Nashua, AG ask Supreme Court to exempt backup tapes from Right-to-Know Law

Mar. 21—CONCORD — Emails and other government records stored in computer backup tapes should be off limits to the state Right-to-Know Law, lawyers for the City of Nashua and Attorney General John Formella said on Tuesday.

The lawyers spoke before the New Hampshire Supreme Court, which heard an appeal from the City of Nashua, over a Right-to-Know case it lost in February 2022.

The high court also heard an appeal in a defamation case brought by a conservative who sued the New Hampshire Union Leader and columnist Robert Azzi over a column that he said accused him of favoring white supremacy.

Nashua resident Laurie Ortolano, who files numerous public records requests with the city, had sought emails between city assessing department workers for a five-month period in late 2020 and early 2021.

Ortolano was seeking information on property-tax abatements, but by the time the city acknowledged her request in June 2021, much of the material had been automatically deleted from the city's Outlook email folder and moved to backup tapes, which are kept to safeguard against catastrophic losses.

Nashua claims the state Right-to-Know Law language limits the scope of searches with language that includes "reasonable," "readily accessible" and "initially and legally deleted."

"It's not just a few mouse clicks away," said Celia Leonard, Nashua staff counsel. She said it would take two or three hours for the city's Information Technology department to convert the backup tape to readable, searchable files to comply with the request.

Matthew Broadhead, a senior assistant attorney general, said the state Department of Justice fears that a broad ruling by the Supreme Court would treat all backup tapes as government records. Broadhead asked for a narrow ruling that focused just on the Nashua case.

Complicating the issue is whether Nashua followed proper procedures for archiving the information. Ortolano noted that the city at one point was retaining emails for only 60 days, and she faulted the city for not complying with state laws for record retention.

"How can they be moved to backup in 60 days? They should last longer," she said.

But the trial court ruling by Superior Court Judge Charles Temple did not address the retention period; Temple only ruled that the backup tapes were readily accessible and fit the definition of public records, a thought echoed by Chief Justice Gordon MacDonald.

"How is a two- or three-hour search not readily and accessible?" MacDonald asked.

Temple also ordered the City of Nashua officials to undergo training on the Right-to-Know Law. Leonard has said the training should not be required if the Supreme Court overturns the ruling.

Defamation case appeal

The defamation case was filed by Daniel Richards, a Hanover businessman who testified before the Legislature in favor of the divisive concepts legislation, which critics say limits instruction on topics such as racism in New Hampshire schools.

A Muslim-American, Azzi faulted Richards, former U.S. House Speaker Newt Gingrich, state Education Commissioner Frank Edelblut and others for disseminating white supremacist ideology and protecting White privilege and power.

"People accuse courts of doing bad all the time. We don't have a right of action. We don't sue," said Justice Gary Hicks.

Richards' lawyer, Samantha Harris, said the biggest issue with the piece is that it provided no facts or context for readers to decide whether Azzi's statements about Richards were correct or not.

Concord lawyer Michael Lewis, who represented Azzi, said Richards should be considered a public figure, which makes it harder to prove defamation. Richards testified at legislative hearings, both in New Hampshire and elsewhere, made YouTube videos and wrote opinion pieces.

"He entered a public debate," Lewis said.

The court ruled on neither case from the bench, and decisions usually take months.