New Hampshire Freedom of Information Act
What is the New Hampshire Freedom of Information Act?
The Freedom of Information Act (FOIA) enables the general public to request public records from the Federal Government online or in writing. All states in the United States have an open records law, typically an adaptation of the federal FOIA. In New Hampshire, the open records law is the New Hampshire Right to Know Law (RTKL). The law is codified under Chapter 91-A of the Revised Statutes Annotated (RSA). The New Hampshire RTKL is a series of laws created to guarantee that all citizens have access to the public records of all governmental bodies.
The New Hampshire legislature enacted the RTKL to ensure access to all public bodies' actions, records, discussions and demonstrate the government's accountability to the people. The New Hampshire government believes that openness and transparency in the government's conduct of the people's business are essential to a democratic society. Per Section 91-A:4 of the RSA, every citizen may access public records of public agencies and public bodies. All persons may also attend public proceedings in accordance with RSA 91-A:2.
What is Covered Under the New Hampshire Freedom of Information Act?
The New Hampshire RTKL applies to governmental records maintained by public bodies and public agencies. Per RSA 91-A:1-a (III), a governmental record refers to any information made, accepted, or acquired by or on behalf of a public body, a quorum or majority thereof, or any public agency when carrying out its official functions. Without limiting the foregoing, governmental records refer to any written communication or other information, whether in a paper, electronic, or another physical form, received by a majority of a public body in furtherance of its official function whether during or outside the body's meetings. The term "public records" is also included in the definition of governmental records.
Note that according to RSA 91-A:1-a, information means facts, knowledge, opinion, or data of any kind in any physical form kept or maintained, including, but not restricted to, oral, written, visual, electronic, or other physical forms.
A public agency, per RSA 91-A:1-a, is any agency, department, authority, or office of the state or county, town, school district, municipal corporation, school administrative unit, chartered public school, or any political subdivision. A public body as covered under the New Hampshire RTKL refers to:
- The general court, which includes committee executive meetings and any advisory committee constituted by the general court.
- The New Hampshire executive council and the governor with the executive council, including any advisory body created by the governor or the executive council.
- Any board or commission of a state agency or authority, including the board of trustees of the New Hampshire university system, as well as any advisory or other body created by such institutions.
- Any governing body, legislative body, board, committee, agency, commission, or authority of any town, county, municipal corporation, school administrative unit, school district, or charter school. Any political subdivision, subcommittee, committee or subordinate body thereof, or advisory committee to any of the foregoing.
- Any corporation with the State of New Hampshire as its sole member, as well as any county, town, municipal corporation, school administrative unit, village district, or other political subdivision, that is determined by the IRS (Internal Revenue Service) to be a tax-exempt organization pursuant to Section 501(c)(3) of the Internal Revenue Code.
What Records are Exempt from the Freedom of Information Act in New Hampshire?
The Right-to-Know statute expressly excludes the courts and the judicial branch of government from its application. Courts are bound by a constitutional need for transparency akin to, but not identical to, the Right-to-Know statute. Court regulations and Supreme Court precedents outline the public's constitutional right of access to the majority of court proceedings and other court records.
Most charity non-profit institutions are exempt from the Right-to-Know statute. However, most charity organizations are obliged to register with the state and provide specific paperwork. These filings are public and may be obtained via the Attorney General's Office's Charitable Trusts Unit.
However, charitable non-profit corporations with a government entity as their sole member or non-profit corporations composed of government units carrying government work with public funds are subject to the New Hampshire RTKL.
Under RSA 91-A:5, the following are exempted from disclosure under the Right-To-Know Law:
- Records of petit and grand juries
- Records related to parole and pardon boards
- Personal school records of pupils
- Records of internal personnel practices; commercial, confidential, or financial information; test questions, scoring keys, and other examination data related to the administration of a licensing examination, employment examination, or academic examination
- Records pertaining to teacher certification in the department of education
- Records related to matters associated with the preparation for and carrying out of all emergency functions
- Unique pupil identification information obtained in accordance with RSA 193-E:5
- Any notes or materials made for personal use that has no official purpose
- Preliminary drafts, notes, memos, and other documents not in their final form and not circulated, disclosed, or available to a quorum of a majority of the members of a public body.
- Audio and video recordings made by a law enforcement official using a body-worn camera under RSA 105-D, except when recordings depict any of the conditions listed under RSA Section 91-A:5
- Records relating to information technology systems, including cyber security plans, vulnerability testing and assessment materials, detailed network diagrams, or other materials whose disclosure may aid an attempted breach of security or circumvention of a law.
How Do I File a New Hampshire Freedom of Information Act Request?
The New Hampshire RTKL does not specify in exact terms how FOIA requests should be made under the law. However, the law specifies that public agencies and bodies must make available the requested records immediately upon request for any governmental record. Therefore, you may request public records over the telephone, email, mail, fax, in writing, and in person. It is recommended that you check the website of the agency with custody of the record to determine the request policy or process. For instance, the Natural Resources Conservation Service in New Hampshire requires public record requests to be made in writing.
By visiting the agency's website maintaining the public record you request, you may also find a public record request form that may be completed online or an application form to be completed and mailed to the appropriate address on the form or on the website. Otherwise, you can find the contact number of the public record officer or public record section on the agency's website to make an informal public record request by telephone. If you opt to make your request formally in writing, it is recommended that you include the following in your request:
- A statement that your request is being made under the New Hampshire Right to Know Law R.S.A. Ch. 91-A et seq.
- Your contact information, including phone number and address
- Detailed information about the record being requested
- A time range for the agency to search to locate the record
New Hampshire Division of Fire Safety
33 Hazen Drive
Concord, NH 03305
(Attention 91-A Right to Know Coordinator)
The New Hampshire Division of Fire Safety advises requesters to make requests specific by including information such as dates, names of parties involved, addresses, and the town where the incident occurred in order to enable an expedited response.
To make a public record request to the New Hampshire National Guard, contact email@example.com. For more information on FOIA requests to the agency, visit the FOIA request page on the New Hampshire National Guard website.
What is the Cost of a Freedom of Information Act Request in New Hampshire?
Pursuant to RSA Section 91-A:4, if a public agency or body uses a computer, photocopying machine, or other devices it maintains to copy a requested governmental record, the requester may be required to pay the actual cost of providing the copy. Under the RTKL, the public agency or body may not charge any fee for the inspection or delivery of a public record if copying the record is not required, regardless of whether the record is in electronic, paper, or another form. Hence, the cost for a FOIA request depends on the actual cost incurred by the agency in providing a public record to a requester. There are no specific provisions for fee waivers under the New Hampshire RTKL; however, public agencies or bodies may provide waivers at their own discretion.
How Long Does it Take to Respond to a Freedom of Information Act Request in New Hampshire?
New Hampshire law provides for a five-day response period for public records requests. Per RSA 91-A:4, if a public body or agency is unable to make a public record immediately accessible for inspection and copying, the public body or agency must, within five business days after a request:
- Make such records accessible;
- Deny the request; or
- Provide a written statement acknowledging the receipt of the request and stating the period reasonably required to assess whether the request will be granted or denied, as well as the cause for the delay.
Unusual circumstances as determined by the New Hampshire Supreme Court under which a public agency or body may be unable to produce a requested record immediately are if the agency or body is too busy or understaffed.
Although there are no provisions for an administrative appeal to the noncompliance with the provisions of the RTKL by an agency, RSA 91-A:7 provides an immediate remedy in Superior Court where the case is given high priority on the court calendar.