THE STATE OF NEW HAMPSHIRE
CARROLL COUNTY SUPERIOR COURT
River Run Company, Inc.
v.
Town of Bartlett Planning Board
Docket No. 2010-CV-031
ORDER
The plaintiff, River Run Co., Inc. ("River Run"), filed a petition asserting that the defendant, the Town of Bartlett ("the Town"), violated RSA Chapter 91-A ("the Right to Know Law") when the Town's Planning Board ("the Board") convened nonpublic sessions to discuss written advice from its attorney, and when it refused to produce the written advice upon River Run's request.
River Run requests that the court order the Town to produce the minutes of the nonpublic sessions, any tape made of such sessions, and any materials, including letters from the Board's attorney, referred to in such sessions. River Run also requests that the court enjoin the Board from going into nonpublic session or otherwise discussing legal issues except in strict compliance with the provisions of the Right to Know Law. River Run also seeks an award of attorney's fees and costs under RSA 91-A:8.
The Town objects, asserting that the Board has provided River Run with minutes of the nonpublic sessions, that no recordings were made of those nonpublic sessions, that it has provided a copy of one of the three letters from the Board's attorney referred to in the minutes of the nonpublic sessions, and that it declines under attorney-client privilege to provide copies of the other two letters from the Board's attorney. The Town further asserts that the Board did not violate the Right to Know Law, so no injunction is appropriate. For the same reason, the Town objects to any award of attorney's fees or costs.
The parties waived hearing, and the matter is submitted on their memoranda and exhibits made part of the record by agreement. After a review of the facts, the parties' arguments, and the applicable law, the court finds and rules as follows.
[2] River Run filed a site review application with the Board. The Board requested legal advice from its attorney, Charles Tucker, in connection with that application. Attorney Tucker provided legal advice to the Board in three letters, dated July 10, 2009, October 2, 2009, and October 19, 2009. At its monthly meetings on July 21, 2009, October 5, 2009, and November 2, 2009, the Board excluded the public from the room and reviewed and discussed the letters. The Board called these meetings "nonpublic sessions" and kept minutes of the sessions, RSA 91-A:3, III. No recording was made of these sessions.
On August 3, 2009, River Run requested a copy of Attorney Tucker's July 10, 2009 letter. After apparently consulting with Attorney Tucker, the Board faxed a copy of that letter to River Run.
On February 10, 2010, River Run requested the minutes from these meetings, any tape recordings of the meetings, and any documents considered at the meetings, citing the Right to Know Law. The Board responded on February 16, 2010, acknowledging that it had received the request and informing River Run that it would consider the request at its next meeting, to be held on February 16, 2010. On February 17, 2010, the Board produced the minutes, informed River Run that there were no recordings of the meetings, and declined to produce the October 2, 2009 and October 19, 2009 letters, stating that they were protected by attorney-client privilege and noting that it had already released the July 10, 2009 letter to River Run.
Although there are exceptions not relevant here, see e.g. RSA 91-A:3, the Right to Know Law, RSA 91-A:2, II, provides, in pertinent part, "[a]ll meetings . . . shall be open to the public." RSA 91-A:2, I, provides that "meeting" means "the convening of a quorum of the membership of a public body . . . for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power."
RSA 91-A:2, I(c), provides, however, that the definition of a "meeting" shall not include "consultation with legal counsel." Here, the Board excluded the public to read and discuss legal advice from the Board's attorney, relying on RSA 91-A:3, which concerns nonpublic sessions. Because the Board's intent in excluding the public was to rely on the consultation with legal counsel provision of the Right to Know Law, they were actually proceeding under RSA 91-A:2, I(c), which provides that consultation with counsel is not a meeting of any kind within the meaning of the Right to Know Law, not under RSA 91-A:3, which concerns nonpublic sessions. [3] Because the Board has already provided River Run with copies of the minutes of the "nonpublic sessions," RSA 91-A:3, III, and because no recordings of those sessions were made, the court's focus is on the "consultation with legal counsel" clause found in the non-meeting provisions of RSA 91-A:2, I.
River Run asserts that the sessions at which the Board excluded the public do not constitute "consultation with legal counsel" within the meaning of the Right to Know Law. As the parties have discussed in their memoranda, there are fundamental interests at work here. On one hand, the purpose of the Right to Know Law is "to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." Lambert v. Belknap Cty. Convention, 157 N.H. 375, 379 (2008) (citation and quotation omitted). On the other hand, as this portion of the Right to Know Law recognizes, "confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction," Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966), see Society for Protection of N.H. Forests v. Water Supply & Pollution Control Comm'n, 115 N.H. 192, 194 (1975) ("Absent specific legislative intent to plainly and unmistakably deprive the commission of the benefits of advice of counsel, the commission's receipt of legal advice cannot be deemed a violation of RSA 91-A:3").
The court concludes that, to the extent the Legislature may have viewed these interests as competing, it has reconciled that competition in the language of the Right to Know Law, permitting, through the "consultation with legal counsel" provision in RSA 91-A:2, I(c), public bodies to have attorney-client confidential communications without disclosure to the public, and at the same time ensuring the greatest possible public access to the actions, discussions and records of public bodies by limiting the circumstances under which those communications may occur.
In interpreting the language of a statute, the court must ascribe the plain and ordinary meaning to the words used and consider them not in isolation but in context of the overall statute. Pennelli v. Town of Pelham, 148 N.H. 365, 366 (2002). "In so doing, we are better able to discern the legislature's intent, and therefore better able to understand the statutory language in light of the policy sought to be advanced by the entire statutory scheme." Id. (quotation omitted). The court will not consider what the legislature might have said, or add language that the [4] legislature did not see fit to include. ElderTrust of Fla. v. Town of Epsom, 154 N.H. 693, 697 (2007).
The plain meaning of "consultation" is a conference or meeting for deliberation, discussion, or decision. WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY 437 (1996). The plain meaning of "with" is accompanied by or accompanying. Id. at 2183. Thus, a "consultation with legal counsel" is a conference or meeting for discussion accompanied by or accompanying the public body's legal counsel.
It has elsewhere been asserted that there are policy and practical reasons in support of permitting public bodies, and particularly local volunteer public bodies like planning boards, to meet outside of a formal public or nonpublic meeting to read legal advice from the body's attorney set out in a written document, or to receive legal advice conveyed from the body's attorney through a third person such as the body's administrative assistant or the body's chairperson. Because the Board here did more than that, this order does not reach or decide whether the "consultation with legal counsel" clause permits such actions.
It has also elsewhere been asserted that there are policy and practical reasons in support of interpreting "consultation with legal counsel" to include discussion of advice received from legal counsel. The minutes reflect that those discussions did occur here, but the policy and practical issues generally asserted in support of that practice are for the Legislature, not the court, to consider. The court instead has before it the plain meaning of the "consultation with legal counsel" clause adopted by the Legislature, and that clause is not amenable to an interpretation which would include discussions by the members of a public body in a non-meeting about legal advice received from their attorney who is not present.1
To the extent a plain reading of RSA 91-A:2, I(c) leaves any doubt, the Legislature itself has erased any such doubt by elsewhere in the Right to Know Law plainly permitting public bodies to have discussions concerning legal matters without the body's attorney present, but only for "consideration or negotiation of pending claims or litigation which has been threatened in writing or filed against the public body or an subdivision thereof, or against a member thereof because of his or her membership in such public body, until the claim or litigation has been fully [5] adjudicated or otherwise settled," RSA 91-A:3, II(e). Thus, the Legislature has set up a process by which public bodies may meet without legal counsel present to discuss legal issues, but only to consider or negotiate pending or threatened legal claims against the body or its members. The court concludes that the Legislature has demonstrated that it is capable of carving out specific legal matters about which public bodies can hold discussions without their attorneys, and did not in doing so include the kinds of discussions which occurred here.
The Board conducted a non-meeting at which its attorney was not present and at which the Board discussed its attorney's legal advice. Such discussions are not contemplated by the plain meaning of the Right to Know Law as an exception to the Law's open meeting requirements. The court accordingly finds that in doing so the Board violated the Right to Know Law, and orders that in any further proceedings concerning this application the Board shall not discuss legal advice received from its attorney outside of a public meeting except in consultation with that attorney, or, if applicable, under RSA 91-A:3, II(e).
River Run requests copies of the letters from Attorney Tucker considered by the Board at its October 5, 2009 and November 2, 2009 sessions. "[C]onfidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction," Riddle Spring, 107 N.H. at 273, and the Legislature has not specifically expressed an intent to plainly and unmistakably deprive public bodies of the benefits of advice of counsel, see Society for Protection of N.H., 115 N.H. at 194. That the Board disclosed in its nonpublic session minutes the topic of their discussions and disclosed one of the letters does not constitute a waiver such that River Run is entitled to all of the legal advice received from the Board's attorney. The request for copies of letters to the Board from the Board's attorney is denied.
River Run requests its attorney's fees and costs. RSA 91-A:8, I, provides that fees shall not be awarded unless the court finds that "the body . . . knew or should have known that the conduct engaged in was a violation of this chapter." There is nothing in the record to indicate that the Board or its members knew they were violating the Right to Know Law. The court also finds that the Board and its members should not have known that its conduct was in violation of the Right to Know Law. The Board provided copies of the minutes of its "nonpublic session" disclosing the topic of the legal advice received, and provided a copy of one of the letters [6] providing that advice. In the absence of a court ruling or guidance in the Attorney General's Right to Know Memorandum stating that counsel must actually be present in order for such discussions to occur in a non-meeting - and the court is aware of no such ruling or guidance - it cannot be said that the Board "should have known" that such discussions violated the Right to Know Law. Again, this order does not reach or decide, because it need not, whether the practice of holding a non-meeting to read counsel's legal advice or to receive that advice through an assistant or a board member is within the meaning of RSA 91-A:2, I(c). The court does reach and decide that conducting a discussion of that legal advice between and among board members without the attorney present2 is not within the plain meaning of RSA 91-A:2, I(c), but the court cannot say that this Board should have known that it was violating the Right to Know Law. Accordingly, no attorney's fees will be awarded. River Run is, however, the prevailing party in this action within the meaning of Superior Court Rule 87, and the Clerk will tax costs accordingly.
So ordered.
1 Because the Board's attorney was not present in any form, the court does not reach or decide whether the "consultation with legal counsel" clause permits a public body to consult with legal counsel not only in person but also by telephone, video conference, email, text messaging or other form of electronic communication.