Enormous public records requests may come with a $25-an-hour search fee 

Towns, cities, the state, and other public bodies can charge for copies when they provide someone documents in response to a right-to-know request. They’d also be able to charge up to $25 an hour to search for those records if that search took more than 40 hours under legislation expected to go before lawmakers next year.

Similar legislation was nearly introduced last year, but the sponsor, Rep. Michael Cahill, a Newmarket Democrat, withdrew it after several groups, including the ACLU of New Hampshire, the New Hampshire Press Association, and the libertarian conservative group Americans for Prosperity, opposed it. 

Rep. Katelyn Kuttab, a Windham Republican, said she is pursuing search fees for the same reasons Cahill considered it: Public officials are getting an increasing number of expansive requests that seek hundreds of pages of documents and emails and take hours to fill, often at considerable expense. 

Kuttab said she learned of requests from an out-of-state solar panel company seeking decades of town building permits. “They don’t live here,” Kuttab said of the person seeking information. “They want to sell solar panels and our taxpayers are paying.”

She added: “My goal is anyone who needs information should absolutely be able to get the information. However, what I want to try to deter from is the open-ended fishing expeditions.”

Requests for public records began to increase here and nationally during the pandemic as parents sought information about schools’ masking, social distancing, and vaccine policies. More recently, schools began fielding broad requests for emails, curriculum, and policies related to teaching of diversity, race, gender, and sexuality.

The Governor Wentworth School District began receiving so many sweeping records requests during the pandemic, it began publicly tracking them on its website. Of the 28 requests filed between June 2021 and March 2023, 11 came from a single person. 

According to the tracker, the person did not pick up records provided in response to four of those requests. That included a September 2021 right-to-know request seeking the compensation of the district’s fifth-grade teachers and all curriculum or other materials containing “‘justice,’ ‘equity,’ ‘diversity,’ ‘inclusion,’ ‘social justice,’ or ‘social emotional learning.’” He also requested records that used acronyms associated with those topics.

The Washington Post reported earlier this year that a Virginia school district increased its budget by $500,000 to process public records requests. An Arkansas district spent 400 hours and nearly $20,000 responding to 100 requests within a 90-day period, according to a January news account.

“It is still a problem,” said Cahill, who is a cosponsor on Kuttab’s bill, which isn’t yet publicly available. “We certainly don’t want to deny people access to information. But sometimes it is really just harassment.”

Kuttab said her bill would allow a person to avoid a search fee by narrowing requests for information or dividing them up over several weeks. The 40-hour clock would reset every 30 days, meaning someone could file a request for some records one month and the rest the following month.

The New Hampshire Press Association will consider its position on Kuttab’s legislation once it’s available. 

“The NHPA is always on the lookout for, and will oppose, changes that will make it more difficult for members of the New Hampshire press to do their job of keeping the public informed of what their government is doing,” said President Brendan McQuaid in an email.

He said some NHPA members have always had some trouble getting certain public records released due to varying interpretations of the right-to-know law.

The New Hampshire Constitution protects the public’s access to public documents and proceedings as a means to hold government accountable. “To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted,” it reads.

The state’s right-to-know law, RSA 91-A, reinforces that right, as have several rulings from the state’s courts. 

But a recent order from the state Supreme Court illustrates the tension that can arise between the public’s legal right to governmental records and the challenge public officials sometimes face in providing those records. That has become especially true as record requests have expanded in number and scope.

On Friday, the court ordered a Seacoast school district to pay attorney fees to Albert Brandano, who in 2021 sought two years of emails and documents related to the district’s Diversity, Equity, Inclusion, and Justice Committee. 

Brandano’s request included all emails, written communications, and activity between committee members and certain SAU 16 school district employees; the committee’s meeting minutes, work product, and chat logs; and the curriculum and book titles that were assigned, recommended, or suggested by any teachers or students.

It took five district employees 30 hours to provide Brandano those records, according to the court order. The district told Brandano it would provide him the remaining records he requested, which related to contracts and grant applications, within 45 days. 

After the district missed its own deadline and didn’t respond to Brandano’s follow-up emails, he sued in superior court, seeking the records and the attorney fees he’d incurred bringing the lawsuit. Judge David Ruoff denied Brandano attorney fees in a December 2021 order and gave the school district an additional 45 days to produce the documents. 

In doing so, Ruoff noted that the school district was dealing with the pandemic and handling five other right-to-know requests. His order was an attempt to strike a balance.

 “In the interest of compliance with the spirit of the Right-to-Know law … and a mindfulness of the strain that the Covid pandemic restrictions in schools, coupled with the holiday season, can have on the public school system, (the school district has) 45-days to produce the documents, in their possession, responsive to (Brandano’s) request,” Ruoff wrote

The Supreme Court upheld much of Ruoff’s order but disagreed with him on payment of attorney fees, finding that the district did not produce the documents until after Brandano sued.

“We conclude that the lawsuit was necessary to make public information available,” the court said. “We also conclude that the (school district) ‘knew or should have known’ that they were in violation of (the right-to-know law).”

Neither Brandano nor his attorney, James Laboe, could be reached for comment. A message left with SAU 16 was not returned.