Green v. Sch. Admin. Unit #55

• Decision Date: 19 April 2016
• Docket Number: No. 2015–0274,2015–0274
• Citation: 168 N.H. 796,138 A.3d 1278
• Parties: Donna M. GREEN v. SCHOOL ADMINISTRATIVE UNIT #55 & a.
• Court: New Hampshire Supreme Court

168 N.H. 796

138 A.3d 1278

Donna M. GREEN

v.SCHOOL ADMINISTRATIVE UNIT #55 & a.

No. 2015–0274

Supreme Court of New Hampshire.

Argued: January 7, 2016

Opinion Issued: April 19, 2016

Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on the brief and orally), for the plaintiff.

Drummond Woodsum & MacMahon, of Manchester (Matthew R. Serge and Anna B. Cole on the brief, and Mr. Serge orally), for the defendants.

BASSETT, J.

The plaintiff, Donna M. Green, appeals a decision of the Superior Court (Anderson, J.) entering judgment in favor of the defendants—School Administrative Unit # 55 (SAU), Timberlane Regional School District, Nancy Steenson, and Earl F. Metzler, II—and concluding that the plaintiff was not entitled to receive electronic copies of documents that she had requested from the defendants. We reverse.

The following facts are undisputed or are otherwise supported by the record. The plaintiff is a member of the Timberlane Regional School Board. On January 21, 2015, she requested budget-related documents from the SAU for herself and the school board. In response, Steenson, the chair of the school board, requested that the plaintiff make a motion for the documents on behalf of the school board.

On January 23, the plaintiff informed the SAU that her document request was made pursuant to the Right–to–Know Law. See generally RSA ch. 91–A (2013 & Supp. 2015). On January 26, the SAU responded that the plaintiff could make an appointment to "see the documents" that she had requested. The plaintiff replied, "in that case, give me the file electronically and we will all save money and time"; in response to this communication, the SAU stated that it had already responded to the plaintiff's request. The plaintiff then noted that her "request is for an electronic file ... or a paper report, whichever suits the district," and she declined to make an appointment to view the documents. The plaintiff explained that "[a]ll of the documents requested could have been emailed or copied in the time it has taken to answer these excuses for not providing [them].... This isn't that difficult." In response, the SAU stated that the documents that she requested were immediately "available for public inspection."

On January 27 and January 29, the plaintiff again requested the documents in electronic format. The SAU refused to provide the documents in electronic format, again noting that the paper documents were available for inspection. This response by the SAU was consistent with its written policy governing Right–to–Know requests, which states, in pertinent part, that "[m]aterials and/[or] documentation produced to fulfill a Right to Know request shall be subject to a charge [of] $.50 per page" and that "only hardcopies will be produced; no electronic copies will be provided."

On February 3, the plaintiff filed a complaint in superior court alleging that the defendants violated RSA 91–A:4 (2013) by not producing the requested documents in electronic format. The plaintiff requested that the trial court order the SAU to "immediately provide an electronic file [of the requested documents] in a mutually agreeable format." In response, the defendants filed a motion to dismiss in which they argued that they were not obligated to provide the requested documents in electronic format and that they complied with the Right–to–Know Law by making the paper documents available for inspection.

Following a hearing, the trial court concluded that the plaintiff was not entitled to electronic copies of the requested documents. Although the trial court noted that there "may be a strong policy argument to be made" for requiring public entities to produce documents in electronic format, the trial court explained that RSA 91–A:4, V states "in fairly plain language" that "it is the choice of the public entity whether to produce documents in electronic or conventional format." Because the trial court found that the statute provided the SAU with discretion as to whether to provide the documents in electronic format, it entered judgment in favor of the defendants. The plaintiff filed a motion for reconsideration, which was denied. This appeal followed.

On appeal, the plaintiff argues that, under RSA 91–A:4, V, she was entitled to receive the requested documents in electronic format, and, therefore, the trial court's decision to the contrary was error. Although the defendants do not dispute that the requested documents are governmental records that are maintained in electronic format, they argue that the trial court correctly determined that, under RSA 91–A:4, V, they are not required to provide the records to the plaintiff in electronic format.

Resolving this issue requires us to interpret the Right–to–Know Law; therefore, our review is de novo. See Prof'l Firefighters of N.H. v. Local Gov't Ctr., 159 N.H. 699, 703, 992 A.2d 582 (2010). "The ordinary rules of statutory construction apply to our review of the Right–to–Know Law." CaremarkPCS Health v. N.H. Dep't of Admin. Servs., 167 N.H. 583, 587, 116 A.3d 1054 (2015) (quotation omitted). "Thus, we are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole." Id. (quotation omitted). "When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used." Id. (quotation omitted). "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. (quotation omitted). "We also interpret a statute in the context of the overall statutory scheme and not in isolation." Id. (quotation omitted).

Because 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," 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." Id. (quotations omitted); see Prof'l Firefighters of N.H., 159 N.H. at 705, 992 A.2d 582 ; see also N.H. CONST. pt. I, art. 8. "As a result, we broadly construe provisions favoring disclosure and interpret the exemptions restrictively." CaremarkPCS Health, 167 N.H. at 587, 116 A.3d 1054 (quotation omitted).

RSA 91–A:4, V provides, in pertinent part, that:

In the same manner as set forth in RSA 91–A:4, IV, any public body or agency which maintains governmental records in electronic format may, in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91–A:1.

(Emphases added.) RSA 91–A:4, IV, in turn, provides, in relevant part, that:

Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release.... If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency.

The plaintiff argues that, although RSA 91–A:4, V uses the word "may," the statute "clearly indicates that the governmental unit is not given unfettered discretion to produce information in any way it chooses." Cf. City of Rochester v. Corpening, 153 N.H. 571, 574, 907 A.2d 383 (2006) ("The general rule of statutory construction is that the word ‘may’ makes enforcement of a statute permissive and that the word ‘shall’ requires mandatory enforcement." (quotation omitted)). According to the plaintiff, the first sentence of RSA 91–A:4, V provides the defendants not with the option of producing "a paper printout of electronic records," but rather with a choice of whether to provide either the "original records," or to, instead, "copy governmental records requested to electronic media using standard or common file formats." (Quotations omitted.) The plaintiff contends that the "original records" in this case reside on a computer in the SAU, and, therefore, the defendants were required to produce the documents in electronic form—either by providing the original documents or by copying them to electronic media using standard or common file formats.

The plaintiff further argues that the second sentence of RSA 91–A:4, V "makes it clear that the authority to produce a hard-copy form of an electronically stored document arises only ... if copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method." (Quotation omitted.) According to her, neither precondition is met because the trial court did not determine whether copying to electronic media is not reasonably practicable, and she eventually sought the records only in electronic format.

In response, the defendants argue that the plaintiff misreads RSA 91–A:4, V. The defendants contend that, because RSA 91–A:4, V uses the word "may" as opposed to "shall," the statute simply gives public bodies the option of producing governmental records in electronic format. See City of Rochester, 153 N.H. at 574, 907 A.2d 383 (explaining the difference between the words "may" and "shall"). For support, the defendants contrast this...