THE STATE OF NEW HAMPSHIRE SUPREME COURT. Docket No David K. Taylor. School Administrative Unit 55

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT Docket No David K. Taylor v. School Administrative Unit 55 RULE 7 APPEAL FROM LOWER COURT DECISION ON THE MERITS ROCKINGHAM COUNTY SUPERIOR COURT REPLY BRIEF FOR DAVID K. TAYLOR APPELLANT David K. Taylor, pro se 16 Surrey Lane Durham, NH (603) ORAL ARGUMENT WAIVED i

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii REPLY I. Taylor Preserved the Constitutional Question for Appeal II. This Court has Held a Constitutional Right of Access that Exceeds RSA 91-A 3 III. Taylor Preserved the File Format Issue for Appeal IV. The Record is Sufficient to Decide the Issues on Appeal V. No Fee Should be Read Broadly to Prohibit Costs VI. The Menge Court Ordered Delivery VII. Taylor Made no Claim for Unreasonable Urgency VIII. The SAU has Control Needed to Deliver by Forwarding IX. The SAU has not Fulfilled its Heavy Burden to Deny Forwarding CERTIFICATE OF SERVICE ii

3 TABLE OF AUTHORITIES Cases 38 Endicott Street v. State Fire Marshall, 163 N.H. 656, 660 (2012) Green v. SAU 55, Doc. No (slip op. at 4, 7), 168 N.H. 796 (2016).. 4 Hughes v. Speaker, N.H. House of Representatives, 152 N.H. 276 (2005) Menge v. City of Manchester, 113 N.H. 533 (1973) , 7 Merrill v. Sherburne, 1 N.H. 199 (1818) Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, (2000). 1, 2 Petition of Keene Sentinel, 136 N.H. 121 (1992) State v. Tselios, 134 N.H. 405, 407 (1991) , 2, 4, 9 Statutes RSA 91-A passim Part 1, Article 8 N.H. CONST Other IETF. RFC Internet Message Format (2008) ( accessed April 30, 2017) Webster s New Universal Unabridged Dictionary, 2nd ed., 481 (1979) iii

4 I. Taylor Preserved the Constitutional Question for Appeal The SAU argues that Taylor did not preserve his constitutional question, Taylor Brief at 2 5, for appeal. SAU Brief at The SAU relies on State v. Tselios, 134 N.H. 405, 407 (1991) and Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, (2000). However, this reliance is misplaced. First, Taylor generally claimed the SAU violated his constitutional rights in the title of the petition, App. 1, and in Count II. App. 15. This was sufficient to put the SAU on notice of any constitutional violations based on the alleged facts of the case. Second, as the SAU acknowledges, SAU Brief at 23, Taylor clearly stated his specific claim that the unreasonable refusal to provide the Thomas-Conlon by was a violation of his constitutional right in the Plaintiff s Motion for Reconsideration. App Both the petition and motion for reconsideration were at the trial court level. The SAU s citation of Tselios is incomplete. SAU Brief at 22. The complete citation supports that Taylor s claim is preserved for appeal. Although we recognize our long-standing rule that parties may not have judicial review of matters not raised at the earliest possible time, the rationale behind the rule is that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court. In this case, the defendant raised this issue for the first time in his motion to reconsider. Accordingly, his objection to the court's default order was still before the appropriate trial forum, and his earlier failure to raise the issue did not deprive the trial court of a full opportunity to correct its error. Moreover, the defendant's general theory of entitlement to relief was preserved in his motion to strike, and the trial court's error of law would have been at issue as long as the defendant raised his objection in a motion before the trial court. Therefore, the defendant's 1

5 argument was properly preserved, and the trial court's error is properly before this court. Tselios at 407 (internal citations omitted). As in Tselios, Taylor raised his general theory of entitlement to relief in his petition and raised the issue more specifically for the first time in his motion to reconsider. Id. Further, the case at bar is distinguishable from Mt. Vally Mall Assocs. In Mt. Valley, the Court noted the plaintiff alleged no less than thirty separate violations by the board. Mt. Valley at 655. In the case at bar, Taylor only alleged a handful of separate violations. Further, the Court distinguished Mt. Valley from Tselios, because unlike Tselios, where the trial court reached the merits of the claim on reconsideration, see id. at , here, the trial court expressly refused to consider the merits of the claim, and we must review that decision for an abuse of discretion. Mt. Valley at 655. Unlike Mt. Valley where the trial court expressly refused to consider the merits of the claim, id., in the case at bar the trial court did not recognize the claim at all, did not reach the merits, nor expressly refused to consider the merits of the claim. The trial court ruled Plaintiff s motion for reconsideration is Denied for the reasons stated in Defendant s opposition and in the Court s October 24, 2016 order. App The Respondent s Objection to Taylor s Motion for Reconsideration does not mention Taylor s constitutional claim, let alone provide an argument against it. App The trial court s Final Order of October 24, 2016 also does not mention Taylor s constitutional claim concerning the Thomas-Conlon . App Therefore, Mt. Valley does not apply to the case at bar, but Tselios does and Taylor s constitutional claim is preserved for appeal. 2

6 II. This Court has Held a Constitutional Right of Access that Exceeds RSA 91-A The SAU also argues that [t]his Court has never held that the constitutional right of access exceeds that which is embodied in RSA 91-A. SAU Brief at 24. However, this Court found a constitutional right of access to court records in Petition of Keene Sentinel, 136 N.H. 121 (1992) that was not embodied in RSA 91-A. Similarly, this Court found it could only enforce right of access to legislative meetings under the constitution and not under RSA 91-A in Hughes v. Speaker, N.H. House of Representatives, 152 N.H. 276 (2005). See also, Merrill v. Sherburne, 1 N.H. 199 (1818). The SAU argues that they will be unable to conform their conduct accordingly, SAU Brief at 24, if held to a constitutionally mandated standard beyond that embodied in RSA 91-A. This is extraordinary, given that the constitutionally mandated standard is simply access shall not be unreasonably restricted. N.H. CONST. pt. 1, art. 8. Taylor only claims that it is common sense and reasonable for the SAU to forward the Thomas-Conlon . III. Taylor Preserved the File Format Issue for Appeal The SAU argues that Taylor failed to preserve the issue of file format, Taylor Brief at 2 4, for appeal. SAU Brief at They inaccurately state that Taylor first raised the issue in his motion for reconsideration. Id. Taylor in his petition alleged that he expressly requested the Thomas-Conlon as a forwarded and that the SAU failed to provide the Thomas-Conlon as a forwarded . App Further, 3

7 the petition expressly sought the remedy of forwarding the . App. 17. Taylor argued that the PDF format was different than the requested format of a forwarded in his trial memorandum. App The trial court considered the issue and ruled on it in its Final Order. App ( The Court in Green did not distinguish between various forms of electronic formatting. ). Taylor again raised the issue before the trial court in his motion to reconsider. App It is undisputed that Taylor requested a forwarded and the SAU offered a PDF file. The issue of file format has been properly preserved for appeal. See, Tselios at 407. IV. The Record is Sufficient to Decide the Issues on Appeal The SAU argues that the record on appeal should be limited to those facts expressly found in the trial court s Final Order or as implicitly adopted by its denial of Taylor s Motion for Reconsideration. SAU Brief at 4; Id. at 9. They claim this is because, in part, Taylor failed to request copies of the exhibits. Id. Rule 13 establishes 2 ways to submit the record on appeal, either by appendix or transmittal. Only a transmittal needs to be requested. Rule 13(4). Taylor provided an appendix with copies of all relevant exhibits. App These exhibits are not in dispute. In their brief, the SAU repeatedly refers to an exhibit from Taylor s appendix. See e.g., SAU Brief at 5. The only adjudicative facts at issue not found in the trial court s orders are evident in the exhibits. See Taylor Brief at 6-9. The trial court hearing focused primarily on the issue of actual costs for paper copies. The trial court ruled Taylor did not have standing on this issue and Taylor did not appeal this issue. Therefore, the transcript is not relevant to the issues on appeal. 4

8 V. No Fee Should be Read Broadly to Prohibit Costs The SAU argues that while fees may sometimes serve to cover costs, a cost is not necessarily a fee. SAU Brief at 29. While not clear, the SAU seems to be arguing that the No Fee Provision does not prohibit them from charging for costs. The SAU posits a panoply of possible meanings for fee. Id. at The purported distinction between cost and fee is contradicted by the provision of RSA 91-A:4, IV that limits charges to the actual cost and the similar use of fee in RSA 91-A:10, VI that provides fees shall be based on the cost of providing the copy. To the extent this Court sees fee as ambiguous in the No Fee Provision, the legislative history for HB 606 shows no support for a limited meaning of the word instead of a general synonym for charge including costs. Indeed, the legislative history shows the intent of HB 606 was for fee to be read broadly as it is used interchangeably with cost and charge. App ; SAU App The title of the bill throughout was relative to costs for public records filed electronically. App. 62 (emphasis added). The initial language of the bill as introduced used the terms charge as well as fee may be charged for the actual costs. App. 63. The final language of the bill signed into law uses the phrase [n]o fee shall be charged. App. 65. The majority report to the House states the bill also includes access to online records without a charge. App The minority report described that the original bill allow[ed] for a fee for actual costs and the fee to charge. App. 63. The Senate report refers to whether or not a public body or agency can charge for making a governmental record available for inspection, or charge a fee for inspection of such 5

9 record. Under current law, a fee can be charged for an actual copy. This legislation states that you can inspect a document without charge, and documents available in electronic form you cannot be charged for. App Note there is no statute that allows the SAU to charge Taylor any other fee besides that to cover actual cost for a copy of the Thomas-Conlon . Lastly, in order to fulfill the purpose of RSA 91-A, the term fee should be interpreted in order to provide the greatest possible access. Namely, fee should be interpreted to mean any charge that the requester must pay in order to gain access. Thus the No Fee Provision prohibits any charges including those that cover costs. VI. The Menge Court Ordered Delivery The SAU goes to great linguistic effort to avoid the obvious conclusion that the Menge Court ordered the City of Manchester to make and deliver the requested electronic records to Menge in the requested file format and on the requested electronic media of a computer tape. The SAU says in Menge the plaintiff [was] permitted to have a copy of computerized tape made at its expense, SAU Brief 12, and because it would be absurd for a public body to hand over a computerized tape for a citizen to copy, this Court held that Menge was permitted to have the City make a copy of the computerized tape for him at his expense. SAU Brief 20. Merge didn t need the Court order to be permitted to have the City make a copy. Merge had already offered to pay for the tape. What was lacking was the willingness of the City to make and deliver the tape. The Court had to order the City to make and deliver the copy to Menge. In the same way, the SAU is unwilling to forward the Thomas-Conlon . 6

10 The SAU again tries to impose a limited reading of delivery, seeming to only mean remotely at a citizen s home or place of business. SAU Brief 6. Delivery broadly means a giving or handing over; transfer. Webster s at 481 (1979). Thus, a delivery includes a transfer at the SAU s regular place of business as well as over the Internet to anywhere in the world. While the SAU acknowledges that direct access to its electronic systems, SAU Brief at 21, is absurd, id. at 20, and there is no dispute that a citizen is entitled to electronic copies of electronic governmental records, id. at 10, the SAU then denies the obvious conclusion, consistent with Menge and RSA 91-A:4, V, that the SAU therefore has a duty to actively provide or deliver electronic records. The absurdness of direct access to electronic records shifts the burden of the SAU beyond mere availability, SAU Brief at 6, under RSA 91-A:4, IV for paper or other physical records, to providing access, RSA 91-A:4, V, the only way that is practical, namely by delivering them. VII. Taylor Made no Claim for Unreasonable Urgency The SAU falsely claims [u]nder Taylor s vision of RSA 91-A, any citizen can sit at home and fire off Right-to-Know requests via and demand that a public body send back records immediately, all without leaving the couch or office chair. SAU Brief at Taylor made no claim of immediate reply. RSA 91-A:4, V in no way alters the time requirements of RSA 91-A:4, I and IV. The SAU need only respond to requests during regular or business hours, RSA 91-A:4, I, and has 5 business days, RSA 91- A:4, IV to respond to requests when such records are [not] immediately available. Id. 7

11 Indeed the record shows Taylor was very polite, reasonable and accommodating with Belcher. App , He waited twice as long as RSA 91-A:4, IV required before making a follow up request. App. 23. Indeed, Taylor asked for the method of delivery that would be the fastest, cheapest and least interrupting, namely for the SAU to simply forward the Thomas-Conlon . Taylor only asks for a reasonable method of delivery, not an unreasonable urgency. VIII. The SAU has Control Needed to Deliver by Forwarding Taylor does not dispute that the original Thomas-Conlon was in the possession of the Hampstead School District and was sent to Belcher as a PDF. At the time of Taylor s request, the SAU was not in possession of the Thomas- Conlon . This was because Thomas-Conlon sent the using the Hampstead School District s server, which the SAU does not maintain. In order to fulfill Taylor s request, Belcher requested a copy of the Thomas-Conlon from the Hampstead School District, and was prepared to provide it to Taylor in the format that she had received it, i.e., in PDF format. At no time was the SAU in possession of the in so-called native format. SAU Brief at 5 (citations omitted). However, the claim that the SAU does not have custody of the native format of the is not compelling. The SAU is an administratively superior entity and has power or influence over, SAU Brief at 14, the Hampstead School District. Hence, the native record is within the control of the SAU. See, RSA 91-A:4, I. Indeed, the SAU exercised that control when they asked for the Hampstead School District to locate the and then make and send the PDF rendering of the to the SAU. The 8

12 SAU can exercise the same control to ask the Hampstead School District to forward the to Taylor. IX. The SAU has not Fulfilled its Heavy Burden to Deny Forwarding The SAU makes a panoply of claims related to the file format of a forwarded . SAU Brief at But, it all ignores the basic fact that Taylor requested the Thomas-Conlon as a forwarded , nothing more and nothing less. It is not up to the SAU to decide whether some other file format would be better or worse for Taylor. The SAU makes the absurd claim that as plaintext does not adhere to a standard file format, SAU Brief at 31, and in the very next sentence cites the governing standard is RFC SAU Brief at 32. That individual characters in a file are stored in plaintext does not mean that the rules governing the symbols or syntax of that text is not a format. Besides the citation to RFC 5322 that supports is a standard file format, the SAU cites no authority for any of its conclusory claims about the file format of , its metadata, attachments, PDF file format, etc. The SAU failed to raise these issues of a forwarded except on appeal. As such, these arguments are not preserved. See Tselios at 407, supra. Taylor did not ask for hidden headers, but only those that are rendered as text in the body of the forwarded . That there might be other metadata that is not rendered in a forwarded does not invalidate Taylor s request for the specific format. When the SAU forwards or replies to an , as they certainly do on a regular basis, see App , they can readily see how the referenced is rendered in the 9

13 body of the new . There is no additional factual record necessary to evaluate this common procedure. The burden of proving that the SAU cannot reasonably provide Taylor with the Thomas-Conlon in the format Taylor requested falls on the SAU. It is the SAU who is denying Taylor access to the Thomas-Conlon by denying him the reasonable method of delivery. The burden of proving the and the PDF are the same falls on the SAU who has not sustained that burden. A public entity seeking to avoid disclosure under the Right-to-Know Law bears a heavy burden to shift the balance toward nondisclosure." 38 Endicott Street v. State Fire Marshall, 163 N.H. 656, 660 (2012) (internal quotes omitted). The SAU has not proven it is unreasonable for them to forward the Thomas-Conlon to Taylor as he requested it. Date: David K. Taylor, pro se 16 Surrey Lane Durham, NH (603) CERTIFICATE OF SERVICE I hereby certify that 2 copies of the foregoing have been hand delivered or mailed by first-class mail on or before this date to Demetrio Aspiras, Esq., Drummond Woodsum, 100 International Drive, Suite 340, Portsmouth, NH David K. Taylor. pro se 10