Revision: May 2, 2024, 4:14 p.m.
HB 1002 - VERSION ADOPTED BY BOTH BODIES
1Feb2024... 0197h
21Mar2024... 1173h
2024 SESSION
24-2001
05/08
HOUSE BILL 1002
AN ACT relative to fees for records under the right-to-know law.
SPONSORS: Rep. Kuttab, Rock. 17; Rep. M. Cahill, Rock. 10; Rep. Ball, Rock. 25; Rep. Maggiore, Rock. 23; Rep. Ankarberg, Straf. 7; Rep. DeSimone, Rock. 18; Rep. Dunn, Rock. 16; Rep. J. Nelson, Rock. 13; Rep. B. Boyd, Hills. 12; Rep. Edwards, Rock. 31; Rep. Grassie, Straf. 8; Sen. Carson, Dist 14; Sen. Gannon, Dist 23; Sen. Watters, Dist 4; Sen. Lang, Dist 2; Sen. Avard, Dist 12
COMMITTEE: Judiciary
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ANALYSIS
This bill establishes parameters for when a public body may charge a fee for records provided under RSA 91-A.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
1Feb2024... 0197h
21Mar2024... 1173h 24-2001
05/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to fees for records under the right-to-know law.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Right-to-Know; Fees for Records. Amend RSA 91-A:4, IV to read as follows:
IV.(a) 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.
(b) If a public body or agency is unable to make a governmental record available for immediate inspection and copying the public body or agency shall, within 5 business days of a request:
(1) Make such record available;
(2) Deny the request; or
(3) Provide a written statement of the time reasonably necessary to determine whether the request shall be granted or denied and the reason for the delay, and an itemized estimate of the cost of making the record available if a charge would be incurred under paragraph VIII.
(c) A public body or agency denying the request in whole or in part shall provide a written statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld.
(d) 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. No cost or fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form, except as provided in paragraph VIII. 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.
(e) A public body or agency may suggest to the requestor a reasonable modification of the scope of the request, if doing so would enable the body or agency to produce records sought more efficiently and affordably.
(f) A public body or agency responsible for responding to a records request shall not be liable for damages in a civil action caused by its fault or by fault attributable to it, arising out of disclosure of information exempt from disclosure pursuant to this chapter, provided that the public body or agency acted in good faith to redact any information that may be exempt from disclosure, unless the public body or agency can be shown to have acted in a wanton or reckless manner. The use of automated software to produce redactions or other automated processes to speed production in concert with spot checks shall qualify as good faith.
2 New Paragraphs; Fees for Records. Amend RSA 91-A:4 by inserting after paragraph VII the following new paragraphs:
VIII. A reasonable per electronic communication charge in addition to the actual cost of providing the copy under paragraph IV(d) may be made for requests for electronic communications in excess of 250 communications. Per electronic communication charges may not exceed $1.00 per communication and may be charged whether the records are delivered in hard copy or electronically. No charge may be incurred for the first 250 electronic communications. For the purposes of this paragraph, attachments to electronic communications shall be considered part of a single communication, and e-mails and responses under a single subject line shall be considered a single communication. Text or chat message threads regarding the same topic shall be considered a single communication unless exceeding 50 individual messages at which point each additional group of 50 messages shall be considered another single message. The public body or agency shall create a policy so that practices are transparent, uniform, and consistent, including a provision consistent with paragraph IX for the waiver of such fees for requestors who are deemed indigent, or who can demonstrate that such fees would present a financial hardship. Multiple requests from any person or entity to the same public body within a 30 day time period shall be considered one request. If a party believes that the estimated cost to make the records available is unreasonable or that a waiver under paragraph IX was improperly denied by the public body or agency, the party may seek relief according to RSA 91-A:7-b for a determination of whether the cost is reasonable or whether any waiver under paragraph IX applies. The burden shall be on the public body in establishing that the cost to make the records available is reasonable. A determination shall be made within 10 business days.
IX. The public body or agency shall waive any per electronic communication charge provided for in paragraph VIII for search or retrieval when the person requesting the records is an indigent individual as established by the federal poverty line or if the disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, except media requestors. Media requestors are organizations or individuals who publish information in accepted digital, print, or broadcast formats and to standards generally recognized by professional news organizations that do not serve primarily as a platform to promote the interest and/or opinions of a special interest group, government, individual or cause.
3 Effective Date. This act shall take effect 60 days after its passage.
24-2001
Amended 3/5/24
HB 1002- FISCAL NOTE
AS AMENDED BY THE HOUSE (AMENDMENT #2024-0197h)
AN ACT relative to fees for records under the right-to-know law.
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | ||
Revenue Fund(s) | General Fund Right to Know Ombudsman filing fees ($25) | |||||
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Funding Source(s) | General Fund
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Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None
| |||||
• Does this bill provide sufficient funding to cover estimated expenditures? [X] N/A • Does this bill authorize new positions to implement this bill? [X] No | ||||||
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Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
County Revenue | $0 | Indeterminable | Indeterminable | Indeterminable | ||
County Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Local Revenue | $0 | $0 | $0 | $0 | ||
Local Expenditures | $0 | $0 | $0 | $0 | ||
The Office of Legislative Budget Assistant is awaiting information from the Department of Justice. The Department of Justice was originally contacted on 2/1/24 for a fiscal note worksheet. If information is received, a revised fiscal note will be forward to the House Clerk’s Office.
METHODOLOGY:
This bill establishes parameters for when a public body may charge a fee for records provided under RSA 91-A. The Office of the Right to Know Ombudsman indicates the bill impacts RSA 91-A:4 by adding a new paragraph VIII to provide that a reasonable charge of $25 per hour or less may be made for time in excess of 10 hours spent by the personnel of a public entity for providing copies of documents available to requestors under the Right to Know law. It also provides that if a person believes that an estimated charge imposed by a public entity is unreasonable, the person may file a complaint with the Right to Know Ombudsman (RKO) for a determination of the reasonableness. Complaints filed with the RKO must generally be accompanied by a $25 filing fee which is deposited in the general fund. The Office assumes this bill could increase the workload of the RKO (a single-person agency) by an unknown amount which would depend entirely upon the unknowable number of additional complaints. The Office states the bill would also impact other state agencies and governmental units at the county and local level, as well as other public bodies or agencies as defined in RSA 91-A: 1-a, V and VI. The Office notes the bill appears to suggest that a complaint regarding the reasonableness of any fee must be filed with the RKO, eliminating the option of pursuing such matters in superior court. The bill is therefore likely to increase the workload of the RKO to an indeterminable degree, resulting in a greater expenditure of RKO time. However, because the RKO is a salaried position, the expenditure of additional time would not necessarily lead to an additional expenditure of state funds. The Office states it cannot be known at this time whether the increased workload would require hiring of an additional person or persons to work in the Office, a matter which might be necessary even absent the bill. The Office indicates the ultimate fiscal impact of the bill is necessarily indeterminable.
The New Hampshire Municipal Association does not anticipate a direct impact on local revenue or expenditures as this bill provides for a local option.
The New Hampshire Association of Counties state, while requests of this size are rare, the Association is not able to predict what members of the public will request under the right to know law. The Association assumes the fee would not cover the cost of responding to a request.
It is assumed that any fiscal impact would occur after fiscal year 2024.
AGENCIES CONTACTED:
Department of Justice, Office of the Right to Know Ombudsman, New Hampshire Municipal Association and New Hampshire Association of Counties