On February 7, 2022, the Court decided in favor of requiring the City of Nashua to provide me with emails, sent to an assessing supervisor, by way of backup tape restoration.
The City has an antiquated 45-day email storage and retention policy whereby if emails are not moved into a personal folder, they are purged from the system and moved to a backup tape storage system. Nashua is one of the only municipalities that use this antiquated method.
The retention records law, RSA 33-a requires emails to be saved for one year. This creates a conflict with Nashua’s policy.
One of my first requests for emails occurred in June 2019 when I requested the former Assessing chiefs’ emails from September and October 2018. It turns out the City complied and retrieved those records off of tape backup without any problem, well past the 45-day retention period.
The next request filed in June 2020 was for July/August 2019 emails of the Administrative Service Director as she had taken over serving as the Chief of assessing. For months, the City promised to deliver the emails but never complied. The Court ruled that the emails must be provided. After nearly 10 months, many legal filings, and a court hearing, the City disclosed that they discovered “early on” that the backup tape was corrupted and the emails were lost. This resulted in sanctions for bad faith against the City and almost $8,000 of attorney’s fees paid out.
When I made the June 2021 request for the assessing supervisors’ emails for November and December 2020 (she left the city on Christmas 2020), I believed the City would have no problem providing those records. After all, the Chief’s records were provided and the City agreed to provide Ms. Kleiner’s emails. But this time, the City claimed the records no longer existed, they had been initially and legally deleted. The City offered no explanation as to what that meant and did not cite RSA 91-A as a reason for failing to provide the emails. Instead, they were evasive.
In Court, the Nashua legal team stated that “initially and legally deleted” meant the emails had been put on the backup tape and they should not be required to obtain those records. The practice for searches had been changed without disclosure to the public.
RSA 91-A requires that a request be reasonably described such that a person of reasonable knowledge has the ability to search for the record. In Court, the IT Director acknowledged he knew where to find the records and the search would not be time-intensive. The Mayor overstepped his authority and violated the law for reasonable search by denying these records without speaking with the people with reasonable knowledge to search and obtain these records. He had no expertise to make a blanket decision to shut down access to all emails on tape backup.
On February 7, 2022, the Court ruled against the City.
The City’s IT Director testified in Court that it would only take him a couple of hours to retrieve the records. The City filed a motion for reconsideration. On March 25, 2022, the Court ruled that the order to retrieve the emails would stand and ordered training for the city. The Court was allowing me to make recommendations for the training to improve searches for records.
Now, no training will occur any time soon and records will remain closed.
The Mayor is appealing the lower court decision to the Supreme Court. This City should focus on the optics of closing records in an assessing office and the complete lack of transparency this City has demonstrated regarding the quality of work performed by the office as well as access to those public records.
The emails I have received have proven to tell quite a story and no doubt the City would like these records from 2019 and 2020 to remain hidden. So, the chess game continues and we will wait and see what prevails at the NH Supreme Court. In the next couple of months, new assessments will be delivered to every property owner in Nashua. You can be sure that transparency and credibility in this data do not exist as leadership continues to fight to hide information, retaliate against those who request information, and promote incompetence.
The Court orders and filing to the Supreme Court are attached.
Notice of Appeal:
20220427 – Notice of AppealOrder:
20220207 – OrderNOD City’ Motion to Reconsider – Denied:
20220427 – Notice of Appeal