Covering costs

Portsmouth’s council considers right-to-know request charges

Earlier this year, attorney Jerry Zelin, a Portsmouth resident and critic of the HarborCorp development project, filed a right-to-know request with the city and asked for copies of all communications between the city and the project’s representatives, as well as all communications between city officials about the project, from Jan. 1, 2013, through June of this year.

To Zelin’s surprise, the city told him that his request turned up some 8,000 documents. He’s been receiving the documents, most of the emails, on thumb drives, and it hasn’t cost him any money. That’s because state law only allows communities to charge for the cost of making physical copies of the documents (Portsmouth currently charges 50 cents a page for copies).

But, earlier this year, legislators in Concord considered a bill that would allow cities and towns to charge fees for right-to-know requests to recoup labor costs for staff who fulfill the requests. Under the proposal, municipalities would be able to charge based on the number of hours it takes to process the request, using minimum wage as the standard. The bill was laid on the table, meaning it was neither approved nor rejected, but similar legislation is on tap for 2016.

“I never imagined my request for information on HarborCorp would lead to 8,000 records,” Zelin said. “I think (charging for labor costs) would undoubtedly stifle people’s ability to get records … by making it more expensive.”

Outgoing city councilor Zelita Morgan wants Portsmouth to get in front of any potential changes to the right-to-know law. At the council’s Dec. 7 meeting, Morgan introduced a proposal to amend city policy so that it would never charge for labor costs for record requests. The proposal also calls for the council to declare it does not support any changes to RSA 91-A, the state’s right-to-know law, that would allow municipalities to charge for labor related to requests.

Morgan’s proposal failed, but it stirred up debate among councilors and the issue may reappear next year.

During the meeting, city manager John Bohenko said the proposal was vague and didn’t take into account situations in which a person might request thousands of pages of documents that need to be printed out, or a request for a hard copy of information that’s available electronically.

Assistant mayor Jim Splaine said he “very strongly” supported the motion. “I see nothing in the motion that requires an item would be printed, as long as it is retrieved for members of the public. Perhaps this would encourage more availability by disc,” he said. “Transparency is not something we just say we’re for, transparency is something we do. I think this would be an important statement … in that regard.”

Councilor Brad Lown, who voted against Morgan’s proposal, said the council should wait until state legislators pass a law before adopting an official policy.

“If they ever do, then we can decide whether we want to implement it here,” he said.

Councilors Esther Kennedy, Morgan, Splaine, and Jack Thorsen voted in favor of the proposal; councilors Chris Dwyer, Lown, Stefany Shaheen, Eric Spear, and mayor Robert Lister, voted against it.

Following the discussion, Dwyer said a similar proposal “could pass” when the next city council convenes in January, but the current proposal needs to be reworded.

Zelin, who submitted a letter to the council in support of Morgan’s proposal, is an attorney and often represents school districts in court. He can see both sides of the issue, he said — most requests are for legitimate information, but some “seem as if they’re primarily done to harass” a government agency and tie up staff. But a one-size-fits-all charge for requests doesn’t work, he said, and doesn’t distinguish between requests made by the press, members of the public, and, for example, commercial interests.

“You’re really creating a division of who can exercise what is a constitutional right and who cannot.”
— Portsmouth city councilor Zelita Morgan

In an interview with The Sound on Dec. 8, Morgan said she’s been following the issue closely since earlier this year. According to Morgan, city staff testified in support of HB 646 at a legislative hearing, even though the council didn’t officially support the bill. She’s introduced other proposals before the council addressing right-to-know issues; this last proposal was an effort to “make sure we’re (being) crystal clear that, regardless of what Concord does,” the city does not charge for labor costs.

Though some councilors said the proposal could work if re-worded, Morgan said that it was “very precise.”

“It was principled. You either think … charging for labor to recoup costs (is OK) or you don’t, and I’m not on that page. That’s the cost of being in a democracy,” she said.

Morgan did not run for re-election in November and won’t be returning to the council in 2016. But she hopes HB 646, and future attempts to pass similar bills, “will be a wakeup call.” Rep. Pat Long (D-Manchester), who sponsored HB 646, has already filed a legislative service request for a similar bill in 2016.

“Who will be able to pay for labor costs on right-to-know requests? You’re really creating a division of who can exercise what is a constitutional right and who cannot,” she said.