Rochester's appeal of RTK ombudsman decision front and center at Dover court

A partial listing of today's docket, City of Rochester Attr. Terence O'Rourke,left, and Rochester Voice editor and publisher Harrison Thorp (Courtesy images)

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 Hearing on the Merits regarding the City of Rochester's appeal of the Right to Know Ombudsman's November decision that deferred to the legislature or judiciary what "cit8izen" means in the state's Right to Know statute will be heard today before Judge Daniel E. Will in Strafford Superior Court.
The Rochester Voice in August filed the RTK case with the RTK Ombudsman's Office because the City of Rochester in April of 2023 said it would be ending digital delivery of RTK documents to The Rochester Voice because its editor and publisher, Harrison Thorp, are domiciled in in Maine.
While Thorp filed his complaint with the RTK ombudsman as The Rochester Voice, Rochester City Attorney Terence O'Rourke filed his appeal against Thorp personally.
Soon after the decision by Ombudsman Attr. Thomas Kehr, the City of Rochester appealed his decision to Merrimack Superior Court, where Thorp and O'Rourke attended a hearing presided over by Judge Brian T. Tucker in January.
During the hearing O'Rourke made the motion to change the venue to Strafford Superior Court, and Thorp echoed his support for the move since the Concord court is roughly double the distance of traveling to Dover.
On Nov. 6 Kehr ruled that his office was unable to render a ruling on the meaning of the word "citizen" as used in New Hampshire's Right to Know statute, 91-A.
"A host of legal questions, some of potentially constitutional magnitude, underly (sic) the core issued identified in this case," he wrote. "As a matter of institutional authority and the sound structure of government, the RKO 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."
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, 2023, 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 a few months before he resigned 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 last June.
It should also be noted that O'Rourke had provided The Voice digital RTK documents for some five years prior to April 12, 2023, denial.