Public Records Laws and Social Media Retention in
New Hampshire

Excerpt From New Hampshire Right to Know Law

91-A:1-a Definitions. – In this chapter:
III. “Governmental records” means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term “governmental records” includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term “governmental records” shall also include the term “public records.”

Excerpt From Attorney General Guidance

A. What is a Governmental Record?

“Governmental records” means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term “governmental records” includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term “governmental records” also shall include the term “public records.” RSA 91-A:1-a, III.

Governmental records that are provided electronically may contain metadata that could be accessible to the requesting party. Metadata is data imbedded in electronic documents and can include information such as your organization and/or computer name, comments, template information, hidden text or cells, the name of the network server or hard disk where the document is saved, and the names of previous document authors. New Hampshire Courts have not ruled on whether such information is subject to disclosure under RSA 91-A. At least one Federal District Court has determined that, with respect to the Freedom of Information Act, certain metadata is an intrinsic part of an electronic record and that “metadata maintained by the agency as part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily producible.’” National Day Laborer Organizing Network, et al., Plaintiffs, v. United States Immigration and Customs Enforcement Agency, et al., Defendants, No. 10 Civ. 3488 (SAS). Questions about metadata should be reviewed with legal counsel.

Given the proliferation of electronic records, public bodies and public agencies should review the following with legal counsel: their computer, e-mail, instant message, phone and other system use; the sections of their employee handbooks covering e-mail, instant message, phone and web usage, including but not limited to social media usage such as Twitter, YouTube, Facebook; and record retention policies and practices.

Excerpt from City of Lebanon Social Media Policy

13. The City shall maintain records of its social media sites for a minimum of one year pursuant to NHRSA 33-A:3-a (XXV). The Department maintaining the platform is responsible for responding completely and accurately to any public records request for public records on social media. Wherever possible, social media networks shall clearly indicate that any articles and any other content posted or submitted for posting are subject to public disclosure.

17. Any content or posts removed based on these guidelines must be retained, including the time, date, and identify of the author when available.

a. Any removed content shall be printed out in hard copy as it appears on the social media site before it is removed.

b. Prior to the removal of any content or posts, the removing party shall create a removal record. The removal record shall include: i. A statement explaining why the content or post was removed, including which provision of the Guidelines was violated; ii. Who removed the content or post; iii. When the content or post was removed; and iv. Any other information relevant to the removal.