CONCORD, N.H. — When Louise Spencer requested information from the governor’s office, she expected to get it because of New Hampshire’s open records laws.
But the governor’s office denied Spencer’s request, and more than three years later, she still hasn’t gotten the e-mails she had asked for. Now she knows it’s unlikely she ever will; the governor argues his office is exempt from transparency laws, and some of the records she requested had already been destroyed by the time she asked to see them.
According to documents obtained by the Globe, Governor Chris Sununu’s e-mail and document retention and disposal policy directs staffers to delete e-mails, texts, documents, drafts, and memos within 30 days unless they “may potentially be responsive to a pending Right to Know request.”
“For purposes of maintaining efficiency and economy, emails should be retained for no longer than 30 days,” the policy reads. “A hard or digital copy of all final drafts of official business documents (memos, statements, executive orders, etc.) produced by the office should be retained for no longer than 30 days unless a longer retention period is necessary for either historical or reference purposes.” The policy leaves it up to the drafter to make that determination.
Questions about whether something should be deleted or not “may be directed to Legal Counsel and, if necessary, the Chief of Staff.”
The problem, as Spencer and advocates of government transparency see it, is that by the time someone requests certain e-mails or documents, they may have already been deleted or discarded. They believe the Governor’s policy of deleting correspondence and records within 30 days is illegal — and plan to challenge it in court.
“We were shocked to discover this policy where the governor’s office explicitly recommends that emails be deleted within 30 days,” Spencer said. Once deleted, she added, “there’s no way the public can see those documents.”
The policy does not require employees to keep records for any amount of time, although it does instruct them to keep records that have already been requested. That applies to e-mails, text messages, and hard documents. But as Spencer points out, that means troves of records can be destroyed before anyone even realizes they exist, let alone requests them.
The policy requires legal counsel and the chief of staff to OK destroying documents signed by the Governor, and it says that e-mails or documents with constituent casework or invitations to the governor “should be retained until they are obsolete.” The policy does not provide guidance about when that occurs. Text messages, drafts, and notes can be deleted at any time “and may not be retained for longer than 30 days.”
What could be destroyed under the policy? “Pretty much anything” according to Paul Twomey, a progressive lawyer. “Right now I could go to the governor and say I’ll donate $100 million to your campaign for next office if you do ‘Y’. There’d be nothing to stop that from getting destroyed before anybody could find out.”
Twomey represented Spencer when she sued the governor for access to e-mails, a saga that began in 2019. Sununu was expected to sign an independent redistricting committee into law, but ended up vetoing it, a decision praised by former Wisconsin Governor Scott Walker.
Spencer, who founded a grassroots advocacy group in Concord called the Kent Street Coalition, wanted to see e-mails between the governor’s staff and employees of the National Republican Redistricting Trust, a group headed by Walker. A Merrimack Superior Court judge ruled in the governor’s favor, determining that e-mails from before the veto fell under executive privilege, while e-mails from after the veto weren’t deemed government records.
Twomey and Spencer appealed to the N.H. Supreme court, which deadlocked two-to-two in a February order over what records the governor’s office is required to turn over to the public. Chief Justice Gordon MacDonald, who was attorney general at the time of the e-mails, recused himself. That means the lower court’s decision stands.
Now, Twomey and Spencer are planning to mount a legal challenge against the 30-day destruction policy.
“These are all public records that we’re talking about to begin with,” said Twomey. “They really belong to the public. They don’t belong to the governor or to the staff. They create these records on time when they’re being paid by the people of the state. The people of the state have a right to a complete history… and they have a right to have records preserved.”
But the legal path forward for Twomey and Spencer could be an uphill battle. Bill Chapman, an attorney with Orr and Reno, told the Globe in an e-mail that a court would likely be reluctant to rule on the claim that 30 days is an unreasonably short retention period. He said it would raise a separation of powers question, with the judicial branch ruling on an executive branch policy and could be seen as court micromanagement of the governor’s office.
Two parts of New Hampshire law require the government to be open, responsive, and accountable to the public: RSA 91-A, or the Right to Know law, and Part 1 Article 8 of the state’s constitution. Under the Right to Know law, the public is supposed to have access to government meetings and records, with some exceptions for the privacy of students and personnel, for example. Part 1 Article 8 says that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”
Twomey said in addition to challenging the legality of the Governor’s policy, he plans to push for legislation establishing an enforceable retention schedule for the governor’s records. Currently there are no laws addressing how long the governor must keep records created by him or his office.
In contrast to the governor’s 30-day destruction policy, laws set minimums for how long municipalities around the state have to keep records. Some records, like those pertaining to annual reports and budgets, have to be kept permanently. Towns must retain bank deposit slips for at least six years. Some kinds of correspondence must be kept for at least a year.
A spokesperson for the Governor’s Office declined to make its legal counsel available to discuss the policy. “It is the long-standing position of the New Hampshire Department of Justice that RSA 91-A does not apply to the Governor’s Office, however in the interest of transparency, the Governor’s Office does respond to requests as soon as possible,” Brandon Pratt, a spokesperson for the governor’s office, told the Globe in an e-mail.
He said any internal policies responding to Right to Know requests are covered by executive privilege, the power the president and other officials in the executive branch have to withhold some confidential communication.
A spokesperson for the Department of Justice said the Attorney General’s office reviewed the policy before it was implemented in 2017 and determined it complied with the law.
“Government record retention requirements vary based upon the record in question, including whether there is an official need to continue to access and use the record or whether it is of historical significance,” said Mike Garrity, director of communications for the Department of Justice, in a written statement. “Offices and agencies of the State of New Hampshire are expected to adopt record retention policies that are consistent with such purposes. Such policies are consistent with the State’s obligations under Part 1 Article 8 and RSA 91-A.”
But Twomey believes the policy runs afoul of Part 1 Article 8 of the constitution. He’s not the only New Hampshire attorney who thinks so.
“The whole policy smacks in the face of what the Right to Know and Part 1 Article 8 of the New Hampshire constitution calls for, which is open, responsive, and accountable government,” said Greg Sullivan, the president of the New England First Amendment Coalition. “Destroying records with such rapidity just seems to be counter to both the spirit and the letter of the law.”
Sullivan said such a policy does not promote the core goals of democracy.
Former New Hampshire governor John Lynch said no policy on destruction of documents or records was in place during his tenure, which ran from 2005 to 2013.
“We never did that,” he told the Globe, when asked whether his administration had a policy comparable to Sununu’s. “I think you should be open. It’s taxpayer dollars that are funding the office,” he said.
But Sununu isn’t the first New Hampshire governor to claim executive privilege. Former governor Maggie Hassan, now a US senator, made the same argument in 2015 when denying the Concord Monitor’s request for proposals from state department heads about making their agencies more effective.
Asked whether Hassan’s office had a 30-day destruction policy while she was governor from 2013 to 2017, a spokesperson said, “There was no set policy, other than staff being informed to retain documents subject to Right to Know requests.”
Amanda Gokee can be reached at firstname.lastname@example.org. Follow her on Twitter @amanda_gokee.