City appeals ombudsman's decision, seeks redress in Superior Court

Editor's note: This is one in an occasional series focusing on The Rochester Voice v. City of Rochester complaint over the city's refusal to honor digital Right to Know requests made by The Rochester Voice. The city of Rochester contends it doesn't have to comply with such requests, because Rochester Voice editor Harrison Thorp is not a New Hampshire citizen.
ROCHESTER - The City of Rochester has appealed the decision, or more specifically, the indecision, of the state's Right to Know Ombudsman's Office, which on Nov. 6 ruled that they were unable to render a ruling on the meaning of the word "citizen" as used in New Hampshire's Right to Know statute, 91-A.
The appeal was filed in Merrimack Superior Court by Rochester City Attorney Terence O'Rourke on Nov. 8. The appeal came two days after the state's RTK ombudsmen, Attorney Thomas Kerr, ruled that, "A host of legal questions, some of potentially constitutional magnitude, underly (sic) the core issued identified in this case. As a matter of institutional authority and the sound structure of government, the RKO (Right to Know Ombudsman) believes that his agency is not the suitable forum in which to address such matters."

Kehr said the meaning of the word "citizen" would have to be decided either in the state legislature or the courts.

A summons sent to Rochester Voice editor and publisher Harrison Thorp notes that, "The court has granted ... the plaintiff's (City of Rochester) request that the decision of the ombudsman be reviewed."
An initial hearing was scheduled for Dec. 12, but that hearing has been continued till sometime early next year.
In a description of the facts of the case written by O'Rourke, he states, "The entire case involves the meaning of the word 'citizen' in RSA 91-A:4, I. The Right to Know Ombudsman decided that the issue was outside of his authority to decide. Essentially, it is the City of Rochester's position that the word 'citizen' ... refers to a citizen of the State of New Hampshire. Mr. Thorp's definition in (sic) unclear, however, one must assume that he, as a citizen of Maine, desires that 'citizen' be defined as citizen of the United States."
Thorp disputes that his definition of citizen is "unclear" as O'Rourke contends, noting that during a taped prehearing at the ombudsman's office on Sept. 22 he stated that he took the position that citizen refers to "U.S. citizen."
During the same prehearing conference, O'Rourke argued that illegal immigrants living in Rochester would have standing to receive digital RTK documents, while Thorp, a citizen of Maine, would not.
The dispute between the City of Rochester and The Rochester Voice began on April 12 when O'Rourke stated in an email that because Thorp is a citizen of Maine, he would no longer be granted digital RTK requests, but was free to walk into city departments during regular business hours and ask to inspect specific documents.
Thorp has contended all along that process would be a huge burden on the award-winning digital daily, which exposed a 2022 flawed purchase and sale agreement on a Highland Street property that the city is eyeing for a third fire station.
Former Rochester city manager Blaine Cox told the City Council earlier this year that he had changed the wording for future purchase and sale agreements so that the city wouldn't be liable if City Council voted against a land purchase in the future.
The Rochester Voice's series of stories on the flawed land purchase won it the coveted Community Service Award in June.

It should also be noted that O'Rourke had provided The Voice digital RTK documents for some five years prior to April 12.

O'Rourke declined to comment on the city's appeal, including why it was filed in Merrimack Superior Court, not Strafford Superior Court.
To read an earlier story that includes the ombudsman's full decision click here.