City's Right to Know appeal draws scathing rebuke from Superior Court judge

Inset photo, Strafford Superior Court Judge Daniel E. Will (Rochester Voice file photo)

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.

DOVER - A Strafford Superior Court judge on Tuesday handed the City of Rochester a scathing rebuke on its appeal of the state's Right to Know Ombudsman's decision handed down in November that deferred all remedies to the legislature or judiciary.
In an 11-page order Strafford Superior Court Judge Daniel E. Will chastised the city for its crabbed argument that because the owner of The Rochester Voice lives in Maine, they are not allowed the Right to Know protections of 91-A, the statute that regulates Right to Know provisions.
"(The court) is skeptical that (Rochester's intended) result was intended by the General Court when it considered the language of RSA 91-A," Will noted in his decision. "The City's construction would create logical inconsistencies within the Right to Know law that further augur against the City's narrow construction of 'citizen.'"
The word "citizen" never appears in New Hampshire's Right to Know law and only appears once in the 91-A statute, but during a hearing on May 2 in front of Judge Will in Strafford Superior Court, City of Rochester Attorney Terence O'Rourke argued that the protections of 91-A only apply to New Hampshire citizens.
Since April of 2023 the City of Rochester has denied The Rochester Voice access to digital requests for government documents. In some cases they have simply ignored Rochester Voice Right to Know requests.
Recently The Rochester Voice emailed O'Rourke requesting a convenient time when we could travel to a city department to review Right to Know documents. We were simply ignored.
Judge Will further stated that the value of The Rochester Voice to Rochester is viable and sound.
"Although Mr. Thorp is neither a citizen nor a resident of the State of New Hampshire, the respondent in this case, the Rochester Voice (as the Ombudsman found and the City does not challenge), is a news organization with a mailing address in New Hampshire and a tradename registered in New Hampshire," Will wrote. "And the Rochester Voice has covered issues of public interest concerning the City of Rochester since as early as 2017, and serves, as a practical matter, to advance the constitutional ends of open and responsive government and the parallel purpose of the Right to Know law."
In fact, Judge Will found that The Rochester Voice was, indeed, a party "aggrieved" by the City of Rochester's actions.
"From the conclusion that The Rochester Voice is properly viewed as eligible to make public records requests flows the further conclusion that the Rochester Voice counts as a "party aggrieved" by the City's refusal to honor the records request at issue," he wrote.
Finally, and of vital importance to Right to Know advocates, pushback from the New Hampshire Municipal Association and cities and towns across the state that cry foul over the amount of time they spend on Right to Know requests is immaterial to fostering an open and accountable government and freedom of the press.
"One final note concerns the scope of this appeal. At oral argument, the City (of Rochester) identified practical concerns and difficulties from lengthy records requests by, for example, persons from outside the United States or companies from across the country," Will concluded. "Whatever the merits of Rochester's concerns, the Court cannot, without legislative guidance, tailor the otherwise broad language of the statute and its broad purpose to ease the government's asserted compliance burden."