Well, Monday the “RTK Dude” from the State of NH Department of Environmental Services (“DES”) gave me a call to let me know that we had “incoming” from to our Right To Know Request concerning Mr. Richard de Seve (apparently, we have helped his Google ranking – or our’s concerning him) activities and the State’s data concerning this. To be sure, it is an interim response – we asked for a lot and some of it still has to be researched and provided.
That said, this interim release has some very important news from our view point, and confirmed that there is trouble. To be sure, Mr. de Seve has already acknowledged his guilt for inappropriate use of State computer resources over a long amount of time to push his political agenda on sites outside of the State’s network. However, as we started to look into his activities, we quickly thought of more questions. Specifically, the State has written its Rule book – is the State actually living up to it in all aspects in regards to both the Letter of “the Law” as well as the Spirit of “the Law”? And are they doing the right things in the right areas to even have a shot of doing this?
Let’s find out. The response was in a six page PDF; thus, we’ll deal with this a little bit at a time. This post is going to review the “prelim” part of the First Response – consider it the wind up before the pitch is hurled:
March 27,2012
David “Skip” Murphy
9 Gilford Glen Road
Gilford, NH 03249
Re: Request for Records Pursuant to RSA 91-A – Preliminary Response/Status Report
Dear Mr. Murphy,
Thank your for your request for records dated March 11,2012, relative to use of DES’s computer systems by a DES employee. In addition to the Right to Know issues, which are discussed in detail herein, you have also raised personnel-related issues and questions regarding the implementation and enforcement of DES’ information technology policies.
So far, so good. I have to be honest, the RTK Dude made it clear that he has no dog in this fight – he is a neutral broker in this process. He has no investiture in the outcome. Thus far, he has been willing to answer calls and emails (even as I can get rather nitpicky about terminologies and definitions, for the one thing I have learned being a political blogger when talking to politicians or those “on the other side of the aisle” is to nail down what words mean). We know that there are personnel data issues that are beyond RSA 91-A; we can ask for them but we will not get them. For instance, we could ask for Mr. de Seve’s performance reviews and would get properly slapped down – and we’re OK with that.
DES would like you to know that it takes your concerns and allegations very seriously and, based on what is revealed through the process of gathering the requested records, will take action as warranted. Please note, however that any such measures, including any potential future policy implementation changes, are beyond the scope of DES’s response to your request for records under RSA 91-4.
Let me translate: some internal personnel action may be taken, based on the information we have requested (or blogged) – but we won’t be told. And I would say “and we shouldn’t”. They may also redo their internal policies after this whole thing is done – that too is beyond our RTK – and we are OK with that (for now).
This response is provided in furtherance of DES’s obligation to provide you with records that are responsive to your request, and is intended as an interim response and status update. DES is in the process of gathering and reviewing records that may be responsive. DES has consulted with the Department of Information Technology (“DOIT”) and, in accordance with your request, DES will be the primary point of contact for producing responsive records.
And the RKT Dude and I talked about this at length. Frankly, I am from the software field – and iterative enhancement (e.g., RAD) has always been part and parcel of my development of software: figure out some base functionality, write to that. Then, figure out the next “circle” of functionality that the core enables, write some of that. Test again. Then deliver. Wash, rinse, repeat…in an endless loop (or until the suits say “Basta!”). So, we agreed to several “dumps” of information – he can check off “done” and I get to “blog it”. And we keep going until nothing is left from the original RTK that can be delivered (that last part is important).
Responsive – a very responsive word and one over which he and I traded a number of emails (more later).
As per the terms of your request, this response and any documents provided herewith relate to the time period beginning on January l, 2005 and ending on March 12,2012.
Time duration – CHECK! First item done
Please note that some of the electronic information you have requested is not captured or stored by either DES or DOIT. This will be explained in more detail below.
I was afeared of this – but this also played into something that we wanted to find out / prove (i.e., the Rule Book).
Also, given the broad time frame of your request, some older records, whether electronic or paper, may no longer be available.
Heh! Ask yourself – how long much a corporation keep such records available for Discovery?
RSA 91-A:4, VII provides that an agency is not required to “to compile, cross-reference, or assemble information into a form in which it is not already kept or reported…”.
Full Stop. The RTK Dude and I have talked about the 1999 Hawkins case in which a request was made that concerned NH Medicaid data that was stored electronically. The State refused to ante up the data saying that it was too costly to write programs to yank the data off tapes (yes, old fashioned big reel to reel magnetic tape that had to be used with very expensive vacuum cabinets to manage the tape media without breaking the tape itself). The State lost; the judge said: cost doesn’t matter – you got data, you have a request for it, you have to peel it off and serve it up.
This was deemed to be an “interesting” request in that we have asked for little in the way of paper records but LOTS of electronically based ones (emails, network traffic, Internet site visits, landing site times, and the like); they’ve never been asked for stuff other then emails like we have.
Therefore, DES and DOIT will provide responsive records in their possession at the time of the request, but cannot create or recreate records that do not otherwise exist.
There’s that word again: responsive. I’ll deal with it later because it IS one of those terms that HAS to be understood by all parties or bad things can start cropping up.
Your request describes several categories of government records, some of which can be provided and some of which are exempt from disclosure pursuant to RSA 91-A:5. Each of your requests will be addressed individually. However, in order to assure you that you will receive all of the responsive records to which you are entitled and that nothing will be withheld without a statutory basis, a brief examination of the requirements of RSA 9l-A is appropriate.
DES’s response to your request is governed by RSA 91-A:4,IV, which provides:
IV. 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.
“Within 5 business days of request” – indeed, it has taken more than 5 days to start to receive our data but that is OK with us. Again, different kind of data to be delivered in formats they’ve never done before. Let’s be truthful here – we weren’t sure that all the data was going to be around. In fact, we were betting that we were going to find a big, large hole (or a couple of them). Thus, we were willing, as long as the comm line with the RTK Dude was up and running, to wait. I have to admit though, I started to chide him a bit about not having seen anything.
There are, however, specific statutory exemptions to disclosure, as you acknowledge in your request. These exemptions are set forth in RSA 91-A:5 and include an exemption for personnel related records:
IV. Records pertaining to internal personnel practices; confidential, commercial, or financial information; test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or ‘ academic examinations, and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would onstitute invasion of privacy.
Several of your specific requests relate to such internal personnel practices and, therefore, are exempt from disclosure.
The Department of Administrative Services, Division of Personnel (“DOP”) has adopted rules to implement the provisions of RSA 91-A:5. NH Code Admin. Rules, Per 1500. (http://www,gencourt.state.nh.us/rules/state-agencies/per100-1500.html). Per 1501.01 lists employee information which is non-confidential and must be disclosed to any member of the public upon request. Such information includes position information, employee personal information (limited to name, date of hire, dates of leaves of absence, and date of separation from service), pay information, and funding information. Any other personnel related information is exempt from disclosure.
The document then starts to go into the actual deliverables requested – but that will have to wait until tomorrow.
