Bill Text - HB1611 (2016)

Allowing a public body or agency to charge a fee for costs of retrieving public records under the right-to-know law.


Revision: Dec. 18, 2015, midnight

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HB 1611-FN-LOCAL - AS INTRODUCED

 

2016 SESSION

\t16-2496

\t01/09

 

HOUSE BILL\t1611-FN-LOCAL

 

AN ACT\tallowing a public body or agency to charge a fee for costs of retrieving public records under the right-to-know law.

 

SPONSORS:\tRep. P. Long, Hills. 10

 

COMMITTEE:\tJudiciary

 

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ANALYSIS

 

\tThis bill declares that a public body or agency shall not charge a fee for allowing a person to inspect a record that is immediately available.  This bill also allows public bodies or agencies to charge for the costs of retrieval of public records under the right-to-know law under certain circumstances.

 

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Explanation:\tMatter added to current law appears in bold italics.

\t\tMatter removed from current law appears [in brackets and struckthrough.]

\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.

\t16-2496

\t01/09

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Sixteen

 

AN ACT\tallowing a public body or agency to charge a fee for costs of retrieving public records under the right-to-know law.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

\t1  Right-to-Know; Minutes and Records Available for Public Inspection.  Amend RSA 91-A:4, IV to read as follows:

\t\tIV.  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.  No charge shall be imposed for allowing a person to inspect a record that is immediately available.

\t\tIV-a.  A public body may charge a fee to cover the actual labor cost of retrieving and copying the requested records, including reviewing and redacting confidential and other exempt information, subject to the following:

\t\t\t(a)  The amount charged per hour shall not exceed the applicable minimum wage, and no charge shall be made for the first hour.

\t\t\t(b)  The public body or agency shall provide the requester with a reasonable estimate of the time necessary to respond to the request and of the total cost.  If the estimate of the total cost exceeds $50, the requester may be required to pay all or a portion of the cost prior to retrieval of the records.  If the final cost differs from the estimate, the difference shall be refunded or collected, as the case may be, at the time the records are provided.

\t\t\t(c)  No labor costs shall be charged for retrieving, reviewing, redacting, or copying the following records:

\t\t\t\t(1) Minutes of any public body meeting that occurred less than 10 years before the date of the request.

\t\t\t\t(2)  Any currently effective statute, ordinance, regulation, rule, or procedure of the public body or agency.

\t\t\t\t(3)  Any record directly related to an ongoing administrative or quasi-judicial proceeding before any public body or agency, or any such proceeding that was concluded within 3 years before the date of the request.

\t\t\t\t(4)  In records of a public body or agency of a city, town, county, school district, or other political subdivision of the state, if the person making the request is a resident of, or an owner of real property in, the political subdivision, or the legal representative of such a person.

\t\t\t(d)  Upon request, the public body or agency shall provide a detailed itemization of the costs charged.

\t\t\t(e)  A court may reduce or waive the fees charged if it determines that the information requested is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.

\t\t\t(f)  The public body or agency may waive any charges for an individual who demonstrates an inability to pay.

\t2  Effective Date.  This act shall take effect 60 days after passage.

 

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\t\t\t\t\t\t\t\t\t\t\t16-2496

\t\t\t\t\t\t\t\t\t\t\t12/11/15

 

HB 1611-FN-LOCAL- FISCAL NOTE

 

AN ACT\tallowing a public body or agency to charge a fee for costs of retrieving public records under the right-to-know law.

 

 

FISCAL IMPACT:

The Department of Justice, Judicial Branch, Department of Administrative Services, University System of New Hampshire, New Hampshire Association of Counties, New Hampshire Municipal Association, and Legislative Branch state this bill, as introduced, may increase state, county and local revenue by an indeterminable amount in FY 2017 and in each year thereafter.  There will be an indeterminable impact on state, county and local expenditures.

 

METHODOLOGY:

The Department of Justice states this bill would allow public bodies to charge a rate not to exceed the minimum wage for the time in excess of one hour required to retrieve and copy records requested under the Right-to-Know Law including time required to review and redact confidential and other exempt information.  The Department indicates current law allows only for recovery of the actual cost of providing copies.  In FY 2015 the Department spent 1,500 hours reviewing records requested under RSA 91-A.  The Department indicates if that time was charged at a rate of $7.25 per hour, the Department would have collected $10,875.  The Department states it is unknown how many requests for information it may produce a particular year so the fiscal impact cannot be determined, but based on the past, fees of approximately $10,500 to $12,500 could be collected per year.

 

The Judicial Branch states the proposed bill would amend RSA 91-A:4 to provide that a public body or agency subject to the Right-to-Know Law cannot charge a fee for inspecting a record that is immediately available and to allow charging the cost of retrieval of public records in certain circumstances.  The potential cost to the Branch is in RSA 94-A:4, IV-a(e) which allows a court to reduce or waive fees charged if it determines the information requested is in the public interest.  The Branch has no information on how many actions to reduce or waive fees charged may be brought in the superior court.  The Branch indicates such actions would be classified as routine equity cases and the cost of an average routine equity case in the superior court will be $247.11 in FY 2017 and $262.55 in FY 2018.  These amounts do not consider the cost of any appeals that may be taken following trial.  The Branch states these costs are based on studies of judicial and clerical weighted caseload times for processing the average routine equity case and the studies are now ten years old for judicial time and eight year old for clerical time.  In addition, the Branch states there have been changes during this time period with respect to how cases are processed.

 

The Department of Administrative Services states the current and proposed versions of RSA 91-A:4, IV provide that if a fee is established by law for obtaining copies of governmental records, no additional costs or fees shall be charged.  The Department does not know how many agencies may have fees established in law.  The Department states its administrative rules (Adm 103.01) provides for a fees for copies.  The Department is not able to determine the impact on revenue.

 

The University System of New Hampshire (USNH) assumes each institution would decide whether to assess the fees as allowed in the bill.  The USNH does not have information on the annual number of requests that may subject to an assessment and cannot anticipate the nature of such requests or the associated expense that may be recovered by assessing fees.  The USNH assumes, if fees were assessed, there would be some administrative costs associated with fee processing and compliance monitoring, and additional fee revenue.  Regarding inspection of readily available records, the USNH indicates there would be no fiscal impact as the institutions do not currently charge for inspection of readily available information.

 

The New Hampshire Association of Counties states this bill will have an indeterminable impact on county revenues and expenditures.  The Association states costs and fees would vary by county and based on the specific request.

 

The New Hampshire Municipal Association states municipal officers frequently spend many hours responding to Right-to-Know Law requests and being able to recover a portion of the cost will increase municipal revenue.  The Association does not have information on time spent responding to such requests and has no basis for projecting the time required in the future.   The Association assumes allowing municipalities to require payment before retrieving records may deter some requests and reduce municipal expenditures since it is not unusual for individuals to request information and then fail to pick it up.

 

The Legislative Branch indicates it does not charge a fee for inspection of readily available information and that provision of the bill will have no fiscal impact.  The Branch assumes any additional revenue related to the retrieval of other information will depend on the number and complexity of complaints which is not known.

 

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