Girard at Large Host Rich Girard released his letter to the NH House Judiciary Committee on HB 646, a bill that would allow public bodies to charge labor costs for Right to Know requests in advance of gathering the information based on the public body’s estimate of how much time it will take to gather the information.
——– Original Message ——–
Chairman Rowe and members of the Honorable Committee:
I regret that business commitments prevented my attending yesterday’s continued hearing on HB 646. Given that I was one of the folks who was present and not called during the original hearing, I was particularly pained to miss it. It is my hope that this real life example of what citizens and the media typically have to deal with in asking for public information will inform your vote. Please accept my thanks in advance for taking the time to review and consider this material.
In writing to oppose this legislation, I am forwarding an exchange between myself and Salem Superintendent Michael Delahanty over a Right to Know Request. You may or may not know of the controversy that engulfed the Windham School Board over a no-bid $600,000 +/- multi year contract granted to Cenergistic. In short, the company solicited the school district’s business and provided it with “sole source letter” to help the Business Administrator justify avoiding an RFP process. Three of five members on the Windham School Board voted to approve the contract despite not having seen it in advance of the vote. In fact, it hadn’t even been reviewed by the district’s legal counsel. Because of a change in their public input policy, citizens were not allowed to speak to the item. One citizen, a “green contractor” and member of the district’s facilities committee, objected to their decision to vote on it that night, despite being asked by the dissenting two members for time to obtain and review the contract. The Board’s chairman called the police on the resident for allegedly being disorderly (we’ve posted the video, he wasn’t disruptive and the police didn’t remove him.) Because of our radio show’s coverage and that of Kimberly Morin from The Manchester Political Buzz on Examiner.com, other media sources engaged the story and Cenergistic ultimately withdrew. Right to Know Requests were critical to exposing the abuses.
The reason why I submitted the request below to Salem is that Cenergistic’s pricing for Windham was predicated on Salem’s participation in the contract. It was a combo deal Cenergistic looked to put together between the two towns after Derry withdrew decided not to do a combo contract with Salem. Given the course of events in Windham, we requested information to determine whether or not the process in Salem was any different than the process in Windham.
Please note in the superintendent’s reply, he doesn’t know how long it will take to answer my request. So often it is the case where requests are met with this reply. Whether or not they really don’t know or they’re using it to delay compliance is something that varies from situation to situation. The upshot is, we hear it often enough, we can’t but wonder whether or not HB 646 should require the use of a crystal ball to prevent the inquiring public from being gouged by reticent communities. Perhaps the legislation should also provide the inquirer with a crystal ball, like the one Santa uses in the Christmas specials, so the public can actually verify that the amount of time charged for is the actual amount of time taken to do the work. As President Reagan famously said, “trust, but verify.” Perhaps the sponsors would address how citizens inquiring of their government will be able to do that if this bill becomes law.
The bill’s sponsors and the NHMA complain about “thousands of pages” of un-reviewed requests made by zealots whose goal is to disrupt government. In the superintendent’s response, he acknowledges that everything I’ve requested is already and has always been in electronic format, but he refuses to provide it in that format, choosing instead to have staff take the time and resources to physically have the documents printed and then levy a per page fee he says includes labor costs, though the statute says the actual cost of providing a physical copy is what can be recovered.
Salem isn’t the only district that refuses to provide electronic copies. Timberlane’s policy expressly states no electronic copies of any document will not be provided. Manchester will provide electronic copies on a disk, but only AFTER a member of the city’s staff supervises the petitioner’s review of electronic documents and then charges a $.50 per page fee ($1 for the first page) for each document given electronically PLUS the cost of the disc or thumb drive, which they demand be purchased from them. Manchester routinely responds “we don’t know how long it will take to reply your request,” by the way, and its policy states, as Superintendent Delahanty does below, that it will depend on the availability of staff, which is questionable at best under the statute.
Has anybody considered the imposition on the petitioners to be required to review paper documents at a distant facility based on the schedules of government staff? While I’m sure there are cases of abuse, I myself can think of two or three Right to Know Requests that I didn’t retrieve because the agency in question either took its dear sweet time to produce it, making it stale and no longer useful for news purposes, or they just never seemed to have staff available when I could make the trip.
If cases of abuse were really running rampant, we’d hear more than just the anecdotal evidence of some spectacular infraction. The fact is, nobody has quantified the number, seriousness or “cost” of the infractions. The other fact is, the government entities that have to be asked for public information are the ones who create the information and file it. How else are we to obtain but to ask? Frankly, it’s their job to provide the information and, as a taxpayer, I’ve already paid for that job to be done.
During one of the bills I witnessed before your committee, the sponsor said the number of Right to Know Requests in his town had gone down significantly since the town started putting the information on the its Web site. Perhaps these abuses would be reduced if more communities put technology to use instead of making the process difficult and expensive as the Salem School District, the city of Manchester, the Timberlane Regional School District and many others are doing.
Perhaps, if the abuses are real and isolated to a few bad actors, enabling a community to charge those specific abusers up front after multiple requests have been abandoned by them would be a remedy, though that is a slippery slope. To pre-punish those of us, the vast majority of us, who use the system respectfully and properly, in order to ward off the thankfully few nare-do-wells, is to convict us without a trial and punish us for sins we have not committed.
I hope you find this actual example of how this process typically works instructive and I urge you to kill this bill. In doing so, let me ask that you favorably consider the bills that have come before you that are designed to address the abuses of the public bodies that, in many cases, simply do whatever they can to obstruct the efficient transmission of public documents because they can until that rare person comes along to take them to superior court, which, by the way, is the best reason to support the Right to Know Hearing Board, or whatever it’s called. More communities will comply with the law once citizens have a better mechanism to enforce it and adjustments are made to clarify it, especially with respect to the provision of electronic files.
In thanking you for your kind time and consideration, I remain
Very truly yours,
——– Original Message ——–
Subject: RE: Right to Know Request
From: Mike Delahanty <[email protected]>
Date: Wed, March 04, 2015 7:41 am
To: “[email protected]” <[email protected]>
Cc: Linda Cornwell <[email protected]>
I am writing to acknowledge receipt of your request for information. We will put together the material requested, but it will take some time to assemble the documents. The contract documents, meeting agendas, and minutes are straightforward and easy to provide. The routine correspondence was done electronically, and therefore we need to gather the relevant electronic mail. I’m not certain how much time this process requires. I anticipate having the material for your review by Wednesday, March 11. My secretary or I will notify you prior to that date if we will require more time.
I will not convey information electronically. I will provide you with hard copies of all requested information to be viewed at the Office of the Superintendent, 38 Geremonty Drive, Salem. You may review the information here. If you want copies of any material, we will be happy to provide it for you either that day or soon thereafter depending upon the staff’s work schedules. The copy charge, inclusive of staff time, will be $0.50 per page.
Michael Delahanty, Ed.D.
Sent: Saturday, February 28, 2015 11:41 AM
To: Mike Delahanty
Subject: Right to Know Request
As I have covered the controversy surrounding the proposed Cenergistic contract with Windham, and in doing so, came to learn that their proposal involved your school district, I am writing to request that you provide the following information, under RSA 91-A:
- Any and all correspondence between Cenergistic and both Salem School District elected officials and employees regarding proposed work in the district.
- Any and all correspondence between and amongst Salem School District elected officials regarding Cenergistic.
- Any and all agenda items and or board actions initiating a Request for Proposal process to satisfy the board’s desire to improve energy efficiency since July 1, 2014.
- Any and all agenda items and or board actions requesting and or approving a contract with Cenergistic to provide services since July 1, 2014.
- Any and all proposals, proposed contracts or executed agreements with Cenergistic.
- Minutes of any and all meetings where energy efficiency and or Cenergistic was discussed by the school board Since July 1, 2014.
As it is common practice for these communications to be done via email and for the documents to be created and transmitted electronically, I request, in accordance with RSA 91-A that the relevant communications and documents be forwarded to this email address. Please advise of any documents that are not in electronic form so that arrangements may be made to review and obtain them.
Because I have found it useful in my interactions with other districts, I paste below the relevant sections of RSA 91-A relative to the obligations of the district to respond and it’s ability to assess fees, which as you know may only be assessed for the physical reproduction of paper documents.
- 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 public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied. 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. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of governmental records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.
- 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. Access to work papers, personnel data, and other confidential information under RSA 91-A:5, IV shall not be provided.
Given the course of events in Windham, our goal is to determine the course of events that led to a proposal from Cenergistic being adopted by your board. To that end, if our request for information has “left anything out” that would more accurately inform our understanding of events, by all means, please include it with your response.
Thank you for your attention to and cooperation in this matter. Should you have any questions regarding this request, you may reply to this email or call me at 674-0392.