘absolute’

  • The state high court found that there is no sufficient reason to extend the five-day response time in which agencies must acknowledge public records requests.

May 15, 2007  ·   The New Hampshire Supreme Court upheld last week the firm timeline for government agencies to respond to public records requests under the state’s Right-to-Know laws.

The unanimous high court ruling said state law provides government agencies only five business days to acknowledge Right-to-Know requests by either releasing public records, explaining why certain records are exempt from being disclosed, or providing an estimate in writing of how long it will take to decide whether they are exempt.

“The time period for responding to a Right-to-Know request is absolute,” Chief Justice John Broderick wrote for the court, which overturned the trial judge’s determination that the agency being sued had a good excuse for its delay.

Last week’s ruling was the first time the state high court ruled on a lawsuit relating to timelines on Right-to-Know requests, according to Joshua L. Gordon, attorney for ATV Watch, a nonprofit group that monitors all-terrain vehicle trails in New Hampshire.

“What this means is that whatever excuses, valid or otherwise, the government comes up with, they must adhere to the timeline for requests,” Gordon said. “The documents make something newsworthy. Timing is everything.”

ATV Watch requested records in November 2004 from the state Department of Resources and Economic Development about the proposed purchase of land and planning for an all-terrain vehicle park.

One month later, the government agency said it planned to comply with the request but had to consult with the state attorney general’s office about whether some of the documents – specifically those relating to the land purchase – were confidential. In January 2005, the agency released some of the documents but declined to release others.

ATV Watch Director Andrew Walters, who is not a lawyer, filed suit in a lower court in February 2005 saying the government agency violated the Right-to-Know law by delaying disclosure of those documents it did release and by continuing to withhold the others.

As the lawsuit made its way through the trial court, the agency released more documents. By November, the trial judge dismissed the case and said that ATV Watch had been provided everything it wanted within in a reasonable time and that the delays had not harmed the group.

The nonprofit then hired Gordon and appealed the ruling to the high court. ATV Watch said the Right-to-Know law did not allow for such delays and that the group was entitled to attorney fees and court costs.

The Supreme Court agreed that even though ATV Watch already had all of the records it initially requested, the court still had the power to hear the case to determine if the nonprofit group was entitled to any remedies because of the agency’s delay.

The court ruled that while the group could not recoup its attorney fees because it hired a lawyer only after it had received all of the records, the Right-to-Know law may still allow recovery of court costs. The Supreme Court sent the case back to the trial judge, who will determine whether ATV Watch is eligible to recover those costs.

“The court is saying here that just because you got the documents, your case doesn’t become moot,” Gordon said. “You can’t deflect violations of the Right-to-Know law.”

(ATV Watch v. NH Department of Resources and Economic Development, Counsel: Joshua L. Gordon, Law Office of Joshua L. Gordon, Concord, N.H.)NC

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