State Police FOIA Request

nhpoke

nhpoke

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Mods: This isn't specifically gun related, so if you feel this shouldn't be hear please feel free to move / delete.

This all started in early 2015, with Senate Bill 116. For a bit of history please take a look at This thread on Northeast Shooters.

If you survive that thread skip the next paragraph as you will already understand this information. If not...

SB 116 Was is basically a constitutional Carry bill in NH. As part of public testimony there were both various Chiefs of Police as well as State Police, who admitted, at least in some cases to violating the law (specifically in the time required to issue Pistol and Revolver Licenses). I decided to start researching with the state Police, by requesting information on the numbers of licenses applied for, granted and denied from out of state residents, as well as how long it took to issue a decision.

To investigate this issue I drafted a FOIA request and hand delivered it to the licensing office on March 16 (ignore the date on the document, when I opened it to obfuscate my actual contact information that updated to today). I was out of town the following week, but when I returned home on the 27th I had a letter from Marta Modigliani indicating that it would take her 5 months to analyze what information is subject to disclosure.


DOS%20Response_zpszncxmsrs.jpg


NH RSA 91-a specifically says (emphasis mine):
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. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied. 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. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of governmental records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.
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This is my first time to file an FOIA request, so I don't know exactly what "reasonably necessary" means, but given the rest of 91-a talking about time frames like 5 days, taking 5 month to analyze whether or not this is a valid request seems unreasonable to me. Other opinions?
 
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It's pretty clear that they're trying to use up as much time as possible in "determining" whether to grant or deny in hopes that you will forget about said request.
 
LOL. That's a great idea.

So, thanks. I thought 5 months to "decide" was ridiculous.

Court... Maybe. Maybe not. I've been doing some looking. NH Superior courts seem to be very open to getting these (and by these I mean FOIA requests) scheduled quickly, but it appears as if I should make some attempts at correcting this "administratively" (i.e. with Ms. Modigliani) to start with...
 
First draft at a reply...


March 28, 2015

Dear Ms. Modigliani:

Thank you very much for your letter dated March 23, acknowledging my Freedom of Information Act request, dated March 16, having to do with Out of State Pistol and Revolver Licenses issued by the State of New Hampshire. I very much appreciate that you replied within the reasonable 5 business day limit required by RSA 91-A:4 IV.

I am, however, concerned about the timeline for your evaluation of what information can be properly disclosed under the Right to Know Law.

Part I, Article 8 of the NH constitution reads:
[Art.] 8. [Accountability of Magistrates and Officers; Public’s Right to Know.] All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.

While I do appreciate that RSA 91-A does allow for for agencies to take longer than the mandated 5 business days to provide the information requested, a timeline of 5 months to evaluate what information can be disclosed certainly fails the word “responsive” and its intent as used in Art. 8.

While I lack the expertise of a lawyer, I have, in just a few hours, been able to determine a few things related to what information can be disclosed under the Right to Know or Freedom of Information laws.

First, although the State Police has argued otherwise in the past, the records of the State Police do, generally, fall under the scope of the public’s right to know, as the NH Supreme Court ruled in Lodge v. Knowlton, 118 N.H. 574 (1978). Hopefully we can agree that State Police Records are generally within the scope of Part I, Art. 8.

Other questions related to the public availability of these records would possibly be covered by the so called “Murray Exemption” (Murray v. N.H. Div. of State Police, 154 N.H. 579, 581, 913 A.2d 737) which provides exceptions for the following cases:

  • (A) could reasonably be expected to interfere with enforcement proceedings,
  • (B) would deprive a person of a right to a fair trial or an impartial adjudication,
  • (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
  • (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
  • (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
  • (F) could reasonably be expected to endanger the life or physical safety of any individual....
Which I’m happy to address individually.

(A) could reasonably be expected to interfere with enforcement proceedings.
These certainly are “law enforcement records”, however, the FOIA request that I have sent only deals with past activities (for the calendar years 2013 and 2014) there will be no interference with any active law enforcement proceeding. Test A is not relevant.

(B) would deprive a person of a right to a fair trial or an impartial adjudication
The FOIA request specifically requires that all personally identifiable information (PII) be excluded from any records that are turned over as part of the disclosure. There will be no way to deprive a person of any rights, as there will be no way to identify any individual in the disclosure of these records.

(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy
Again, the request specifically excludes the disclosure of any PII. All information that is disclosed by the state should be anonymous. No exceptions.

(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source
Information about references (as that would also be PII) is specifically excluded from the request. We’re additionally not asking for any information utilized during the investigation of suitability conducted by the State Police or anyone in its employ. I would be happy to extend the exclusion of information to anything that relates to National Security.

(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
We are asking for no information related to how the State Police have arrived at the decision of whether or not to issue a license, but only the resulting decisions and outcome of the investigation.

(F) could reasonably be expected to endanger the life or physical safety of any individual
Again, we wish to specifically exclude any PII related to any individual involved. Any individualized information should be removed from any records disclosed by the state.

The other possible conflict that I am familiar with is RSA 159:6-a, which reads
159:6-a Confidentiality of Licenses. – Notwithstanding the provisions of RSA 91-A:4 or any other provision of law to the contrary, all papers and records, including applications, pertaining to the issuance of licenses pursuant to RSA 159:6 and all licenses issued pursuant to said section are subject to inspection only by law enforcement officials of the state or any political subdivision thereof or of the federal government while in the performance of official duties or upon written consent, for good cause shown, of the superior court in the county where said license was issued.
It is my assertion that 159:6-a is intended to protect the individual rights of persons who have been issued Pistol and Revolver Licenses under section 159:6. As has been mentioned it is my intent as part of this FOIA request to exclude any information which would allow anyone who has applied for a Pistol and Revolver License to be individually identified. Again, for any issued license we are requesting 2 pieces of information. The date that the application was received and the date that the license was issued. Additional information is requested in cases where licenses are not issued or are revoked, however, in cases where licenses are not issued the limitations of 159:6-a do not apply.

Unless I hear otherwise from you, I will expect a determination as to what information can be disclosed and when I can expect that information to be delivered within the federally mandated 20 business days unless you can provide a specific example as to why this specific request is for some reason considered unusual circumstances. If there are specific pieces of information that you believe will take longer than the federally mandated 20 business days I would be happy to discuss with you the possibility of delivering the entirety of information requested in an incremental manner.

I appreciate your prompt response.

 
nhpoke said:
First draft at a reply...
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Seems pretty well organized and thought out. Unfortunately the content will likely be ignored. Still definitely send it.

I would however emphasis that her letter didn't state she would release the records in 5 months, only that it would take 5 months to make a determination what could be released. That is total BS. Five months to make that determination sounds far from reasonable.

Maybe modify your request of information to a more narrow timeframe instead of all of 2013-2014, in order to expedite things. If you do this, there is much less information for her to drag her feet over, and 5 months would be totally obviously unreasonable. That way either it is denied or you get your information sooner. If denied, it starts the appeal (if you choose) sooner. If you get it, you can request more information later AND have precedent for both how long it takes and that the information is subject to be released.

If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.
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I've had experience in dealing with FOIA and it's not that simple, and not that cut and dried. It's less conspiratorial than it is bureaucratic, has to be staffed, revised and meet certain parameters all of which take time.

Again, because most of you really don't understand how the system works, confuse the way you think things should work with the way things are, you are willing to jump to conclusions which may not be accurate. Frankly responding to FOIAs are a royal PITA because of what you can include and have to exclude, not because of something that is covered up by how frequently and poorly the request is written.

My suggestion is that it never hurts to see where they are at with this but be cool and calm about it. Might be some poor schmuck like me on the other end dealing with a couple of attorneys telling him what can and can't be included based on the letter of the law.
 
You are right, though it is a bit concerning when she said it would take 5 months just to make a determination what could be released, not 5 months to gather, redact, and otherwise review the documents to make sure it doesn't violate privacy acts. Two different things.
 
SemiAutoSam said:
A small FYI. its not called a FOIA as that is a federal act...Its called a Public Information act request.
http://www.foia.gov/

https://www.sec.state.ma.us/pre/prepdf/guide.pdf
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Point is well taken, regardless of details of what state it is in. Correct term in NH seems to be the "Right to Know" laws. I'll update and try to be consistent going forward.

Bonesinium said:
Seems pretty well organized and thought out. Unfortunately the content will likely be ignored. Still definitely send it.

I would however emphasis that her letter didn't state she would release the records in 5 months, only that it would take 5 months to make a determination what could be released. That is total BS. Five months to make that determination sounds far from reasonable.
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I did try to mention that. Sounds like I need to make that point stronger. Thanks for the feedback.

Bonesinium said:
Maybe modify your request of information to a more narrow timeframe instead of all of 2013-2014, in order to expedite things. If you do this, there is much less information for her to drag her feet over, and 5 months would be totally obviously unreasonable. That way either it is denied or you get your information sooner. If denied, it starts the appeal (if you choose) sooner. If you get it, you can request more information later AND have precedent for both how long it takes and that the information is subject to be released.
Click to expand...

Valid point. I'm trying to accomplish a number of things with this. Hindsight being 20/20 and all I would have been less general with the data that I'm looking for, and likely would have started with local PD rather than the state police. The idea behind asking for 2 years of data is to collect information on the fiscal note associated with SB116. There is evidence that there may be less than the implied 900 license / year granted, and I wanted to collect enough information to establish that. Possible error on my part.

mark056 said:
I've had experience in dealing with FOIA and it's not that simple, and not that cut and dried. It's less conspiratorial than it is bureaucratic, has to be staffed, revised and meet certain parameters all of which take time.

Again, because most of you really don't understand how the system works, confuse the way you think things should work with the way things are, you are willing to jump to conclusions which may not be accurate. Frankly responding to FOIAs are a royal PITA because of what you can include and have to exclude, not because of something that is covered up by how frequently and poorly the request is written.

My suggestion is that it never hurts to see where they are at with this but be cool and calm about it. Might be some poor schmuck like me on the other end dealing with a couple of attorneys telling him what can and can't be included based on the letter of the law.
Click to expand...

At this point I am dealing with the attorney. Ms. Modigliani is council for the NH State Police. Right now she is saying that it will be 5 months before they can figure out whether or not to honor the request, not before they can fulfill it. For fulfilling the request no timeline has been provided.

PennyPincher said:
I would just go direct to court and represent yourself
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I did consider this... I then played this out in my head a bit. I take Ms. Modigliani to Superior court. Judge says "Why can't this be done in a month, rather than in 5?" Ms. Modigliani says "it can. The plaintiff never asked." I'm trying to eliminate simple things first. It's likely not the most expedient way to get to a decision, but unfortunately filing with superior court isn't free either. I'm also trying to show that I'm willing to be reasonable with the requirements of the request and negotiating what can / can't be delivered (show of working in good faith), but also trying to set expectations around what I think is required to comply with the law.

More feedback welcome. Thanks to everyone so far.
 
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Please keep us posted on the progress of this. My non-resident application was mailed March 3rd. Today is March 29th. 29-3=26. 26 is more than 14. Violation. Just try that argument with an overdue inspection sticker more than 10 days after registration. If they think the legislature passes suggestions rather than laws, what do we need any of them for?
 
Unfortunately nothing I do will help you "directly". As a citizen of the state I can only apologize for the State Police behavior in this case.

I completely agree with your stance on this. If the deadline is meaningless, why is it there at all? Can I assume that all other deadlines defined in the RSA's are also meaningless?

I hope to deliver a response to Ms. Modigliani this week. We'll see how my schedule works out.
 
mark056 said:
Frankly responding to FOIAs are a royal PITA because of what you can include and have to exclude, not because of something that is covered up by how frequently and poorly the request is written.
Click to expand...

All the more reason to bury the bureaurats with under more FOIA requests.
 
M1911 said:
All the more reason to bury the bureaurats with under more FOIA requests.
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There was a political dissident in a Soviet gulag who came up with an idea to lodge a complaint about everything and to have every other prisoner do the same. Soviet regulations required a response to each complaint. Eventually the bureaucracy regarding the gulags ground to a halt as they spent all their time responding to the complaints. They eventually got so sick of that dissidents antics that they deported him if I recall the story correctly.

Grinding the machine to a halt works in our favor in the long run.
 
Been playing phone tag with the local CoP. He wants to make sure that he's collecting what I'm expecting before going through all of the data. I hope to see a "sample" dataset tomorrow.
 
nhpoke said:
Been playing phone tag with the local CoP. He wants to make sure that he's collecting what I'm expecting before going through all of the data. I hope to see a "sample" dataset tomorrow.
Click to expand...

Sounds like progress and someone making a legitimate effort to comply.
 
nhpoke said:
Been playing phone tag with the local CoP. He wants to make sure that he's collecting what I'm expecting before going through all of the data. I hope to see a "sample" dataset tomorrow.
Click to expand...

Bonesinium said:
Sounds like progress and someone making a legitimate effort to comply.
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Yea, he has already done better than the DoS. If he follows through he should definitely be thanked.
 
Local CoP has been extremely pleasant to deal with on this so far.

If I can find something that will work for him I'll try some other local towns as well.
 
Tried to drop of the RTK request with Epsom PD. They were closed... (like I didn't get anyone to answer the "bell" outside the office).
 

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