Comeau v. Carroll County, Doc. No. 212-2014-CV-008 (Carroll Super. Ct., February 17, 2015) (Garfunkel, J.)

[1]

STATE OF NEW HAMPSHIRE

CARROLL, SS. SUPERIOR COURT

Edward Comeau

v.

Carroll County, et al.

No. 212-2014-CV-008

ORDER

The plaintiff, Edward Comeau, brought this action against the defendants -Carroll County ("the County"); David Sorenson, individually and in his official capacity as Carroll County Commissioner; and David Babson, individually and in his official capacity as Carroll County Commissioner- asserting violations under New Hampshire's Right-to-Know law, RSA chapter 91-A. Specifically, the plaintiff argues that the defendants failed to comply with the statutory requirements when they attempted to enter nonpublic session on multiple occasions; therefore, the meeting minutes with respect to each of these sessions should be disclosed. The court finds and rules as follows.

I. Background

On October 7, 2014, the parties reached a Settlement Agreement as to the disposition of the instant action and filed that agreement with the court. The parties have agreed that the County would submit certain minutes of public and nonpublic sessions for the court to review in camera. These include minutes from the following dates: January 9, 2013; January 16, 2013; January 24, 2013; February 20, 2013; February 27, 2013; March 13, 2013; March 20, 2013; March 27, 2013; April 3, 2013; April 17, 2013; April 24, 2013; May 1, 2013; May 3, 2013; May 8, 2013; May 15, 2013; [2] May 29, 2013; June 26, 2013; July 3, 2013; July 31, 2013; August 7, 2013; August 21, 2013; September 4, 2013; and September 11, 2013.1

Additionally, pursuant to the Settlement Agreement, the County provided a memorandum representing the following facts for each set of minutes: (1) whether the minutes reflect that there was a roll-call vote held to go into nonpublic session as required by RSA 91-A:3, I(b); (2) whether the minutes reflect that the specific exemption relied upon as the foundation for the nonpublic session was stated on the record as required by RSA 91-A:3, I(b); and (3) whether the minutes reflect a recorded vote to seal the nonpublic session minutes or decisions as required under RSA 91-A:3, III, (Settlement Ag. ¶ 3.3 (d)). The parties have filed memoranda of law advocating for the relief that they believe is appropriate should the court determine that the defendants violated RSA 91-A on one or more dates. Having reviewed the submitted minutes, as well as the parties' pleadings, the court addresses the parties' arguments below.

II. Analysis

Resolution of this case requires the court to interpret provisions of the Right-to-Know law, RSA chapter 91-A. 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] The plaintiff first argues that the defendants failed to conduct a roll call vote, as required by the statute, before entering into nonpublic session. Under RSA 91-A:3, I(a):

Public bodies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II. No session at which evidence, information, or testimony in any form is received shall be closed to the public, except as provided in paragraph II. No public body may enter nonpublic session, except pursuant to a motion properly made and seconded.

The statute further states that "[t]he vote on any such motion [to enter nonpublic session] shall be by roll call, and shall require the affirmative vote of the majority of the members present." RSA 91-A:3, I(b).

Here, there is no dispute that the defendants did not hold a roll call vote to enter nonpublic session on the following dates: January 16, 2013; February 27, 2013; March 13, 2013; April 3, 2013; and May 8, 2013. Because the defendants failed to hold a roll call vote to enter nonpublic session on these dates, the court concludes that the defendants have violated RSA 91-A:3, I(a) with respect to these dates.

With respect to certain other dates-specifically, January 9, 2013; January 24, 2013; May 29, 2013; July 31, 2013; August 7, 2013; August 21, 2013; September 4, 2013; and September 11, 2013-the defendants held a roll call vote to enter nonpublic session but the individual commissioners and their respective votes were not documented. Additionally, on May 3, 2013, the defendants held a roll call vote to enter nonpublic session but it was not recorded in the public minutes. Despite defendants' arguments to the contrary, the statute states that a vote on a motion to enter nonpublic session "shall be by roll call and shall require the affirmative vote of the majority of the members present." RSA 91-A:3, I(b); see Appeal of Rowan, 142 N.H. 67, 71 (1997) ("It is the general rule that in statutes the word 'may' is permissive only, and the word 'shall' [4] is mandatory."). Given the defendants' failure to strictly comply with the plain language of the statute, the court concludes that the defendants violated RSA 91-A with respect to meetings held on these dates.

Finally, the parties agree that on March 20, 2013, March 27, 2013, April 17, 2013, April 24, 2013, May 1, 2013, May 15, 2013, June 24, 2013, July 3, 2013, the defendants complied with the statute by conducting a roll call vote to enter nonpublic session and documented each commissioner's vote. Upon review of these records, the court concludes that the defendants did not violate RSA 91-A:3, I(b) on these dates.

The parties next dispute whether the defendants provided an appropriate exemption as a basis for entering nonpublic session. As RSA 91-A:3, I(a) makes clear, public bodies "shall not meet in nonpublic session, except for one of the purposes set out in paragraph II." Paragraph II of the statute provides specific statutory exemptions that allow a public body to enter nonpublic session. The New Hampshire Supreme Court has held that statutory exemptions, which allow certain documents to be shielded from public access, must be construed narrowly. See Orford Teachers Ass'n v. Watson, 121 N.H. 118, 121 (1981).

Here, the defendants failed to provide any reason for entering nonpublic session on the following dates: January 24, 2013; March 13, 2013; April 3, 2013; and May 8, 2013. Therefore, the court concludes that the defendants violated RSA 91-A:3, I(a) for failing to state a statutory exemption for entering into nonpublic session.

The court further finds that the defendants provided a specific reason for entering into nonpublic session that would constitute an exemption, but failed to explicitly cite a statutory exemption, on the following dates: January 9, 2013; February 20, 2013; [5] February 27, 2013; March 20, 2013; March 27, 2013; April 17, 2013; April 24, 2013; May 1, 2013; May 15, 2013: May 29, 2013; June 26, 2013; and July 3, 2013. Because the statute makes clear that a public body "shall not meet in nonpublic session" for any reason other than those listed in the statute, the court concludes that the defendants violated RSA 91-A:3, I(a) on these dates.

Additionally, on May 3, 2013, the defendants cited a statutory exemption for entering nonpublic session during the nonpublic meeting minutes but failed to state this reason during the public meeting. As the plaintiff correctly notes, this type of conduct frustrates the very purpose of the Right-to-Know law, which "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." Montenegro v. City of Dover, 162 N.H. 641, 645 (2011). As a result, the court finds and rules that the defendants violated RSA 91-A:3, I(a) by failing to state a statutory exemption on the public record before entering nonpublic session.

On January 16, 2013, the defendants: (1) gave a specific reason for entering into nonpublic session but failed to cite a specific statutory exemption, and (2) failed to state this reason during the public meeting. For these reasons, the court concludes that the defendants violated RSA 91-A:3, I on this date.

Finally, the court finds that the defendants explicitly cited a statutory exemption on the following meeting dates: July 31, 2013; August 7, 2013; August 21, 2013; September 4, 2013; and September 11, 2013. Therefore, the court rules that the defendants did not violate RSA 91-A:3, I(a) on these dates.

[6] The plaintiff further asserts that even if the defendants complied with the statutory scheme with regards to the roll call vote and they provided a specific statutory exemption, the defendants nevertheless failed to seal the meeting minutes within 72 hours by recorded vote of 2/3 of the members present.

Under RSA 91-A:3, III:

Minutes of meetings in nonpublic session shall be kept and the record of all actions shall be promptly made available for public inspection, except as provided in this section. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. . . .

Upon review of the documents in question, the court finds that the defendants failed to seal the record on the following dates: January 16, 2013; February 20, 2013; March 13, 2013; March 20, 2013; March 27, 2013; April 3, 2013; April 24, 2013; and May 1, 2013. As a result, the court concludes that the defendants failed to comply with RSA 91-A:3, III on these dates. Additionally, the court finds and rules that the defendants properly sealed the records from nonpublic meetings held on the following dates: January 9, 2013; January 24, 2013; February 27, 2013; April 17, 2013; May 3, 2013; May 8, 2013; May 15, 2013; May 29, 2013; June 26, 2013; July 3, 2013; July 31, 2013; August 7, 2013; August 21, 2013; September 4, 2013; and September 11, 2013. Therefore, the defendants complied with RSA 91-A:3, III on these dates.

[7] Having concluded that the defendants violated the Right-to-Know law, the court must determine what remedies are appropriate. The plaintiff seeks the following: (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 defendants' alleged bad faith; and (3) attorney's fees in connection with bringing this action. For the reasons that follow, the court awards limited injunctive relief.

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 defendants to immediately produce the information requested by the plaintiff in its entirety. In response, the defendants argue that any violations under RSA 91-A are technical in nature; therefore, upon weighing the potential harm that will result from disclosure against the need for access to public documents, the court should deny the plaintiff's request for injunctive relief. The defendants further argue that even if some of the documents should be disclosed, they must be properly redacted.

In this case, the defendants attempted to enter nonpublic session and subsequently seal the records but failed to comply with the technical components of the statute on the following dates: January 9, 2013; April 17, 2013; May 3, 2013; May 15, 2013; May 29, 2013; June 26, 2013; July 3, 2013; July 31, 2013; August 7, 2013; August 21, 2013; September 4, 2013; and September 11, 2013. However, despite failing to comply with the technical components of the statute, the court concludes that the defendants have substantially complied with the statutory scheme on these dates. Specifically, the defendants substantially complied with the statutory scheme when they held a roll call vote to enter nonpublic session, but failed to document the individual [8] commissioners and their respective votes, on the following dates: January 9, 2013; May 3, 2013; May 29, 2013; July 31, 2013; August 7, 2013; August 21, 2013; September 4, 2013; and September 11, 2013. Furthermore, the defendants substantially complied with the statute when they provided a specific reason for entering nonpublic session that would constitute an exemption, but failed to explicitly cite a statutory exemption contained in RSA 91-A:3, II, on the following dates: January 9, 2013; April 17, 2013; May 15, 2013; May 29, 2013; June 26, 2013; and July 3, 2013. On all of the dates listed above, the defendants properly sealed the meeting minutes.

While the plaintiff argues that these records must be disclosed in their entirely, the court concludes that this remedy would not be appropriate, given the technical nature of these violations and the privacy interests of third parties involved. Having weighed the potential harm that will result from disclosure against the need for public access to the documents, the court concludes that the aforementioned records need not be disclosed. This conclusion is particularly appropriate in light of the fact that the defendants have undergone remedial training to ensure that they will comply with the technical requirements set forth in the statute in the future. See (Settlement Ag. ¶¶ 4.1 (a)-(c)).

With respect to other records, the court finds that the defendants failed to conduct a vote to enter nonpublic session, failed to state a reason for entering into nonpublic session, and/or failed to seal the nonpublic session records as required by statute. These records include meeting minutes from the following dates: January 16, 2013; January 24, 2013; February 20, 2013; February 27, 2013; March 13, 2013; March 20, 2013; March 27, 2013; April 3, 2013; April 24, 2013; May 1, 2013; May 3, 2013; and [9] May 8, 2013. Given the defendants' substantial non-compliance with the statute, the court concludes that the documents and minutes from these dates are not shielded from public access. Nevertheless, information in each of these minutes may fall within an exemption found in RSA 91-A:5 and would, therefore, be subject to redaction. Therefore, the court orders the County to submit these meeting minutes with proposed redactions within 30 days of the date of the clerk's written notice of this order so the court can determine whether the information contained in the proposed redactions falls within one of the exemptions in RSA 91-A:5. The County shall also provide the court with the statutory exemption that forms the basis of each redaction.

The plaintiff next seeks a civil penalty of not less than $250 and not more than $2,000. Under RSA 91-A:8, IV, "[i]f the court finds than an officer, employee, or other official of a public body or public agency has violated any provision of this chapter in bad faith, the court shall impose against such person a penalty of not less than $250 and not more than $2,000." Here, there is no evidence that the defendants acted in bad faith. Accordingly, the plaintiff's request is DENIED.

Finally, the plaintiff seeks attorney's fees in connection with bringing this action. The Settlement Agreement makes clear, however, that the parties have already agreed that the defendants shall pay the plaintiff a set amount of attorney's fees for bringing this action. As a result, the court need not render a determination as to attorney's fees.

III. Conclusion

For the foregoing reasons, the court finds and rules that the defendants violated RSA 91-A on certain dates when they attempted to enter nonpublic session. However, in light of the nature of the violations committed by the defendants, the court concludes [10] that outright disclosure of all meeting minutes procured during these nonpublic sessions would be inappropriate. Consistent with the analysis above, certain documents are shielded from disclosure due to the defendants' substantial compliance with the statutory scheme. With respect to the remaining documents, the County shall submit a redacted version of certain documents with the appropriate statutory cites supporting each redaction within 30 days of the clerk's written notice of this order, at which point the court will determine whether these documents are to be disclosed in redacted form.

SO ORDERED.

February 17, 2015    /s/   

David A. Garfunkel

Presiding Justice


1 Two additional dates-May 13, 2013 and July 24, 2013-appear in the County's submission. However, the County notes that the references to these minutes are in error and are actually references to the March 13, 2013 redacted nonpublic meeting minutes. As a result, the court need not address the plaintiff's claims with respect to these dates.