We publish, in full, the finding of the Merrimack County Superior Court that Attorney General Joseph Foster and his office were in violation of New Hampshire’s Right to Know Law. ~Publis
Publisher’s note: For more information on New Hampshire’s Right to Know Law, including additional case law, visit Right to Know New Hampshire
Thomas Reid v. Joseph Foster, N.H. Attorney General, Doc. No. 217-2014-CV-588 (2015) Merrimack County Superior Court
THE STATE OF NEW HAMPSHIRE
MERRIMACK, SS. SUPERIOR COURT
Thomas Reid
v.
Joseph Foster, N.H. Attorney General
No. 2014-CV-588
ORDER
The plaintiff, Thomas Reid, brought this action against the defendant, Joseph Foster, in his capacity as New Hampshire Attorney General, asserting violations under RSA chapter 91-A (the “Right-to-Know law”) and seeking documents. The documents sought arose from an investigation by the Attorney General’s Office into the conduct of former Rockingham County Attorney James Reams. The defendant filed a motion to dismiss. The court heard argument on October 27, 2014 and November 14, 2014, and received supplemental filings from both parties. Because the plaintiff has sustained his burden of showing RSA 91-A violations but has not sustained his burden of showing bad faith, his requests for relief are GRANTED in part and DENIED in part.
On November 6, 2013, the New Hampshire Attorney General suspended Rockingham County Attorney James Reams. At the same time, the plaintiff, who was the deputy Rockingham County Attorney, was placed on paid suspension. The attorney general subsequently asked the superior court to appoint an interim county attorney for the period of time while the elected county attorney was unable to discharge the duties of his office
On November 7, 2013, the defendant began an exhaustive search of the Rockingham County Attorney’s Office, and interviewed present and former employees. The defendant also [2] searched the plaintiff’s office and seized personal items, documents, and papers. On January 17, 2014, the plaintiff resigned from his position. On March 11, 2014, the defendant filed a civil complaint for removal of the Rockingham County Attorney. The matter was ultimately settled by agreement June 18, 2014.
The plaintiff sent Right-to-Know requests to the defendant on April 17, 2014 and April 24, 2014. The defendant responded to these requests within the RSA 91-A:4, IV five-day period, indicating that the plaintiff’s request would require 30 days to process. As of May 24, 2014, the plaintiff had not received any further communication from the defendant. Indeed, as the defendant concedes, the plaintiff should have received further communication on or about May 24, 2014 and “the lack of a follow-up letter to [the plaintiff] was an unintentional oversight . . . .” Def.’s Mot. to Dismiss at 9. Roughly seven months later, the defendant still had not sent the requested information to the plaintiff. The instant action followed.
The plaintiff asserts that the defendant violated RSA 91-A and seeks relief under the statutory scheme. The defendant moved to dismiss, arguing that the defendant had not improperly withheld materials at any point or failed to produce materials within a reasonably necessary time frame. The court will address the parties’ arguments in turn.
This case requires the court to interpret provisions of the Right-to-Know law. When interpreting a statute, the court must “first look to the plain meaning of the words used . . . and will consider legislative history only if the statutory language is ambiguous.” WMUR Channel Nine v. N.H. Dep’t of Fish & Game, 154 N.H. 46, 48 (2006). “[The court] resolves[s] questions regarding the Right-to-Know law with a view of providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents.” Id.
[3] As a threshold matter, the court must determine whether the defendant violated the Right-to-Know law when it failed to respond to the plaintiff’s requests in a timely fashion.
The time period for responding to a Right-to-Know request is absolute. The statute mandates that an agency make public records available when they are immediately available for release, otherwise, it must within five business days of the Right-to-Know request: (1) make the records available; (2) deny the request in writing with reasons; or (3) acknowledge receipt of the request in writing with a statement of the time reasonably necessary to determine whether the request will be granted or denied.
ATV Watch v. N.H. Dept. of Resources & Econ. Dev., 155 N.H. 434, 440–41 (2007); see also RSA 91-A:4, IV. Here, the plaintiff filed Right-to-Know requests on April 17, 2014 and April 24, 2014. The defendant responded to these requests within the mandated five-day period. See RSA 91-A:4, IV. The defendant stated that the plaintiff would receive a further response within 30 days; however, as the defendant conceded, he failed to follow-up within the specified 30 days. While the defendant asserts that this was an “unintentional oversight,” the lack of a follow-up with the plaintiff’s request nevertheless represents a violation under the plain language of the statutory scheme. As a result, the court concludes that the defendant violated RSA 91-A when he failed to respond to the plaintiff’s request in a timely manner.
Having determined that the defendant violated the Right-to-Know law, the court must determine what remedies are appropriate. In his complaint, the plaintiff seeks: (1) injunctive relief, pursuant to RSA 91-A:7; (2) a civil penalty of not less than $250 and not more than $2,000 due to the defendant’s alleged bad faith; and (3) fees and costs associated with bringing this action. The defendant concedes that the plaintiff is due his costs, but contests the remaining requests. For the reasons that follow, the court awards limited injunctive relief and costs.
The plaintiff first asserts that he is entitled to injunctive relief, pursuant to RSA 91-A:7. Specifically, the plaintiff requests that this court order the defendant to produce immediately the information requested by the plaintiff. As of December 20, 2014, the defendant represented that [4] the first phase of rolling production has been made available, consisting of 2,594 pages of documents. Def.’s Status Report. Of these 2594 pages, 719 pages were not sent or charged to the plaintiff as they are either outside the scope of his request or were fully redacted. Id. Thus, the defendant has provided the plaintiff with a total of 1,293 pages of the requested documentation. To the extent the plaintiff’s request encompasses these 1,293 pages, the production of the documents renders the issue moot.
The defendant has also provided the court with documents for in camera review with proposed redactions. The parties assert that an in camera review of the submitted documents is necessary to determine whether the proposed redactions fall under RSA 9l-A:5 exemptions. The court declines this invitation. “While an in camera review or preparation of a Vaughn index may be sufficient to justify an agency’s refusal to disclose, such measures are also not necessarily required.” 38 Endicott Street North, LLC v. State Fire Marshall, N.H. Div. of Fire Safety, 163 N.H. 656, 668 (2012), quoting Murray v. N.H. Div. of State Police, 154 N.H. 579, 583 (2006). “When the agency has sustained its burden of proof by affidavit or testimony, the trial court need not undertake an in camera inspection or order a Vaughn index.” Id. at669 (citation omitted). Here, the court believes that a thorough affidavit would be sufficient in the first instance to support the redactions. Thus, the request for injunctive relief is GRANTED to the extent that the defendant must produce an affidavit supporting his proposed redactions. Upon review of this affidavit, the court will determine whether the defendant has sustained his burden of proof.
The defendant next seeks a civil penalty of not less than $250 and not more than $2,000 due to the defendant’s “dilatory” tactics in responding to his request. See Compl. ¶ 110. Under RSA 91-A:8, IV, “[i]f the court finds that an officer, employer, or other official of a public body or public agency has violated any provision of this chapter in bad faith, the court shall impose [5] against such person a civil penalty of not less than $250 and not more than $2,000.” Here, the court does not find that the defendant acted in bad faith when he failed to provide a timely response to the plaintiff’s request. Because the bad faith element is necessary to support the imposition of a civil penalty, the court cannot impose such a penalty. Accordingly, the plaintiff’s request is DENIED.
Finally, the plaintiff asks the court for an award of the fees and costs associated with bringing this action. RSA 91-A:8, I provides:
If any public body or public agency or officer, employee, or other official thereof, violates any provisions of this chapter, such public body or public agency shall be liable for reasonable attorney’s fees and costs incurred in a lawsuit under this chapter, provided that the court finds that such lawsuit was necessary in order to enforce compliance with the provisions of this chapter or to address a purposeful violation of this chapter. Fees shall not be awarded unless the court finds that the public body, public agency, or person knew or should have known that the conduct engaged in was in violation of this chapter or if the parties, by agreement, provide that no such fees shall be paid.
As indicated above, the defendant has not complied with the requirements of the Right-to-Know law. Indeed, he concedes that the plaintiff is entitled to his costs. Because the court is satisfied that the lawsuit was necessary in order to enforce compliance, it agrees. As a result, the plaintiff’s request is GRANTED. Indeed, based on this finding, the court construes broadly the costs involved; not only is the plaintiff entitled to recover the court’s entry fee, but also travel, copying and similar costs. The court, however, cannot award attorney’s fees because the plaintiff elected to appear pro se. See Aronson v. United States Dep’t of Housing & Urban Dev., 866 F.2d 1, 5 (1st Cir. 1989). Upon the submission of plaintiff’s affidavit of the costs associated with bringing this action, the court will issue a final award.
Based on the foregoing, the court finds and rules that the defendant has violated provisions of the Right-to-Know law. In light of this ruling, the plaintiff’s request for injunctive relief is GRANTED in part and his request for an award of costs is GRANTED. Because the court [6] does not believe that the defendant acted in bad faith and because the plaintiff appeared pro se, the plaintiff’s request for imposition of civil penalties and an award of attorney’s fees is DENIED.
So ORDERED.
