Kirkpatrick v. SAU 72, Doc. No. 211-2013-CV-034 (Belknap Super. Ct., March 18, 2013) (O'Neill, J.)

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Douglas Kirkpatrick


SAU #72-Alton and Bill Lander

Docket No. 13-CV-034


Hearing held (2/12/13) on the petitioner's Petition for Right to Know (filed 1/28/13), the respondent's Objection to same (filed 2/12/13), and the respondent's Motion for Attorney's Fees (filed 2/12/13). Subsequent to review, the Court renders the following determination(s).

By way of brief background, the petitioner, Douglas Kirkpatrick, filed a Petition for Right to Know against the respondents, SAU #72-Alton ("SAU") and Bill Lander ("Lander"), regarding the Alton Central School Survey. The respondents object to the Petition and request attorney's fees.


The Court finds the following facts for the purposes of this Order. In June 2012, the SAU contracted with the University of New Hampshire Survey Center ("Survey Center") to conduct a survey of Alton residents regarding potential renovations to Alton Central School. Those who chose to respond to the survey were directed to submit their response to the Survey Center. According to the language of the survey, the Survey Center compiled the responses to ensure confidentiality. (Resp'ts' Obj., Ex. B.) The Survey Center then generated a report, detailing the results of the survey.

[2] On November 13, 2012, the petitioner made a request to the respondents for copies of the completed surveys. On November 14, 2012. Lander informed the petitioner via letter that the Survey Center was in sole possession of the completed surveys and despite Lander's request, refused to provide individual data. (Def's Ex. A.) On December 26, 2012, Lander emailed the petitioner to inquire whether the Survey Center made contact with him regarding his request. (Def's Ex. C.) Thereafter, on January 8, 2013, the director of the Survey Center contacted the petitioner via letter to notify him of its opposition to providing the completed surveys, due to concerns about confidentiality raised by the university's legal counsel. (Res'ts' Obj., Ex. D.) The petitioner then emailed Lander on January 10, 2013, contending that Lander's November 14, 2012 letter failed to cite the section of "Chapter 91-A under which [Lander is] denying the people's Right to Know." (Def's Ex. B.) Lander responded that same day, clarifying that the Survey Center, not the respondents, were refusing to provide the surveys and reiterated that the respondents were not in possession of the surveys. (Def.'s Ex. B.) On January 28, 2013, the petitioner filed the underlying Petition. Thereafter, on February 7, 2013, counsel for the respondents sent a letter to the petitioner explaining that the records requested are not within the possession, custody, or control of the SAU and requested that the petitioner withdraw his Petition. (Resp'ts' Obj., Ex. E.) Based upon the representations of respondents' counsel, the parties met during the week prior to the hearing on this matter and once again reiterated that the respondents were not in possession of the requested records.

Petition for Right to Know

The petitioner argues the tax payers of Alton paid for the survey, so they should be able to obtain the completed surveys. The respondents object and argue that the completed surveys [3] requested by the petitioner do not fall within the purview of RSA 91-A:4, I because the respondents do not have possession, custody, or control of the surveys.

RSA 91-A:4, I provides in relevant part:

Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5.

Upon review, the Court finds the documents requested by the petitioner are not subject to the right to inspect guaranteed by RSA 91-A:4, I. The statute explicitly provides citizens the right to inspect government records that are "in the possession, custody, or control" of public bodies. In this case, it is abundantly clear that the respondents are not in possession or custody of the documents because the Survey Center is in sole possession of the completed surveys. Similarly, the respondents are also not in control of the completed surveys. The respondents requested the completed surveys in furtherance of complying with the petitioner's request and were denied by the Survey Center. Thus, RSA 91-A:4, I is inapplicable to the petitioner's request.

Accordingly, the petitioner's Petition for Right to Know is DENIED.

Attorney's Fees

The respondents also submitted a Motion for Attorney's Fees, requesting an award of attorney's fees pursuant to RSA 91-A:8, II. The respondents argue they repeatedly informed the petitioner that the requested surveys were not in their possession, and despite their attempts they could not obtain possession of the surveys. The respondents also argue their legal counsel notified the petitioner on the morning of the hearing on this matter that she would seek an award of attorney's fees if he did not withdraw his Petition.

[4] RSA 91-A:8, II provides, "The court may award attorney's fees to a public body or public agency or employee or member thereof, for having to defend against a lawsuit under the provisions of this chapter, when the court finds that the lawsuit is in bad faith, frivolous, unjust, vexatious, wanton, or oppressive."

In this case, the Court finds that an award of attorney's fees is appropriate. The correspondence submitted as exhibits at the hearing and appended to the respondents' Objection indicate the respondents promptly responded to the petitioner's request and helped facilitate contact with the Survey Center. Additionally, as noted above, the petitioner was notified on several occasions that the respondents were unable to provide the surveys and requested that the petitioner withdraw his Petition. Furthermore, the petitioner provided no compelling reason why the Court should not award the respondents reasonable attorney's fees. Thus, the petitioner's decision to maintain this frivolous Petition, despite the respondents' repeated notifications that the requested documents were not subject to RSA 91-A:4, I, merits an award of attorney's fees.

Accordingly, the respondents' Motion for Attorney's Fees is GRANTED. The respondents have ten (10) days from the Clerk's notice of this Order to provide an itemization of the amount requested for the Court's review.


   3/18/13       /s/   

Date James D. O'Neill, III

Presiding Justice