Breaking News: Donna Green Wins Right to Know Appeal in State Supreme Court

The Earl of MetzlerThe New Hampshire State Supreme Court has overturned a lower court ruling and ruled in favor of Donna Green in her Right to Know suit against The Earl of Metzler and Timberlane Regional Polizeistaat. You can read the entire decision here. H/T Jorge!

Here’s a snippet.

Accordingly, we conclude that the plaintiff was entitled to the requested documents in electronic format. The trial court’s decision to the contrary was, therefore, in error.

We observe that requiring the defendants to produce the requested documents in electronic format advances the purpose of the Right-to-Know Law, which is to improve public access to governmental records and “provide the utmost information to the public about what [the] government is up to.” Prof’l Firefighters of N.H., 159 N.H. at 705 (quotation omitted). Given that the “overwhelming majority of information” today “is created and stored electronically,” U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 237 n.23 (S.D. Cal. 2015) (quotation omitted), we agree with the plaintiff that the “[d]issemination of public, non-confidential information in commonly used [electronic] formats ensures the greatest degree of openness and the greatest amount of public access to the decisions made by the public officials.” See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003) (explaining that, unlike paper evidence, electronic evidence “can be searched automatically, key words can be run . . . , and the production can be made in electronic form obviating the need for mass photocopying”).

This decision has a broad impact on Right to Know in New Hampshire and the ability to access public records in electronic format, when most of them will already be in that format already.

In the intervening … years, advances in storing, copying, transferring, and analyzing computerized data have facilitated the public’s access to “the utmost information . . . about what its government is up to,” Prof’l Firefighters of N.H., 159 N.H. at 705 (quotation omitted). See John B. v. Goetz, 879 F. Supp. 2d 787, 877 (M.D. Tenn. 2010) (“Electronically stored information, if kept in electronic form . . . can be very inexpensive to search through and sort using simple, readily available technologies . . . . The cost of copying and transporting electronically stored information is virtually nil.” (quotation and emphasis omitted)).

Thanks so much to Donna and everyone who stood up and fought for transparency, and 91a, particularly in the case of Metzler/Timberlane, where the obstruction was deliberate. Metzler’s opinion about what public records Donna Green was entitled to and in what format was based on his own personal dislike and a desire to hamper a School Board members pursuit of honest accounting for the sake of her constituents. While it had to go all the way to the State Supreme court, the people have earned a huge victory today.

Whether the Earl Metler’s in our bureaucratic firmament will honor the decision moving forward is another matter altogether. Towns and school districts still hide things and feel confident in their ability to use the courts to scare people off even when the law is not on their side.