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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2015-0274

DONNA M. GREEN

v.

SCHOOL ADMINISTRATIVE UNIT #55 & a.

Argued: January 7, 2016

Opinion Issued: April 19, 2016

Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on 

the brief and orally), for the plaintiff.

Drummond Woodsum & MacMahon, of Manchester (Matthew R. Serge

and Anna B. Cole on the brief, and Mr. Serge orally), for the defendants.

BASSETT, J. The plaintiff, Donna M. Green, appeals a decision of the 

Superior Court (Anderson, J.) entering judgment in favor of the defendants —

School Administrative Unit #55 (SAU), Timberlane Regional School District, 

Nancy Steenson, and Earl F. Metzler, II — and concluding that the plaintiff was 

not entitled to receive electronic copies of documents that she had requested 

from the defendants. We reverse.

The following facts are undisputed or are otherwise supported by the 

record. The plaintiff is a member of the Timberlane Regional School Board. On 
2

January 21, 2015, she requested budget-related documents from the SAU for 

herself and the school board. In response, Steenson, the chair of the school 

board, requested that the plaintiff make a motion for the documents on behalf 

of the school board.

On January 23, the plaintiff informed the SAU that her document 

request was made pursuant to the Right-to-Know Law. See generally RSA ch. 

91-A (2013 & Supp. 2015). On January 26, the SAU responded that the 

plaintiff could make an appointment to “see the documents” that she had 

requested. The plaintiff replied, “in that case, give me the file electronically and 

we will all save money and time”; in response to this communication, the SAU

stated that it had already responded to the plaintiff’s request. The plaintiff

then noted that her “request is for an electronic file . . . or a paper report, 

whichever suits the district,” and she declined to make an appointment to view

the documents. The plaintiff explained that “[a]ll of the documents requested 

could have been emailed or copied in the time it has taken to answer these 

excuses for not providing [them]. . . . This isn’t that difficult.” In response, the 

SAU stated that the documents that she requested were immediately “available 

for public inspection.”

On January 27 and January 29, the plaintiff again requested the 

documents in electronic format. The SAU refused to provide the documents in 

electronic format, again noting that the paper documents were available for 

inspection. This response by the SAU was consistent with its written policy

governing Right-to-Know requests, which states, in pertinent part, that 

“[m]aterials and/[or] documentation produced to fulfill a Right to Know request 

shall be subject to a charge [of] $.50 per page” and that “only hardcopies will be 

produced; no electronic copies will be provided.”

On February 3, the plaintiff filed a complaint in superior court alleging 

that the defendants violated RSA 91-A:4 (2013) by not producing the requested 

documents in electronic format. The plaintiff requested that the trial court 

order the SAU to “immediately provide an electronic file [of the requested

documents] in a mutually agreeable format.” In response, the defendants filed 

a motion to dismiss in which they argued that they were not obligated to 

provide the requested documents in electronic format and that they complied 

with the Right-to-Know Law by making the paper documents available for 

inspection.

Following a hearing, the trial court concluded that the plaintiff was not 

entitled to electronic copies of the requested documents. Although the trial 

court noted that there “may be a strong policy argument to be made” for 

requiring public entities to produce documents in electronic format, the trial 

court explained that RSA 91-A:4, V states “in fairly plain language” that “it is 

the choice of the public entity whether to produce documents in electronic or 

conventional format.” Because the trial court found that the statute provided 
3

the SAU with discretion as to whether to provide the documents in electronic 

format, it entered judgment in favor of the defendants. The plaintiff filed a 

motion for reconsideration, which was denied. This appeal followed.

On appeal, the plaintiff argues that, under RSA 91-A:4, V, she was 

entitled to receive the requested documents in electronic format, and, therefore, 

the trial court’s decision to the contrary was error. Although the defendants do 

not dispute that the requested documents are governmental records that are 

maintained in electronic format, they argue that the trial court correctly 

determined that, under RSA 91-A:4, V, they are not required to provide the 

records to the plaintiff in electronic format.

Resolving this issue requires us to interpret the Right-to-Know Law; 

therefore, our review is de novo. See Prof’l Firefighters of N.H. v. Local Gov’t 

Ctr., 159 N.H. 699, 703 (2010). “The ordinary rules of statutory construction 

apply to our review of the Right-to-Know Law.” CaremarkPCS Health v. N.H. 

Dep’t of Admin. Servs., 167 N.H. 583, 587 (2015) (quotation omitted). “Thus, 

we are the final arbiter of the legislature’s intent as expressed in the words of 

the statute considered as a whole.” Id. (quotation omitted). “When examining 

the language of a statute, we ascribe the plain and ordinary meaning to the 

words used.” Id. (quotation omitted). “We interpret legislative intent from the 

statute as written and will not consider what the legislature might have said or 

add language that the legislature did not see fit to include.” Id. (quotation 

omitted). “We also interpret a statute in the context of the overall statutory 

scheme and not in isolation.” Id. (quotation omitted).

Because the “purpose of the Right-to-Know Law is to ensure both the 

greatest possible public access to the actions, discussions and records of all 

public bodies, and their accountability to the people,” we “resolve questions 

regarding the Right-to-Know Law with a view to providing the utmost 

information in order to best effectuate these statutory and constitutional 

objectives.” Id. (quotations omitted); see Prof’l Firefighters of N.H., 159 N.H. at 

705; see also N.H. CONST. pt. I, art. 8. “As a result, we broadly construe 

provisions favoring disclosure and interpret the exemptions restrictively.” 

CaremarkPCS Health, 167 N.H. at 587 (quotation omitted).

RSA 91-A:4, V provides, in pertinent part, that:

In the same manner as set forth in RSA 91-A:4, IV, any 

public body or agency which maintains governmental records in 

electronic format may, in lieu of providing original records, copy 

governmental records requested to electronic media using standard 

or common file formats in a manner that does not reveal 

information which is confidential under this chapter or any other 

law. If copying to electronic media is not reasonably practicable, or 

if the person or entity requesting access requests a different 
4

method, the public body or agency may provide a printout of 

governmental records requested, or may use any other means 

reasonably calculated to comply with the request in light of the 

purpose of this chapter as expressed in RSA 91-A:1.

(Emphases added.) RSA 91-A:4, IV, in turn, provides, in relevant part, that:

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. . . . 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.

The plaintiff argues that, although RSA 91-A:4, V uses the word “may,” 

the statute “clearly indicates that the governmental unit is not given unfettered 

discretion to produce information in any way it chooses.” Cf. City of Rochester 

v. Corpening, 153 N.H. 571, 574 (2006) (“The general rule of statutory 

construction is that the word ‘may’ makes enforcement of a statute permissive 

and that the word ‘shall’ requires mandatory enforcement.” (quotation 

omitted)). According to the plaintiff, the first sentence of RSA 91-A:4, V 

provides the defendants not with the option of producing “a paper printout of 

electronic records,” but rather with a choice of whether to provide either the 

“original records,” or to, instead, “copy governmental records requested to 

electronic media using standard or common file formats.” (Quotations

omitted.) The plaintiff contends that the “original records” in this case reside 

on a computer in the SAU, and, therefore, the defendants were required to 

produce the documents in electronic form — either by providing the original 

documents or by copying them to electronic media using standard or common 

file formats.

The plaintiff further argues that the second sentence of RSA 91-A:4, V 

“makes it clear that the authority to produce a hard-copy form of an 

electronically stored document arises only . . . if copying to electronic media is 

not reasonably practicable, or if the person or entity requesting access requests 

a different method.” (Quotation omitted.) According to her, neither 

precondition is met because the trial court did not determine whether copying 

to electronic media is not reasonably practicable, and she eventually sought 

the records only in electronic format.

In response, the defendants argue that the plaintiff misreads RSA 91-

A:4, V. The defendants contend that, because RSA 91-A:4, V uses the word 
5

“may” as opposed to “shall,” the statute simply gives public bodies the option of 

producing governmental records in electronic format. See City of Rochester, 

153 N.H. at 574 (explaining the difference between the words “may” and 

“shall”). For support, the defendants contrast this statute with statutes in 

other states concerning the public’s access to governmental records, which, 

unlike RSA 91-A:4, V, explicitly require the disclosure of governmental records 

in the format requested. See, e.g., Neb. Rev. Stat. § 84-712(3)(a) (2014) 

(providing that public records “may be obtained in any form designated by the 

requester in which the public record is maintained or produced, including, but 

not limited to, printouts, electronic data, discs, tapes, and photocopies”); Vt. 

Stat. Ann. tit. 1, § 316(i) (2015) (“If an agency maintains public records in an 

electronic format, nonexempt public records shall be available for copying in 

either the standard electronic format or the standard paper format, as 

designated by the party requesting the records.”).

The defendants also assert that the reference to RSA 91-A:4, IV in RSA 

91-A:4, V establishes that public bodies are required only to make 

governmental records available for inspection and copying, and that there is no 

affirmative duty to provide copies of records to requesting parties. See RSA 91-

A:4, IV (“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.”). Thus, because the defendants made the paper 

documents available to the plaintiff for inspection and copying, they argue that 

they fulfilled their statutory obligations. See Gallagher v. Town of Windham, 

121 N.H. 156, 159 (1981) (concluding, under prior version of RSA 91-A:4, that 

there is no “absolute duty on towns or agencies to provide copies of public 

records to citizens” because the statute contemplates only “that public records 

be made available to individual members of the public for their inspection and 

reproduction”).

After reviewing the parties’ arguments, we find that both proffered 

interpretations of RSA 91-A:4, V are reasonable. Accordingly, we conclude that 

the statute is ambiguous. See Appeal of Old Dutch Mustard Co., 166 N.H. 501, 

507 (2014). “Under such circumstances, we turn to the legislative history to 

aid in our interpretation of the meaning of the statutory language.” Id.; see

United States v. Howe, 167 N.H. 143, 148-49 (2014) (turning to legislative 

history because parties’ proffered constructions of statute were both 

reasonable). Here, however, the legislative history of RSA 91-A:4, V provides 

little guidance regarding the specific issue before us. We, therefore, look to the 

purpose of the Right-to-Know Law, which is to “increas[e] public access to all 

public documents and governmental proceedings, and to provide the utmost 

information to the public about what its government is up to.” Prof’l 

Firefighters of N.H., 159 N.H. at 705 (quotation and citations omitted).
6

In light of the purpose of the Right-to-Know Law, and our broad 

construction of it, we conclude that the trial court erred when it determined 

that the plaintiff was not entitled to the requested documents in electronic 

format. Although the SAU notified the plaintiff that the documents that she 

requested were available for inspection, there is no evidence in the record that 

the paper documents made available constituted “original records” as 

contemplated by RSA 91-A:4, V. Moreover, there is no evidence that it was “not 

reasonably practicable” to copy the requested documents “to electronic media 

using standard or common file formats.” RSA 91-A:4, V. Further, although the 

plaintiff initially requested the documents in either paper or electronic format, 

she later modified that request — including the request set forth in the 

complaint that she filed in the trial court — seeking the documents in only 

electronic format. We also note that the defendants have not argued that, in 

order to produce the requested documents in electronic format, they would be 

required to compile or assemble the documents into a new format. See RSA 

91-A:4, VII (“Nothing in this chapter shall be construed to require a public body 

or agency to compile, cross-reference, or assemble information into a form in 

which it is not already kept or reported by that body or agency.”); see also

Hawkins v. N.H. Dep’t of Health and Human Services, 147 N.H. 376, 379 

(2001) (explaining that, under a prior version of the Right-to-Know Law, the 

public body was not required to create a new document in response to a 

request under RSA chapter 91-A). Nor have the defendants argued that the 

requested documents contained confidential information. See RSA 91-A:4, V 

(stating that confidential information shall not be provided). Under these 

circumstances, we cannot conclude that the defendants fulfilled their statutory 

obligations.

Accordingly, we conclude that the plaintiff was entitled to the requested 

documents in electronic format. The trial court’s decision to the contrary was, 

therefore, in error.

We observe that requiring the defendants to produce the requested 

documents in electronic format advances the purpose of the Right-to-Know 

Law, which is to improve public access to governmental records and “provide

the utmost information to the public about what [the] government is up to.” 

Prof’l Firefighters of N.H., 159 N.H. at 705 (quotation omitted). Given that the 

“overwhelming majority of information” today “is created and stored 

electronically,” U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 

237 n.23 (S.D. Cal. 2015) (quotation omitted), we agree with the plaintiff that 

the “[d]issemination of public, non-confidential information in commonly used 

[electronic] formats ensures the greatest degree of openness and the greatest 

amount of public access to the decisions made by the public officials.” See

Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003) 

(explaining that, unlike paper evidence, electronic evidence “can be searched 

automatically, key words can be run . . . , and the production can be made in 

electronic form obviating the need for mass photocopying”).
7

Furthermore, producing electronic documents is often more efficient and 

cost-effective than producing them in paper form. See Mechling v. City of 

Monroe, 222 P.3d 808, 817 (Wash. Ct. App. 2009) (“Providing electronic records

can be cheaper and easier for [a public body] than paper records.” (quotation 

omitted)). We recognized this reality over 40 years ago in Menge v. Manchester, 

113 N.H. 533 (1973), in which we held that, under a prior version of the Rightto-Know Law, the plaintiff was entitled to the production of certain 

computerized tapes of field record cards from the defendants. Menge, 113 N.H. 

at 535-38. As we stated in Menge:

The ease and minimal cost of the [computerized] tape reproduction 

as compared to the expense and labor involved in abstracting the 

information from the field cards are a common sense argument in 

favor of the former. . . . Taking into account the practical realities 

of the situation, we believe it not only possible, but in accord with 

our law and what seems to be its basic philosophy, to so construe 

the statute as to permit plaintiff to have the reproduced tapes at 

his expense.

Id. at 538 (quotation omitted). It is worth noting that when we decided Menge, 

personal computers, laptops, tablets, smartphones, and other forms of modern 

technology did not exist. Cf. Bancorp Services v. Sun Life Assur. Co. of 

Canada, 687 F.3d 1266, 1277 (Fed. Cir. 2012) (observing that “[m]odern 

computer technology offers immense capabilities and a broad range of 

utilities”). In the intervening 43 years, advances in storing, copying, 

transferring, and analyzing computerized data have facilitated the public’s 

access to “the utmost information . . . about what its government is up to,” 

Prof’l Firefighters of N.H., 159 N.H. at 705 (quotation omitted). See John B. v. 

Goetz, 879 F. Supp. 2d 787, 877 (M.D. Tenn. 2010) (“Electronically stored 

information, if kept in electronic form . . . can be very inexpensive to search 

through and sort using simple, readily available technologies . . . . The cost of 

copying and transporting electronically stored information is virtually nil.” 

(quotation and emphasis omitted)).

In sum, under all the circumstances, we conclude that the plaintiff is

entitled to the requested documents in electronic format. We note, however, 

that if the legislature disagrees with our statutory interpretation, it is “free to 

amend the statute as it sees fit.” Forster v. Town of Henniker, 167 N.H. 745, 

753 (2015). Finally, any issues raised in the notice of appeal that were not 

briefed are deemed waived. See Waterfield v. Meredith Corp., 161 N.H. 707, 

713 (2011). 

Reversed.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.