Dascoulias v. Town of Sanbornton, Doc. No. 211-2005-E-216 (Belknap Super. Ct., February 22, 2006) (Smukler, J.)

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Peter Dascoulias and Donna Dascoulias


Town of Sanbornton, et al.

No. 05-E-216


The petitioners, Peter Dascoulias and Donna Dascoulias, assert, that the respondents have violated RSA 91-A (the right-to-know law) and seek an order enforcing the statute and awarding costs. The respondents filed a motion to dismiss. The court heard argument on February 16, 2006. Because the petitioners failed to allege a violation of the statute warranting a judicial remedy, the respondents' motion is GRANTED.

In their petition, the petitioners seek a finding that the respondents failed to adhere to the requirements of RSA 91-A by: (1) refusing to provide assessing books showing how the assessment of their property was calculated; (2) refusing to answer correspondence requesting information; and (3) refusing to allow the petitioners to have a person of their choice present when they met with the respondents' agent. They also assert that the respondents violated the law by refusing to allow them to ask questions at a public meeting. The respondents' initially seek to dismiss the claims of Donna Dascoulias because, according to the respondents, the petition contains no allegation that Ms. Dascoulias was a party to any RSA 91-A requests. The respondents also assert that the petitioners' allegations with respect to their ability to speak at a public meeting and their ability to bring a person of their choice to meeting with the respondents' agent fails to state [2] a RSA 91-A claim. Finally, the respondents assert that they timely gave all information in their possession to the petitioners and thereby complied with the statute.

In ruling on a motion to dismiss, the court must assume that all sufficiently pleaded facts are true and can be proved, construing all inferences in the light most favorable to the petitioners. Bohan v. Ritzo, 141 N.H. 210, 213 (1996) (citation omitted). The court must then determine whether those facts are "reasonably susceptible of a construction that would permit recovery." Id. at 212, quoting Wenners v. Great State Beverages, 140 N.H. 100, 102 (1995), cert. denied, 516 U.S. 1119 (1996). This determination requires the court to test the facts contained in the petition against applicable law. Jay Edwards, Inc. v. Baker, 130 N.H. 41, 45 (1987). A court "need not accept statements in the complaint which are merely conclusions of law." Mt. Springs Water Co., Inc. v. Mt. Lakes Vill. Dist., 126 N.H. 199, 201 (1985) (citation omitted). With this standard in mind, the court will address each of parties' arguments in turn.

The respondents initially assert that the claim of petitioner Donna Dascoulias should be dismissed because she did not make any RSA 91-A requests. The court disagrees. The petition, read in the light most favorable to the petitioners, reflects that the RSA 91-A requests were jointly made by both petitioners. Therefore it states a claim on behalf of Donna Dascoulias that is susceptible to relief. The respondents' motion is DENIED on this ground.

The respondents also assert that the petition fails to state a claim when it complains that the petitioners were deprived of an opportunity to speak. The court agrees. RSA 91-A:2 requires that certain meetings be open to the public. It does not require the public body to entertain comment. Cf. DHB v. Town of Pembroke, 152 N.H. 314, 321 (2005) (deciding on grounds other than RSA 91-A that a planning board applicant does not have a right to be heard at a public meeting). As the petitioners failed to allege that the respondents held a meeting, as defined at RSA 91-A:2, [3] I that was not open to the public, they have failed to state a claim. Accordingly, the respondents' motion to dismiss on this ground is GRANTED.

The respondents next argue that the petition fails to state a claim when it complains that an agent of the respondents would not allow the petitioners to bring an expert into a meeting. As addressed above, any member of the public has a right to attend a meeting of a public body. RSA 91-A:2, I defines a meeting as "the convening of a quorum of the membership of a public body ... to discuss or act upon a matter or matters over which the public body has supervision, control, jurisdiction or advisory power." In this case, the petitioners assert that they asked to meet with an agent of the respondents to discuss the revaluation of their property. The agent agreed, but refused to meet with their expert. As the meeting with the expert was not "the convening of a quorum of the membership of a public body," there is no RSA 91-A violation in the exclusion of an individual. Thus, the respondents are correct in their assertion that the petitioners have failed to state a claim. Their motion to dismiss on this ground is GRANTED.

Last, the respondents assert that the petitioners have failed to state a cause of action because they timely gave them all material in their possession. The petitioners disagree, claiming in effect that information in the possession of Vision Appraisal Technology ("Vision")--an entity retained by the respondents to assist with the revaluation of property assessments--is constructively in the possession of the respondents. The court disagrees. First, the petitioners have not alleged that Vision is anything other than a private entity retained by the respondents. Compare Prof'l. Firefighters of N.H. v. HealthTrust, 151 N.H. 501 (2004) (certain quasi-public entities are subject to the right-to-know law). Second, RSA 91-A:5, IX exempts from the statutory disclosure requirement "[p]reliminary drafts, notes, and memoranda and other documents not in their final form and not disclosed, circulated, or available to a quorum or a majority of [the public body]." [4] It is not disputed that the respondents were not in possession of Vision information until November of 2005. The respondents promptly forwarded those materials to the petitioners upon receipt. See e.g. Respondent's Exh. 1 at 19 (Letter of November 28, 2005). Thus, the petitioners have failed to allege sufficient facts to support a finding that the respondents violated RSA 91-A.

The court understands that the information provided does not have the detail requested by the petitioners. That detail does not exist, however, in the materials thus far supplied by Vision to the respondents. The petitioners have initiated a separate tax abatement case, which may eventually be brought before the board of tax and land appeals. During the February 16, 2006 argument, the respondents agreed that the petitioners are entitled to the information they seek through discovery in that proceeding. The petitioners' representative conceded this point, but claimed that RSA 91-A is an alternative means of obtaining the information. The court understands that the public is entitled to information as provided by the right-to-know law. The petitioners as members of the public have obtained that information. They seek additional information available to them as private litigants. The court declines the petitioners' invitation to expand the scope of the right-to-know law simply for the purpose of accommodating otherwise available discovery in a private action.

Based on the foregoing, the motion to dismiss the claim by Donna Dascoulias is DENIED. The respondents' motion to dismiss is GRANTED on all remaining claims.


Date: February 22, 2006    /s/