Porter v. Town of Sandwich, Doc. No. 212-2014-CV-180 (Carroll Super. Ct., August 14, 2015) (Temple, J.)

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[1]

STATE OF NEW HAMPSHIRE

CARROLL, SS. SUPERIOR COURT

H. Boone Porter, III, and Margaret C. Porter

v.

Town of Sandwich, Benjamin Shambaugh, Wendy Huff, and Arthur Kerr

Docket No. 212-2014-CV-180

ORDER ON THE MERITS

The plaintiffs, H. Boone Porter, III, and Margaret C. Porter (collectively the "Porters"), bring this action against the defendants, the Town of Sandwich (the "Town"), Benjamin Shambaugh ("Shambaugh"), Wendy Huff ("Huff"), and Arthur Kerr ("Kerr") (collectively the "defendants"), asserting various violations of the Right-to-Know Law, see RSA chapter 91-A (2013 & Supp. 2014), and seeking: (1) the disclosure of certain documents relating to the Porters' request for rehearing before the Town's Zoning Board of Adjustment (the "ZBA"); (2) the invalidation of several of the Town's decisions relating to certain construction on an abutting property owned by the intervenors, William Aulet and Elizabeth Aulet (the "Aulets"); (3) attorney's fees and costs; and (4) other penalties.1 The court held a bench trial on March 6, 2015, and April 14, 2015. After considering the parties' arguments, the factual circumstances of the case, and the applicable law, the Porters' petition is GRANTED in part and DENIED in part.

[2] I. Factual and Procedural Background

The following facts were adduced at trial, or were otherwise agreed upon by the parties. The Porters own a lakefront property, which is located in Sandwich. This is not their primary residence. The Porters visited their lakefront property on June 24, 2014-the day after Mr. Porter received shoulder surgery. While there, they observed construction occurring on an abutting lot, which is owned by the Aulets. Having been under the impression that the Aulets' lot was unbuildable under the Town's zoning ordinance, the Porters decided to investigate the issuance of the Aulets' building permit.

On June 30, 2014, Mrs. Porter called the Town to inquire about the Aulets' project. She spoke to Catherine Graham ("Graham")-the Town's administrative assistant. Mrs. Porter informed Graham that the Porters were planning to attend any upcoming town meetings; she requested the date of the next meetings of various boards and the names of persons serving on those boards. She also indicated that the Porters planned to file an appeal relating to the issuance of the Aulets' building permit.

That same day, Graham arranged notes for the Board of Selectmen (the "BOS") in preparation for that evening's BOS meeting. (Pls.' Ex. 9.) These notes notified the BOS that Mr. Porter would be attending the meeting, and that Mr. Porter would provide the BOS with a "packet on why he feels the Aulet property on the lake is not in compliance with our ordinance . . . ." (Id. ¶ 11.) The notes also indicated that Mr. Porter planned to attend upcoming town meetings, and that he intended to file an appeal to the ZBA regarding the Aulets' building permit. (Id.)

The next day, July 1, 2014, Graham sent an e-mail to Huff, the Town's land use secretary, notifying her that Mr. Porter planned to attend the Planning Board meeting [3] scheduled for July 2, 2014.2 (Pls.' Ex. 10 at 1.) In the e-mail, she indicated that Mr. Porter would "distribute to each member a packet on why the Aulets property on Squam Lake Road is not in compliance with [the] Zoning Ordinance." (Id.) She explained that Mr. Porter looked into the Aulets' construction, and believes that the structure is an accessory dwelling requiring a special exception from the ZBA. (Id.) She then wrote: "I have not yet seen the packet-he is providing one to each Selectman and ZBA member too. He is pretty angry about this . . . ." (Id.) When she sent this e-mail, Graham did not believe that the Porters planned to disregard proper procedures, or to otherwise impermissibly contact any members of the BOS, the ZBA, or the Planning Board. Additionally, as the term "packet" does not have any specific meaning within the Town offices, her use of the term "packet" was not intended to relay that the Porters planned to provide anything other than a properly filed appeal or motion.

Later that morning, Huff replied to Graham's e-mail, copying Shambaugh, the ZBA Chair, and Tim Miner, the Chair of the Planning Board.3 (Id.; Pls.' Ex. 50 at 5.) In her response, Huff stated, in relevant part:

As a former member of both the [Planning Board] and the ZBA, [Mr. Porter] should know that the [Planning Board] does not offer interpretations of the zoning ordinance but can only confirm definitions and the ZBA should in no way be seeing a packet with, or hearing information about, a potential future appeal. His only recourse is to the BOS, and if the building permit was issued more than 30 days ago, his time frame for an appeal is lost. He can request that the BOS, as enforcers and therefore interpreters of the zoning ordinance make sure the owners understand what they are allowed and issue a cease and desist if the construction exceeds what is allowed. The owners would then need a [4] variance for a new structure or a special exception for an addition to an existing structure in the shoreland district.

(Pls.' Ex. 10 at 1.) Although the timing is unclear, after receiving Huff's reply, Graham again spoke with Mrs. Porter. During this conversation, Graham told Mrs. Porter that Huff was "very angry" that the Porters would be at the Planning Board meeting.

Interpreting Graham's and Huff's e-mails as indicating that Mr. Porter planned to improperly contact ZBA members, Shambaugh sent an e-mail to the ZBA members, notifying them that Mr. Porter planned to give them a "packet," and cautioning them to "destroy this packet, unread . . . ." (Pls.' Ex. 12 at 1.) He also wrote that "[Mr. Porter] should be aware that it is inappropriate to petition a judicial body without going through the proper procedures!" (Id.) Huff then replied to all recipients of Shambaugh's e-mail, indicating that she had instructed the office staff to "confiscate" the Porters' filing. (Id.) Although she had never intended to indicate that Mr. Porter planned to act inappropriately, Graham had received Huff's and Shambaugh's e-mails. Despite this knowledge, she did not reach out to them to provide clarification of her earlier e-mail.

Later that evening, having been unintentionally copied on this e-mail thread, Mr. Porter replied to Shambaugh, though copying all recipients, notifying Shambaugh that he intended to use proper procedures for addressing his concerns with the Aulets' construction. (Id. at 2) He also expressed concern that Shambaugh's earlier remarks were "negative and unfounded" and that they had "prejudiced [his] anticipated appeal . . . ." (Id.) Mr. Porter also sent an additional response, addressing Shambaugh, urging him to advise Huff and other staff not to confiscate his appeal should it be filed. (Id.) This second e-mail also commented that "there would be very serious legal consequences" should his appeal be confiscated. (Id.)

[5] The following morning-July 2, 2014-Mr. Porter responded a third time in the same e-mail thread. (Pls.' Ex. 13 at 4.) In this e-mail, among other things, Mr. Porter expressed a concern that Shambaugh's July 1, 2014 e-mail to the ZBA members constituted a violation of the Right-to-Know Law. (Id.) Shortly thereafter, ZBA member, James Gaisser ("Gaisser"), sent the following reply to all recipients: "BOONE, THIS HAS TO STOP RIGHT NOW!!! NOT ONE MORE WORD!!!" (Id. at 3.)

On July 3, 2014, the Porters filed a petition with the BOS relating to the Aulets' building permit, which had been issued by Selectman Mike Yeager ("Yeager") on May 12, 2014. (Pls.' Ex. 15 at 1; Pls.' Ex. 57A at 3.)4 In the petition, the Porters stated their belief that the Aulets were "developing their land in violation of [the Town's] Zoning Ordinance[,]" and requested that the BOS "conduct an investigation and take appropriate actions to enforce the Zoning Ordinance." (Pls.' Ex. 15 at 1.) The request asserted that, although the Aulets' building permit authorized the construction of an accessory storage structure, the Aulets were, in fact, building an accessory dwelling-a structure not authorized by the permit. (Id.) They also questioned whether the location of the structure on the Aulets' property was permissible under the ordinance. (Id. at 2.) In raising these arguments, the Porters provided a detailed description of the authorizations that the Aulets had received from both the Town and the New Hampshire Department of Environmental Services Land Resources Management Wetland Bureau ("DES"). Additionally, they referenced various provisions of the Town's zoning ordinance in support of their arguments.

[6] On July 7, 2014, the Porters appeared before the BOS. (Pls.' Ex. 16 at 1-2.) There, they expressed concerns that the building permit had been improperly issued. (Id. at 2.) Additionally, they requested that, should the BOS determine that the building permit had been properly issued, the BOS should hold a public hearing with the Aulets present to address the issue of whether the Aulets had built above and beyond what their building permit authorized. (Id.) The BOS did not render a decision at that time, and instead, moved on to other issues on their agenda.5

On July 9, 2014, the Porters filed an appeal of an administrative decision with the ZBA (the "July 9 appeal"). (Pls.' Ex. 17 at 1.) This appeal contested the issuance of the Aulet's building permit. (Id. at 1-2.) The Porters included their July 3, 2014 letter to the BOS as an attachment to this appeal. (Compare Pls.' Ex. 15, with Pls.' Ex. 17 at 8-15.) After receiving the Porters' appeal, the Town sent a letter to the Aulets notifying them that their building permit was suspended, and ordering that they cease all construction. (Pls.' Ex. 22.)

On July 21, 2014, the BOS held a public meeting, at which it again discussed the Porters' concerns about the Aulets' building permit. (Pls.' Ex. 19 at 1.) Prior to the start of that meeting, the BOS specifically discussed that they were not persuaded by the Porters' arguments. (See Pls.' Ex. 57A at 17.) Once the meeting began, Kerr-the then BOS Chair-first stated that the BOS was "not inclined to hold a [p]ublic [h]earing to [7] discuss th[e] matter." (Pls.' Ex. 19 at 1; Pls.' Ex. 20 at 1.)6 The BOS then questioned Mr. Porter about his July 9 appeal to the ZBA. (Pls.' Ex. 19 at 1.) Mr. Porter represented that the July 9 appeal concerned whether the building permit should have been issued, and explained that the issue currently before the BOS was whether the Aulets were building beyond what the permit authorized. (Id.) Immediately thereafter, Kerr indicated that the BOS would not hold a public hearing, and stated: "All right. And we're not really persuaded by your argument that it's a 'dwelling.' I think it's a structure. That's how I feel about it. So we're not really inclined to do the hearing. We'll wait and see what the ZBA has to say about it." (Id.) Mr. Porter then urged the BOS to reconsider, raising various arguments. (Id. at 1-2.) Thereafter, Kerr stated:

This is it, it's you know, it's right here, it's an interpretation. It's a judgment call, and you know, we've read your argument about the human dwelling. We've talked about it. I've talked with other people around town about it, and you know, these people aren't going to live there. I know they don't have to spend the night there. You could call it your day house. Someone else could call it a paddlehouse.

(Id. at 2.)7 The BOS and Porter then discussed, with much disagreement, the nature of the structure being built on the Aulets' property, and how the new use compared to the use of the former storage shed. (Id. at 2-3.) Ultimately, Mr. Porter stated, "if that's your decision, that's your decision . . . ." (Id. at 3.) Kerr responded, "Yup." (Id.)8

At some point prior to the BOS's August 4, 2014 meeting, Graham arranged notes for the BOS to help them prepare. (Pls.' Ex. 23 at 1.) In these notes, Graham informed the BOS that the Town's Attorney, Walter Mitchell ("Mitchell"), believed there would be [8] no conflict of interest in his representation of the ZBA in the Porters' July 9 appeal "based on his minimal advice provided to [them] as Selectmen." (Id. at 1.) She also noted that Mitchell would be attending the ZBA meeting. (Id.)

On August 5, 2014, Huff sent an e-mail to the ZBA indicating that, among other things, an appeal of an administrative decision would be on the ZBA's agenda for a meeting on August 14, 2014. (Pls.' Ex. 25.) She explained that the documentation filed with the appeal was ready to be picked up, and offered to deliver the materials to ZBA members if necessary. (Id.) Additionally, the e-mail stated:

Also: Be advised that due to the complexities of the appeal of an administrative decision, Walter Mitchell, town counsel, will be attending the meeting. He will be present at 6:15 for a consultation with the [ZBA] prior to the 7:00 meeting; please try to be prompt! As this is legal consultation and not a meeting per RSA 91A, there is no notice for the consultation.

(Id.)

In preparation for the August 14, 2014 ZBA meeting, Huff prepared a "[p]acket [l]isting" for the ZBA members; these packet listings are generally made available to the public. (Pls.' Ex. 26 at 1.) The packet listing referenced the Porters' July 9 appeal. The packet listing indicated that Mitchell would be available prior to the meeting, and explained the issues relevant to the appeal as follows:

1. The building permit was approved by the BOS on May 12, 2014. The application was filed on July 9, 2014. The applicant waived the RSA requiring a hearing within 30 days of receipt of the appeal.
2. [Zoning Ordinance] Section 150-98 details the timeframe for appeals of a decision by the BOS, etc. as 30 days
2. [sic] The Selectmen's Office informed me that the previous shed was built without a building permit, probably a number of years prior. When the owners came in this year to request removal and to construct a new storage shed, the presence of the existing shed came to light and was placed on the Assessor's list to review.

(Id.)

[9] On August 14, 2014, the Porters filed another appeal of an administrative decision with the ZBA (the "August 14 appeal"). (Pls.' Ex. 31 at 1.) This appeal asserted that the Aulets were building an "accessory dwelling," as opposed to an accessory structure as authorized by their building permit. (Id.) The August 14 appeal related to the BOS's July 21, 2014 decision denying the Porters' request for a public hearing on the issue. (Id.) The Porters attached a memorandum to their application, which raised various arguments. (Id. at 9-11.)

That same day, the ZBA held a public meeting to address the Porters' July 9 appeal of the BOS's decision to issue a building permit to the Aulets. (Pls.' Ex. 28 at 1.) At the meeting, Shambaugh first noted that the permit had been issued on May 12, 2014, and that the Porters had not filed their appeal until July 9, 2014. (Id.) He explained that, under the Town's zoning ordinance, appeals to the ZBA must be filed within thirty days, and that the Porters filed their appeals fifty-eight days after the issuance of the permit.9 (Id.) Shambaugh stated that, before the ZBA could consider the merits of the appeal, it would first need to determine "whether the application was filed in a timely manner and whether [the Porters'] appeal [wa]s within the jurisdiction of the [ZBA] . . . ." (Id.) Mitchell then explained to the ZBA that the ordinance did not contain a provision authorizing it to waive the thirty-day time limitation. (Id. at 2.) Thereafter, the ZBA allowed the parties to speak to the timeliness issue. (Id.) Mr. Porter requested a waiver of the rule, arguing: (1) "the building being constructed is . . . not a storage shed"; (2) "[t]he spirit and intent of an appeal is to provide a fair and equitable hearing"; [10] and (3) "[a] dismissal of this appeal w[ould] not end the matter" because he planned to file another appeal. (Id.) The Aulets' attorney, Regina Nadeau ("Nadeau"), spoke in opposition. The ZBA then deliberated, with input from Mitchell. (Id.) After deliberation, the ZBA unanimously decided not to accept the Porters' July 9 appeal "as it was not filed within the 30 day appeal period." (Id. (emphasis omitted).) A written notice of decision followed. (Pls.' Ex. 29.)

The following day, Huff sent an e-mail to Graham, informing her of the events that had occurred at the August 14, 2014 ZBA meeting. (Pls.' Ex. 30.) In the e-mail, she stated:

In case you haven't already heard from Mike [Yeager], the ZBA denied the Porter application based on timeliness. Boone [Porter] was one unhappy camper! In his brief presentation on why the ZBA should accept the application, his second point was because he planned to appeal a recent decision (?) of the BOS and take this all the way to the Supreme Court if necessary, so why not hear it now?

(Id.) Graham felt that this e-mail-particularly Huff's description of Mr. Porter as "one unhappy camper"-was inappropriate.

On September 11, 2014, the ZBA held a public meeting to address the Porters' August 14 appeal of the BOS's decision not to hold a public hearing on the issue of the Aulets' compliance with the building permit. (Pls.' Ex. 34 at 1.) The Porters were not permitted to speak at this meeting. Rather, at the meeting, Shambaugh indicated that, before the ZBA could address the merits, it would first need to determine if it had jurisdiction to hear the appeal. (Id.) He then discussed the requirements of RSA 676:5 (Supp. 2014). (Id.) He explained that the statute authorizes the ZBA to hear appeals from decisions of administrative officers, and read the statutory definition of the term [11] 'decision of the administrative officer' aloud.10 (Id. at 1-2.) He then opined that the ZBA lacked jurisdiction because the Porters were appealing the BOS's decision not to hold a public hearing, and because the zoning ordinance did not require a public hearing to be held. (Id. at 2.) Gaisser then asserted that, in his opinion, the Porters' appeal was properly before the ZBA because section 150-99 of the zoning ordinance stated that, "[i]n case of violation of these regulations, the Selectmen of the Town of Sandwich shall institute appropriate action or proceedings to prevent, restrain, abate, or correct such unlawful action." (Id. (emphasis omitted).) Several other ZBA members then professed their agreement with Shambaugh. (Id.) After additional discussion amongst the ZBA members, the ZBA decided that it did not have jurisdiction over the appeal because "the [BOS]'s decision to not hold a public hearing was not intrinsic to the specific terms of the ordinance." A written notice of decision followed. (Pls.' Ex. 35.)

On September 15, 2014, the Porters filed a motion with the ZBA, requesting that the ZBA reconsider its August 14, 2014 decision regarding the July 9 appeal. (Pls.' Ex. 36 at 1.) In their motion, the Porters argued that the ZBA's decision should be invalidated because Shambaugh's July 1, 2014 e-mail to the ZBA members urging them to destroy their "packet" constituted an unnoticed meeting under the Right-to-Know Law. (Id. at 1-3.) They requested that the ZBA's decision be invalidated, that the ZBA hold a public hearing on the merits of the appeal, and that Shambaugh and those "wrongfully influenced" by him be recused from further proceedings. (Id. at 5.)

On September 24, 2014, the Porters filed a motion with the ZBA, requesting that the ZBA reconsider its September 11, 2014 decision regarding the Porters' August 14 [12] appeal. (Pls.' Ex. 36 at 15.) In their motion, the Porters argued that the ZBA erroneously determined that it lacked jurisdiction over their appeal. (Id. at 19.) This motion sought the same relief as their September 15, 2014 motion. (Id. at 21.)

Upon receiving the Porters' September 24, 2014 motion, Graham sent Huff an e-mail, notifying her that the motion had been filed, and indicating where she had placed copies of the motion for distribution to the ZBA. (Pls.' Ex. 39.) Huff replied by e-mail the following day. (Id.) Her e-mail stated, in pertinent part: "[A]t least we'll be able to put both on the October agenda and be done with them." (Id.)

The ZBA scheduled a meeting for October 9, 2014, at which it planned to address the Porters' pending motions. However, two days before the hearing was supposed to be held, the Porters discovered a copy of a draft decision on the front seat of their car, denying one of their motions to reconsider. Along with the draft decision, the Porters discovered an excerpt from an e-mail, which indicated that the draft denial decision had been sent to the entire ZBA. This draft decision, which had been created by Mitchell at Shambaugh's request, had in fact been circulated to all ZBA members earlier that day by Huff via e-mail. (Pls.' Ex. 44.) Huff's e-mail explained that Mitchell had drafted the decision, and indicated that it was being sent to the ZBA "for consideration . . . ." (Id.) It also included a message from Mitchell, in which Mitchell referred to the draft as "[his] suggested decision for the [ZBA] to adopt." (Id.) Additionally, although unbeknownst to the Porters at the time, another draft decision denying their other motion to reconsider had already been circulated to the ZBA. Huff had already sent this other draft decision as an attachment to a packet listing, which she had prepared for the scheduled October [13] 9, 2014 meeting.11 (Pls.' Ex. 41.) This packet listing specifically stated that Mitchell "drafted language on the [m]otion for the [ZBA]'s consideration" and explained that the draft was "for them to consider . . . ." (Id.) Both draft decisions distributed to the ZBA included factual findings not made in the original decisions. (Compare, Pls.' Exs. 43, 45, with Pls.' Exs. 29, 35.) These were the only two draft decisions that Huff has ever distributed to the ZBA before the relevant public meeting has been held. These were also the only applications before the ZBA that were denied in 2014.

On October 14, 2014, Huff sent an e-mail to the ZBA members, indicating that Mitchell had requested a "consultation with the ZBA to go over the Porter[s'] [m]otions for [r]ehearing." (Pls.' Ex. 46.) The e-mail indicated that the consultation would occur on November 3, 2014, and that all members should attend. (Id.)

On October 20, 2014, the Porters filed a Right-to-Know request (the "first Right-to-Know request") with Mitchell. (Pls.' Ex. 1 at 1.) In this request, the Porters sought disclosure of the following: (1) "[c]opies of all documents, communications, electronic mail, and information relating in any way to Case #2014-003 H. Boone Porter III Rev. Trust and Margaret C. Porter Rev. Trust, HB & MC Porter, Trustees . . . ."; (2) "[c]opies of all documents, communications, electronic mail, and information relating in any way to Case #2014-007 H. Boone Porter III Rev. Trust and Margaret C. Porter Rev. Trust, HB & MC Porter, Trustees, as well as the proceedings before the [BOS] leading to the appeal . . . ."; (3) "[c]opies of all documents, communications, electronic mail, and information relating in any way to Case #2014-008 H. Boone Porter III Rev. Trust and Margaret C. Porter Rev. Trust, HB & MC Porter, Trustees . . . ."; (4) "[c]opies of all documents, communications, electronic mail, and information relating in any way to [14] Case #2014-09 H. Boone Porter III Rev. Trust and Margaret C. Porter Rev. Trust, HB & MC Porter, Trustees . . . ."; (5) "[c]opies of all documents, communications, electronic mail, and information relating in any way to the Building Permit for William K. and Elizabeth W. Aulet for Tax Map & Lot R20-9 . . . ."; (6) "[c]opies of all documents, communications, electronic mail, and information relating in any way to property at Tax Map & Lot R20 Lot 9 since June 1, 2013"; (7) "From June 1, 2013 to the present, copies of all documents, communications, correspondence, electronic mail, and information that was written by or received by any of the following persons on any personal or Town e[-]mail account relating in any way to the [previously-listed requests]";12 and (8) "[c]opies of all documents, drafts, decisions, and materials from Walter Mitchell to the [BOS] and/or the ZBA regarding any of the matters referenced in requests 1, 2, 3, 4, 5 and 6." (Id. at 1-3.) The first Right-to-Know request also asked that the Town produce a privilege log in the event it chose to assert that any of the requested documents are privileged. (Id. at 3.)

On or about October 28, 2014, the Porters filed a motion to supplement their earlier requests for reconsideration with the ZBA. (Pls.' Ex. 37 at 1, 8.) This motion made many of the same allegations as their motions for reconsideration. However, it also included information relating to, among other things: (1) the draft decision that had been left in the Porters' car; (2) their pending Right-to-Know request; and (3) the BOS's deliberation outside of a public meeting, as allegedly evidenced by a transcript of the July 21, 2014 meeting. (Id. at 1-5.) Additionally, around the same time, the Porters [15] filed a motion seeking the disqualification of all members of the ZBA. (Pls.' Ex. 38 at 1-4.) This motion was based primarily upon the allegedly improper draft decision. (Id.)

Additionally, the Porters were contacted by a BOS member-then BOS Chair Kerr-outside of the public meetings. Specifically, on October 31, 2014, the Porters were standing on a boat ramp observing the construction at the Aulets' property. Kerr noticed the Porters as he was driving past the property. He pulled over his pickup truck, rolled down the window and yelled to the Porters, "Hey! See any more new violations?" The Porters responded that they could not discuss the issue with him.

The ZBA held a meeting on November 13, 2014, to address the Porters' pending motions. (Pls.' Exs. 50-51.) Neither the Porters, nor their attorney, were permitted to speak at this meeting. (See Pls.' Ex. 50.) At the meeting, the ZBA first addressed the Porters' motion seeking the disqualification of all members of the ZBA; after a brief discussion, none of the ZBA members chose to disqualify themselves. (Pls.' Ex. 50 at 4-7.) Next, the ZBA discussed the Porters' motion to reconsider the ZBA's decision relating to their July 9 appeal. (Id. at 8.) After this discussion, but prior to a vote of ZBA members, Mitchell stated, "I think it's plain that the board is inclined not to grant the motion . . . ." (Id.) He then read aloud a draft decision that he had prepared denying the Porters' motion, which the ZBA subsequently adopted. (Id. at 8-9.) The ZBA also addressed the Porters' motion to reconsider the ZBA's decision relating to their August 14 appeal at the meeting. (Id. at 9-17.) After a lengthy discussion, the ZBA voted to deny the Porters' motion. (Id. at 17.) Mitchell then read aloud another draft decision, which the ZBA adopted. (Id. at 17-19.) The ZBA issued written notices of decision on the Porters' motions to reconsider that same day. (Pls.' Exs. 48-49.)

[16] The following day, November 14, 2014, the Porters filed another Right-to-Know request (the "second Right-to-Know request") with Mitchell. (Pls.' Ex. 2 at 1.) The second Right-to-Know request specifically addressed the Porters' concerns that they had not previously been provided with the two draft denial decisions that had been read aloud and adopted at the November 13, 2014 ZBA meeting, or with any correspondence related thereto. (Id. at 1-2.) Additionally, the second Right-to-Know request sought the disclosure of certain documents originally sought in the first Right-to-Know request which had yet to be produced, and again requested that a privilege log be produced.13 (Id. at 2.)

The Town produced a privilege log on or about November 21, 2014. (Pls.' Ex. 3.) For the withheld documentation, this log provided: the date the documentation was created, the name(s) of the person(s) who created or sent the documentation, and the name(s) of the person(s) who received the documentation. (Id.) Additionally, under a category labeled "CONTENT," each of the entries indicated that the documentation was "[c]ommunication from or to town attorney relating to Porter appeals." (Id.) In response, the Porters sent a letter, dated November 22, 2014, to Mitchell requesting that additional information about the content of the documents be provided, and challenging the withholding of certain documents. (Pls.' Ex. 4.)

It was not until February 6, 2015, that the Town produced a more detailed privilege log. (Pls.' Ex. 5.) This log indicates that the withheld documents contained: (1) various "[r]equest[s] for legal advice"; (2) "[r]equest[s] for guidance and dialogue [regarding] response"; (3) the provision of "[l]egal advice [regarding various issues]"; (4) [17] the "[f]orwarding of legal advice"; (5) "[d]ialogue/legal advice relating to continuing October meeting"; and (6) an "[i]nquiry [regarding the] first appeal."

II. Analysis

The Porters argue that the defendants violated the Right-to-Know Law, and that they are entitled to various remedies for those violations. The defendants and the Aulets disagree. The court must, therefore, determine: (A) whether the defendants violated the Right-to-Know Law; and (B) what remedies, if any, are appropriate.

"Resolution of this case [will] require[] [the court] to interpret several statutory provisions, including certain provisions of the Right-to-Know Law." CaremarkPCS Health, LLC v. N.H. Dep't of Admin. Servs., 167 N.H. 583, 586-87 (decided Apr. 30, 2015) (slip. op. at 3) (quotation omitted). When interpreting the law, the court "appl[ies] the ordinary rules of statutory construction . . . and first look[s] to the plain meaning of the words used." Ettinger v. Town of Madison Planning Bd., 162 N.H. 785, 788 (2011) (citing Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996)). It "interpret[s] legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." CaremarkPCS Health, LLC, 167 N.H. at 587 (slip. op. at 4) (quotation omitted). It must "also interpret a statute in the context of the overall statutory scheme and not in isolation." Id. Accordingly, the court resolves questions under the Right-to-Know Law in light of the statute's purpose. Ettinger, 162 N.H. at 788; see RSA 91-A:1 (2013) (statement of purpose). Thus, the court "construe[s] provisions favoring disclosure broadly, while construing exemptions narrowly." 38 Endicott St. N., LLC v. State Fire Marshal, N.H. Div. of Fire Safety, 163 N.H. 656, 660 (2012). Where the dispute [18] concerns the disclosure of information, the burden of proof is on the party seeking nondisclosure. CaremarkPCS Health, LLC, 167 N.H. at 587 (slip. op. at 4)

A. ALLEGED VIOLATIONS

The Porters assert that the following constitute violations of the Right-to-Know Law: (1) Huff's and Shambaugh's July 1, 2014 e-mails to the ZBA; (2) the ZBA's circulation of the draft decisions denying the Porters' appeals; (3) the Town's withholding of certain documents; and (4) the BOS's non-public discussion of the Porters' application. The court will address each argument in turn.

1. Huff's and Shambaugh's July 1, 2014 e-mails

The Porters first argue that Huff's and Shambaugh's July 1, 2014 e-mails to the ZBA violated RSA 91-A:2 (2013), maintaining that these e~mails effectively constituted an unnoticed meeting. (Pls.' Tr. Mem. at 4.) Alternatively, they argue that these e-mails violated RSA 91-A:2-a (2013). (Id. at 7.) In response, the defendants assert that Huff's and Shambaugh's actions were proper because the e-mails did not constitute a meeting under the statute, and were not sent for the purpose of circumventing the Right-to-Know Law. (Defs.' Tr. Mem. at 5, 6.) The Aulets agree with the defendants. (Intervs.' Tr. Mem. at 3.)

Under the Right-to-Know Law, "[s]ubject to the provisions of RSA 91-A:3, all meetings . . . shall be open to the public." RSA 91-A:2, II (2013). As the New Hampshire Supreme Court has recognized, "the Right-to-Know Law is a statute mandating that all public bodies open their meetings to the public unless one of several specific, enumerated exceptions or exclusions applies." Ettinger, 162 N.H. at 790. Here, the defendants and the Aulets do not argue that one of the exceptions in RSA 91-A:3 (2013) [19] applies; rather, they contend that the July 1, 2014 e-mails did not constitute a meeting and, thus, do not need to be publicly noticed.

The term "meeting" is defined in RSA 91-A:2. The statute states, in relevant part:

For the purpose of this chapter, a "meeting" means the convening of a quorum of the membership of a public body, as defined in RSA 91-A:1-a, VI, or the majority of the members of such public body if the rules of that body define "quorum" as more than a majority of its members, whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously, subject to the provisions set forth in RSA 91-A:2, III, 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.14 Thus, here, the e-mails would constitute a "meeting" if a quorum of the ZBA convened in a manner that allows contemporaneous communication to discuss a matter under the ZBA's "supervision, control, jurisdiction, or advisory power." (Id.)

The court agrees with the Porters that the e-mail chain stemming from Shambaugh's e-mail to Huff, Mr. Porter, and all members of the ZBA constituted a meeting under RSA 91-A:2, I. First, the parties do not dispute that, as the e-mails were sent to the entire ZBA, the quorum requirement was met.

Second, although the defendants and the Aulets argue that there was no contemporaneous communication among board members because none of the other ZBA members replied to Shambaugh's e-mail, they misconstrue what the statute requires. The key to the contemporaneous communication requirement is the ability to communicate contemporaneously-as opposed to whether contemporaneous communication occurred. Here, regardless of whether any ZBA members replied to Shambaugh's e-mail, neither the Aulets nor the defendants assert that e-mail is not a [20] form of contemporaneous communication. See Attorney General's Mem. on Right-to-Know Law 8 (March 20, 2015) (cautioning public bodies against inadvertently meeting by e-mail).

Third, construing the statute broadly, 38 Endicott St. N., LLC, 163 N.H. at 660, Shambaugh's e-mail was sent to all ZBA members to discuss a matter under the ZBA's "supervision, control, jurisdiction, or advisory power." RSA 91-A:2, I. The e-mails explained that Mr. Porter would be giving the ZBA members a "packet," and cautioned them to destroy it. (Pls.' Ex. 12 at 1.) Shambaugh also commented on the "packet" by stating "[Mr. Porter] should be aware that it is inappropriate to petition a judicial body without going through the proper procedures!" (Id.) Additionally, Huff informed the ZBA members that she had instructed the office staff to "confiscate" the Porters' filing. (Id.) These e-mails plainly discuss what was, in fact, an application for the appeal of an administrative decision-something within the control of the ZBA.

The court is not persuaded by the defendants' and the Aulets' arguments that there was no "meeting" because the ZBA could not have had jurisdiction over a yet-to-be-filed appeal. Even assuming no jurisdiction could be had, jurisdiction is not necessarily required. In fact, municipal zoning boards frequently hold public meetings and hearings to discuss whether they have jurisdiction over an issue before they address the merits of an appeal-something which the ZBA also did here. As noted above, these e-mails commented on an application for the appeal of an administrative decision. Regardless of whether a ZBA has jurisdiction over the appeal, such applications are certainly within the control of the ZBA. In light of the statute's purpose, Ettinger, 162 N.H. at 788, the court cannot interpret RSA 91-A:2, I, so narrowly as to permit zoning [21] board members to privately discuss appeals that are soon to be before them. See RSA 91-A:1.

Accordingly, the court determines that the e-mail chain stemming from Shambaugh's July 1, 2014 e-mail to the ZBA constitutes a violation of the Right-to-Know Law because it was a meeting not properly noticed under RSA 91-A:2. In view of this finding, the court need not address the Porters' argument that the e-mails violated RSA 91-A:2-a, which prohibits the use of communications outside of meetings to "circumvent the spirit and purpose" of the Right-to-Know Law.

2. Circulation of draft decisions denying the Porters' appeals

The Porters next argue that the ZBA's circulation of the two draft decisions denying the Porters' motions for rehearing violated RSA 91-A:2, maintaining that these drafts effectively constituted an unnoticed meeting. Additionally, they assert that circulation of the drafts violated RSA 91-A:2-a because they were communications of prepared findings made outside of a public meeting, which were "used to circumvent and violate the spirit and purpose" of the Right-to-Know Law. (Pls.' Tr. Mem at 8-9.) In response, the defendants argue, without citation, that the circulation of the draft decisions did not constitute an unnoticed meeting, and was not otherwise improper. (Defs.' Tr. Mem. at 9.) The Aulets agree with the defendants. (Intervs.' Tr. Mem. at 5.)

Assuming without deciding that the circulation of draft decisions does not constitute a "meeting" under the Right-to-Know Law, the court finds that the circulation of draft denials constituted "[c]ommunications outside a meeting . . . used to circumvent the spirit and purpose" of the Right-to-Know Law in violation of RSA 91-A:2-a. The express 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 [22] accountability to the people." RSA 91-A:1. The court finds that, here, the draft denials served to notify ZBA members how Shambaugh planned to vote. The drafts also solicited their respective supporting votes. These draft decisions were prepared by Mitchell-town counsel-at the direction of Shambaugh-the ZBA chair. When circulated to the entire ZBA, members were aware that Mitchell drafted the documents after speaking with Shambaugh. (Pls.' Ex. 41 ¶ 4.) Additionally, they were informed that the drafts were Mitchell's "suggested decision for the [ZBA] to adopt." (Pls.' Ex. 44.) This manner of circulation effectively indicated Shambaugh's intent to deny the Porters' motions. Additionally, the content and format of the draft decisions are cause for concern. Both draft denials contained signature lines naming each board member individually. These could be, and in fact were, reasonably interpreted as a solicitation for a specific decision on a vote. (Pls.' Exs. 43, 45; Tr. Audio, April 14, 2015 at 1:43:03-1:45:24.) From this, it is clear that the draft denials were, in this case, used to circumvent the purpose of the Right-to-Know Law by removing the public's access to the ZBA's discussions.

Accordingly, the court determines that the circulation of the draft denial decisions in the instant case constitutes a violation of RSA 91-A:2-a because they were "[c]ommunications outside a meeting . . . used to circumvent the spirit and purpose" of the Right-to-Know Law.

3. Withholding of documents

Next, the Porters argue that the Town's withholding of certain documents violated RSA 91-A:4 (2013). (Pls.' Tr. Mem. at 15.) Specifically, they assert that the following documents should have been timely disclosed, pursuant to RSA 91-A:4: (i) BOS meeting notes (Pls.' Ex. 54); (ii) Kerr's redline notations to meeting minutes [23] (Pls.' Exs. 21, 56); (iii) draft decisions and packet materials (Pls.' Exs. 43, 45); (iv) documents withheld as privileged (see Pls.' Ex. 5); and (v) Selectmen e-mails. The court will address each classification of documents in turn.

i. BOS meeting notes

The Porters first argue that certain requested BOS meeting notes were not produced until February 3 and 10, 2015. They maintain that these public documents were not exempt under RSA 91-A:5, VIII-IX (Supp. 2014), and that they should have been produced when first requested. (Pls.' Tr. Mem. at 16.) The defendants counter, asserting that the failure to disclose the documents earlier does not constitute a violation of the Right-to-Know Law because the "omission was [due to] a good faith memory failure."15 (Defs.' Tr. Mem. at 12.) The Aulets do not raise arguments on the issue.

The court agrees with the Porters-and apparently also the defendants-that these documents should have been timely disclosed. RSA 91-A:4 states, in relevant part:

Every citizen . . . 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.

RSA 91-A:4, I. Thus, any "governmental records" not meeting an exemption or other statutory exception must be disclosed. The term "governmental records" is defined by the Right-to-Know Law as "include[ing] any written communication or other information . . . received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body." RSA 91-A:1-a, [24] III (2013). The meeting notes at issue here plainly meet the definition of "governmental records" because they were arranged to help the BOS prepare for their upcoming public meetings, and because they were sent to and received by a quorum of its members. Id.

The court is not persuaded by the defendants' argument that the failure to timely disclose these documents does not constitute a violation of the Right-to-Know Law because the "omission was [due to] a good faith memory failure." (Defs.' Tr. Mem. at 12.) The defendants did not cite, nor could the court find, any provision of the Right-to-Know Law indicating that a public body's failure to adhere to the law is permissible if done in good faith. However, as the nature of the violation is relevant to the Porters' requests for certain remedies, the court will consider the defendants' arguments on this issue in the section of this order addressing those requests.

Accordingly, the court determines that the BOS meeting notes constitute "governmental records," and that they should have been timely disclosed pursuant to RSA 91-A:4. Further, as the defendants do not claim that the BOS meeting notes were exempt from disclosure, the court need not address the Porters' argument that the notes fail to meet the exemptions listed in RSA 91-A:5, VIII-IX.

ii. Kerr's redline notations to meeting minutes

The Porters next argue that certain edits to draft meeting minutes were not produced until sometime after the Porters filed this action. They maintain that these public documents were not exempt under RSA 91-A:5, IX, and that they should have been produced when first requested. (Pls.' Tr. Mem. at 16-17.) The defendants do not argue that these edits were not "governmental records." Further, they do not assert that they meet an exemption listed in RSA 91-A:5. Instead, they argue that "Selectman Kerr [25] did not even think to produce these documents in response to the Right[-]to[-]Know request." (Defs.' Tr. Mem. at 13.) The Aulets do not take a position on the issue.

Because the defendants effectively concede that Kerr's redline notations were governmental records, and because they do not argue that the documents were exempt from disclosure, the court finds that the Town's failure to timely disclose them constituted a violation of RSA 91-A:4, I. The court is not persuaded by the defendants' argument that "Selectman Kerr did not even think to produce these documents in response to the Right[-]to[-]Know request." (Defs.' Tr. Mem. at 13.) The defendants did not cite, nor could the court find, any provision of the Right-to-Know Law indicating that a public body's failure to adhere to the law is permissible if done for this reason. However, as with the defendants' arguments relating to the BOS meeting notes, the court will consider the defendants' arguments on this issue in the section of this order addressing the Porters' requests for certain remedies because the nature of the violation is relevant to those issues.

iii. Draft decisions and packet materials

The Porters next argue that draft denial decisions and certain ZBA packet materials were either not produced until February of 2015, or were not produced at all. Specifically, the Porters assert, among other things, that: (1) although the second page was produced in November of 2014, the first page of the packet materials for October 9, 2014 were not produced until February 24, 2015; (2) the draft decision on the Porters' motion to reconsider their August 11 appeal was not produced until February 24, 2015, even though it was circulated along with the packet materials for the October 9, 2014 meeting; and (3) although a copy of the draft decision on the Porters' motion to reconsider their July 9 appeal was left in their car, the defendants' asserted attorney-client [26] privilege, and it was therefore, never effectively produced. (Pls.' Tr. Mem. at 16-18; Parties' Stip. Regarding Offer of Proof of testimony from H. Boone Porter, III ¶¶ 2-4.) The defendants concede that the packet notes should have been fully disclosed;16 however, they maintain that the draft decisions were attorney-client privileged-at least until being read into the record at the November 13, 2014 ZBA meeting. The defendants make no arguments that the draft decisions are still subject to attorney-client privilege. (Defs.' Tr. Mem. at 11-12; Defs.' Resp. Pls.' Mot. In Camera Review ¶¶ 22-26.)

As noted above, the Right-to-Know Law guarantees "every citizen the right to inspect and to copy" all public records "except as otherwise prohibited by statute." Prof'l Fire Fighters of N.H. v. N.H. Local Gov't Ctr., 163 N.H. 613, 614 (2012) (quoting RSA 91-A:4, I (brackets and ellipses omitted)). The law contains an exemption for "confidential information"; this exemption includes information protected by attorney-client privilege. Id.; RSA 91-A:5, IV. However, the protection of the privilege can be "waived by the client or his legal representatives." Prof'l Fire Fighters of N.H., 163 N.H. at 615 (citation omitted).

The court need not decide whether the draft decisions were protected by attorney-client privilege because the defendants concede that any protection would have been waived when the drafts were read aloud at the November 13, 2014 ZBA meeting. (See Defs.' Tr. Mem. at 11 ("[T]he draft decisions were properly withheld until the board released them at the [ZBA]'s November 13, 2014 meeting . . . .").) Therefore, as these documents were not produced, if at all, until several months later, the court finds that the failure to disclose constitutes a violation of RSA 91-A:4. Further, even if the [27] defendants had not conceded the waiver issue, the court would agree that the privilege was waived-at the latest-when the draft decisions were read aloud at the November 13, 2014 ZBA meeting. At that time, the contents of the draft decisions were communicated to the attendees of a public ZBA meeting where members of the public were, in fact, present; this is sufficient to constitute waiver of the privilege. Cf. Prof'l Fire Fighters of N.H., 163 N.H. at 615-16 (holding that there was no waiver where communications were made at open public meeting because no members of the public were present).

Accordingly, to the extent that these documents have not been produced, the court orders the Town to produce the documents.

iv. Documents withheld as privileged

The Porters next argue that they are entitled to the disclosure of various documents, which the defendants assert are protected by attorney-client privilege. (Pls.' Tr. Mem. at 19; see Pls.' Ex. 5.) In support of this argument, they assert that these documents are all: (a) "communications made to persons outside the 'control group'"; (b) "communications which were forwarded or copied to third parties, thereby waiving privilege"; (c) "communications for which the privilege was waived by placing the communication at issue"; or (d) "communications which do not qualify as 'confidential communication[s].'" (Pls.' Tr. Mem. at 19-20.) Additionally, the Porters assert that the privilege log produced is insufficient with respect to certain other communications, and requests that the court also review these documents in camera. (Pls.' Mot. In Camera Review ¶¶ 27-29.) The defendants counter each of the Porters' arguments, but agreed to submit the documents for in camera review. (Defs.' Tr. Mem. at 11; Defs.' Resp. Pls.' Mot. In Camera Review ¶¶ 6-23.)

[28] As noted above, the Right-to-Know Law exempts "confidential information" from disclosure. RSA 91-A:5, IV. "The burden of proving whether information is confidential rests with the party seeking to avoid disclosure." Prof'l Fire Fighters of N.H., 163 N.H. at 614. The exemption for "confidential information" includes information protected by attorney-client privilege. Id. at 614-15. The New Hampshire Supreme Court has articulated the attorney-client privilege as follows:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser unless the protection is waived by the client or his legal representatives.

Id. at 615 (citation omitted). "A communication is confidential if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Id. (quotation, citation, and internal quotation marks omitted). "If the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person, then the communication will be protected from disclosure." Id. (quotation omitted). This privilege extends to communications:

(1) between the client or his or her representative and the client's lawyer or the lawyer's representative, (2) between the client's lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

[29] N.H. R. Ev. 502 (b). "A 'representative of a client' is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client." N.H. R. Ev. 502 (a)(2).

a) Control Group

The Porters first argue that various e-mail exchanges between Graham and Mitchell occurring from August 1, 2014 to September 15, 2015 are not privileged. They maintain that Graham is not part of the relevant "control group"-and is, thus, not Mitchell's client. According to the Porters, the relevant "control group" is the ZBA and its representatives, which is the only board that had jurisdiction over the Porters' cases at that time. In response, the defendants argue that Graham is within the "control group" because Mitchell's client is the Town-as opposed to a particular local board.

Courts have adopted various tests to determine which individuals make up the "client" in the corporate client context. These tests include: the control group test, the blanket ban, the managing/speaking test, the alter ego test, and the balancing test. See Totherow v. College, Hillsborough County Superior Court, South, No. 2005-CV-296 at *3-6 (Order, Lynn, J.) (Feb. 20, 2007) (identifying and explaining the various tests). Here, the parties agree that the court should apply the control group test. (See Pls.' Trial Mem. at 19; Defs.' Resp. Pls.' Req. In Camera Review ¶¶ 6-10.) In Totherow, the trial court described this test as follows:

Control Group Test: This test is the narrowest and includes within its coverage the fewest number of organization employees. The control group is defined as: "Those top management persons who have the responsibility of making final decisions and those employees whose advisory roles to top management are such that a decision would not normally be made without those persons' advice or opinion or whose opinions in fact form the basis for any final decision." Fair Automotive Repair, Inc. v. Car-X Serv. Svs., Inc., 471 N.E.2d 554, 560 (Ill. App. 1984). See Klier v. Sordoni Skanska Construction Co., 766 A.2d 761, 766-70 (N.J. App. 2001).

[30] Id. at *3-4 (brackets and footnote omitted).

The court has reviewed the disputed documents in camera. After considering this evidence in light of the parties' arguments, the court finds that these communications between Graham and Mitchell are subject to attorney-client privilege. Contrary to the Porters' contention, these communications relate to Mitchell's representation of the BOS. The parties do not dispute that Graham is the BOS's representative or that she is authorized to obtain legal services on the BOS's behalf. See 13 P. Loughlin, New Hampshire Practice: Local Government Law § 294 (3d ed. 2011) (describing a town's administrative assistant as "a representative of the board of selectmen"); (see also Pls.' Ex. 8 at 2 (administrative assistant job description).) Thus, regardless of whether the court applies the "control group" test to the Town as a whole, or to the applicable board, the communication is subject to privilege.17 N.H. R. Ev. 502 (b) (extending privilege to confidential communications "between the client or his or her representative and the client's lawyer or the lawyer's representative").

b) Waiver by Disclosure to Third Party

The Porters next argue that certain e-mail communications constitute waivers of attorney-client privilege. Specifically, they contend that e-mails relating to ZBA matters that were forwarded or copied to Graham constitute waivers because Graham is not within the "control group" on ZBA matters, and that e-mails from Mitchell forwarded to others constitute waivers because it is a "discussion[] regarding attorney authored documents." (Pls.' Trial Mem. at 21-22.) In response, the defendants argue that Mitchell's client is the Town as a whole, and that Graham is within the Town's "control [31] group" on ZBA matters, regardless of whether she "performs few direct services for the [ZBA]." (Defs.' Resp. Pls.' Mot. In Camera Review ¶ 8.) They also maintain that the forwarding of communications with Mitchell does not constitute waiver. (Id. at 11-18.)

The court has reviewed the disputed documents in camera. After considering this evidence in light of the parties' arguments, the court finds that the e-mails that were forwarded or copied to Graham18 do not constitute waivers because Graham is a representative of those within the "control group" of the Town. In applying the "control group" test, the court views the Town as a single entity, as opposed to a collection of various departments or boards. The Porters did not cite, and this court could not find, any case where a court applied the attorney-client privilege to a single municipal board to the exclusion of others that are part of the same municipal entity. The court is not persuaded by the Porters' implicit argument that this circumstance is akin to those where attorneys represent wholly independent federal agencies. See Restatement (Third) of Law Governing Lawyers § 97 cmt. c (2000).

The court further finds that that the e-mails forwarding communications with Mitchell do not constitute waivers of the privilege. The Porters' argument that these e-mails constitute waivers is founded on the assumption that the e-mails contained comments from Huff to Shambaugh discussing Mitchell's advice. However, no such comments were made; rather, the e-mails simply forwarded a communication from Mitchell to Shambaugh. See also N.H. R. Ev. 502 (b) (extending privilege to confidential communications "between the client and a representative of the client").

[32] c) At-issue Waiver

The Porters next argue that certain e-mails should be disclosed because the Town waived the attorney-client privilege by placing the communication at issue in the instant litigation. Specifically, they maintain that the Town put e-mails relating to the two draft denial decisions at issue by asserting that it circulated the decisions at the direction of counsel. The Town counters, asserting that it did not put these documents at issue.

The New Hampshire Supreme Court has explained the waiver of privilege in this context as follows:

The attorney-client privilege is not absolute. Furthermore, a client may waive protection of the privilege, either expressly or impliedly. This court has recognized the concept of implied waiver. Implied waiver occurs when the asserting party has put the otherwise privileged communications at issue in the present dispute. . . . [W]e [have] limited the extent of an at-issue waiver of the attorney-client privilege to circumstances in which the privilege-holder injects the privileged material itself into the case.

Petition of Dean, 142 N.H. 889, 890 (1998) (quotation, citations, and internal quotation marks omitted). To constitute waiver, the privilege-holder must have placed the communication at issue, "such that the information is actually required for resolution of the issue." Bennett v. ITT Hartford Grp., Inc., 150 N.H. 753, 761 (2004) (citation omitted).

The court has reviewed the disputed documents in camera. After considering this evidence in light of the parties' arguments, the court finds that the Town has not placed these e-mails at issue. While the circulation of the draft decisions to the ZBA is at issue, the communications from counsel about the draft decisions are not. Although Huff testified that she circulated the documents at Mitchell's direction, the Town has not asserted this as a defense. Further, to the extent that the e-mails relate to the draft decisions, the e-mails are not needed for a resolution of whether the circulation of the [33] draft denial decisions constituted a violation of the Right-to-Know Law; indeed, the court has already done so without relying on these documents.

d) Confidentiality

The Porters next argue that that certain e-mails should be disclosed because they are not confidential communications. Specifically, they assert that Gaisser's communications with the New Hampshire Municipal Association ("NHMA") regarding the 30-day appeal period were not confidential because: (1) Gaisser did not believe that his communications were for the purpose of seeking legal advice; (2) Gaisser did not consider NHMA to be his legal representative; and (3) Gaisser believes that he may have shared the information with certain friends he has in another town. In response, the Town contends that, despite Gaisser's beliefs, he did contact NHMA to obtain legal advice, thereby creating an attorney-client relationship. It maintains that the Town holds the privilege, and that Gaisser is not able to waive it.

The court has reviewed the disputed documents in camera. After considering this evidence in light of the parties' arguments, the court finds that the Town properly withheld these documents as privileged. First, Gaisser's communications with the NHMA created an attorney-client relationship. The New Hampshire Bar Association Ethics Committee (the "Committee") has addressed the attorney-client relationship in this context-i.e., where the attorney is employed by an association that provides legal services to its members and where the attorney is contacted by an individual who is part of a member organization. There, the Committee stated, in relevant part:

The Committee believes, though, that at least a limited attorney/client relationship is created when a telephone inquiry is made from a constituent of an association member to the [] attorney. Under such circumstances, the constituent is calling for the purpose of obtaining legal advice. The [] attorney, in return, routinely responds to such inquiries [34] with a view towards providing legal counsel in accordance with his employment agreement with the association and the association's representations about membership benefits to its members. The reasonable expectations of the parties and common sense would dictate, then, that an attorney/client relationship is created when such a telephone call is made, even if such a relationship did not exist before.

N.H. Bar. Assoc. Ethics Comm. Advisory Op. #1994-95/6 at 3 (June 14, 1995). From this, it is apparent that, regardless of Gaisser's articulation of his beliefs regarding the attorney-client relationship, he contacted NHMA in order to obtain legal advice, and received legal advice in response. This created an attorney-client relationship, even if that relationship is somewhat limited.

Second, as there was an attorney-client relationship, it follows that any confidential communications made in relation to that purpose are subject to attorney-client privilege. Here, there is no dispute that the communications were made in relation to this purpose.

Third, Gaisser and the NHMA attorney made these communications in confidence. Although Gaisser testified that he did not believe NHMA was his legal representative, his testimony did not indicate that he lacked an expectation of confidentiality. (Tr. Audio, April 14, 2015 at 1:59:30-2:01:29.) In fact, in response to questioning by the Porters' counsel about his expectations of confidentiality, Gaisser stated something to the effect of "[the e-mail] says right on it that it is [confidential]." (Id. at 2:01:13-2:01:32.)

Fourth, assuming without deciding that Gaisser is capable of waiving the privilege on the Town's behalf, the court finds that he did not do so. The evidence presented at trial does not support a determination that the privilege has been waived. Although Gaisser admitted on cross-examination that he "might have" discussed his communication with NHMA with third parties, he was unsure. (Id. at 2:01:31-2:01:41.) Gaisser essentially testified that it was possible he discussed the issue with friends; this, without more is insufficient to establish waiver.

e) Insufficient Information

The Porters next argue that the Town failed to present sufficient information in its privilege log with respect to certain other communications. In response, the Town argues that it produced a sufficient privilege log. However, the Porters do not request any relief other than that the court conduct an in camera review of these documents. Because the court has already reviewed these documents in camera, and made determinations regarding the privileged status of these documents, the court need not address the sufficiency of the privilege log.

f) Miscellaneous

The Porters also appear to contest whether the Town is entitled to assert that other communications are privileged. (See Pls.' Notification Resp. Ct.'s June 4, 2015 Order at Prayer ("Plaintiffs . . . respectfully request that all documents withheld by Defendants based on claims of privilege be produced . . . ."); (Pls.' Mot. In Camera Review ¶¶ 12, 16, 22, 26, 29 (specifically listing which communications relate to each of the plaintiffs' arguments, but leaving several communications uncategorized)). The court has reviewed the disputed documents in camera. After considering this evidence in light of the parties' arguments, the court finds that the Town properly withheld these documents as privileged.

Accordingly, the court finds that the Town properly withheld as privileged each of the communications provided for in camera review. The court, therefore, determines that there was no violation of the Right-to-Know Law on this basis.

[36] v. Selectmen e-mails

The Porters also argue that the defendants failed to produce any e-mails pertaining to the BOS. Citing to Kerr's deposition testimony, they maintain that Kerr had sent his edits to meeting minutes to the Town via e-mail, and argue that this e-mail should have been produced. (Pls.' Tr. Mem. at 23-24.) In response, the defendants assert that they could not produce any BOS e-mails because no relevant BOS e-mails existed. They maintain that, contrary to the Porters' contention, Kerr did not send his edits to the Town via e-mail. (Defs.' Tr. Mem. at 12-13.)

The court agrees with the Porters that e-mails between selectmen would be subject to disclosure absent the application of an exemption under RSA 91-A:5. However, the court agrees with the defendants, and determines that no BOS e-mails exist to be produced. In support of their argument, the Porters rely upon Kerr's deposition testimony, which reads, in relevant part:

[Mitchell]: The plaintiffs -- I believe I'm recalling it correctly from the pleading that was filed -- complain that in response to the Right-To-Know request they made that you personally haven't produced any e-mails or other writings. They are correct, aren't they, that you haven't produced anything . . .

[Kerr]: Correct.

[Mitchell]: . . . other than the two sets of redlined minutes that [their attorney] mentioned, and I'll get back to in a minute.

[Kerr]: Yes.

[Mitchell]: You haven't produced anything else?

[Kerr]: That's right.

[Mitchell]: Is there anything else to produce?

[Kerr]: Nothing.

[Mitchell]: And did you do a good faith search? Let me ask you this first. Are you in the habit of utilizing e[-]mail with the other Selectmen?

[Kerr]: No, we rarely do.

[Mitchell]: And based on what you found and based on what you recall did you participate in any e[-]mail communication that had anything to do with the Porter[s'] complaint about the Aulets?

[37] [Kerr]: No.

[Mitchell]: With the exception of the redlined minutes?

[Kerr]: No; no.

(Pls.' Ex. 57A at 15; see also Pls.' Ex. 57B.)19 Although the implication from Mitchell's questioning could be that he was under the impression that there may be an e-mail sending the edited minutes to the Town, Kerr corrected that misimpression. From his testimony, it is apparent that Kerr did not e-mail the Town or other selectmen regarding the Porters' cases.

Accordingly, the court determines that there was no violation of the Right-to-Know Law on this basis.

4. The BOS's non-public discussion of the Porters' application

The Porters next argue that the BOS violated RSA 91-A:2 by meeting and/or conferring outside of a properly noticed public meeting. (Pls.' Tr. Mem. at 24.) In support of their argument, the Porters rely upon the lack of reference to the BOS's discussion of the Porters' application in the July 7, 2014 BOS meeting minutes. (Id. at 26-28.) The defendants counter, asserting that, although not reflected in the meeting minutes, the BOS discussed the issue briefly at the end of their July 7, 2014 meeting. (Defs.' Tr. Mem. at 4.) They maintain that, as the July 21, 2014 public meeting was beginning, Kerr confirmed with the remaining selectmen that nothing had changed since their last discussion. (Id.) The Aulets agree with the defendants. (Intervs.' Tr. Mem. at 7.)

As noted above, under the Right-to-Know Law, "[s]ubject to the provisions of RSA 91-A:3, all meetings . . . shall be open to the public." RSA 91-A:2, II. A meeting requires a quorum of the public body convened in a manner that allows [38] contemporaneous communication to discuss a matter under the ZBA's "supervision, control, jurisdiction, or advisory power." (Id.) RSA 91-A:2, I. These meetings must meet certain requirements listed in RSA 91-A:2, II, including requirements regarding the keeping of minutes. Specifically, the statute states that "[m]inutes of all such meetings, including names of members, persons appearing before the public bodies, and a brief description of the subject matter discussed and final decisions, shall be promptly recorded . . . ." RSA 91-A:2, II.

It is readily apparent from the meeting minutes, read in conjunction with the transcript, that the BOS had discussed the Porters' arguments-likely even reaching a decision-between the end of the July 7, 2014 public meeting and the beginning of the July 21, 2014 BOS public meeting. The parties agree that the July 7, 2014 meeting minutes do not reflect any substantive discussion of the Porters' arguments amongst members of the BOS. Additionally, the court specifically found that no later discussion occurred at that meeting. (See above n. 4.) Then, once the July 21, 2014 public meeting began, the BOS immediately represented that it "was not inclined to hold a [p]ublic [h]earing to discuss [the Porters' arguments concerning the Aulets' construction.]" (Pls.' Ex. 19 at 1; Pls.' Ex. 20 at 1.) From these established facts, logic requires a determination that at least some substantive discussion-if not a final decision-had occurred between public meetings. This determination is supported by the transcript of the July 21, 2014 meeting. (Pls.' Ex. 19 at 2 (Kerr stating "[w]e've talked about it. I've talked with other people around town about it, and you know, these people aren't going to live there.").) Additionally, the court's determination is further supported by the fact that, in his deposition, Kerr testified that, before the start of the July 21, 2014 meeting, he had asked the other BOS members if "anything [has] changed" since last discussing the Porters' [39] arguments. (See Pls.' Ex. 57A at 17.) As there had been no prior public discussion of the issue, it is reasonable to infer that a discussion amongst these BOS members-a quorum-had, in fact, already taken place between the two public meetings.

Accordingly, the court determines that the BOS's private discussion regarding the Porters' application constitutes a violation of RSA 91-A:2; it was a meeting and all meetings of the BOS must be open to the public.

B. REMEDIES SOUGHT

The court next considers which remedies the Porters are entitled to, due to the Town's violations of the Right-to-Know Law discussed above. The Porters argue that they are entitled to: (1) invalidation of BOS and ZBA decisions; (2) production of the improperly withheld documents; (3) attorney's fees and costs; and (4) an order for remedial training, injunctive relief, and civil penalties. The court will address each argument in turn.

1. Invalidation of BOS and ZBA decisions

The Porters first argue that the decisions of the ZBA and the BOS should be invalidated pursuant to RSA 91-A:8, III (2013). "[A]n order voiding action taken by a public body or agency" is an available remedy for violation of the Right-to-Know Law. ATV Watch, 155 N.H. at 437. RSA 91-A:8, III, explicitly states that "[t]he court may invalidate an action of a public body or public agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation." Id. Because the term "may" is generally interpreted as permissive, the court has discretion in ordering this as a remedy. Lambert v. Belknap Cnty. Convention, 157 N.H. 375, 381 (2008).

[40] Here, the BOS and the ZBA made six decisions in total: (1) the BOS issued the Aulets a building permit; (2) the BOS denied a request to hold a public hearing regarding enforcement of the Aulets' permit; (3) the ZBA denied the appeal of the BOS's issuance of the permit; (4) the ZBA denied the appeal of the BOS's decision not to initiate enforcement proceedings; (5) the ZBA denied the motion to reconsider its decision on the appeal relating to the issuance of the permit; and (6) the ZBA denied the motion to reconsider its decision on the appeal relating to the initiation of enforcement proceedings. The Porters do not appear to argue that the BOS's initial decision granting the Aulets' building permit should be invalidated. (See Pls.' Trial Mem. at 29-30 (arguing only that "[t]he Selectmen's decision not to hold a hearing or to enforce the [z]oning [o]rdinance and building permit should be invalidated . . . .").) The court will first address the BOS decision not to initiate enforcement proceedings. It will then discuss the ZBA decisions in two groups-one relating to the initiation of enforcement proceedings, and one relating to the appeal of the permit issuance.

i. BOS decision regarding enforcement proceedings

Here, as discussed above, the BOS discussed the Porters' arguments relating to the initiation of enforcement proceedings outside of a public hearing in violation of RSA 91-A:2. The court finds that these circumstances justify the invalidation of the BOS's decision on this issue. By requiring meetings to be open to the public except in limited circumstances, the legislature "evinced its intent to allow the public an opportunity to know and scrutinize the actions of its governmental officials." See id. "Public knowledge of the considerations upon which governmental action is based and of the decisions taken is essential to the democratic process." Id. (quoting Carter v. Nashua, 113 N.H. 407, 416 (1973) (brackets omitted)). Thus, the BOS's nonpublic deliberation [41] "contravenes the fundamental 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." Id. (quoting RSA 91-A:1 (internal quotation marks omitted)). Accordingly, the court invalidates the BOS's decision not to initiate enforcement proceedings, and orders the BOS to address the Porters' arguments on this issue at a properly noticed public meeting.

ii. ZBA decisions regarding initiation of enforcement proceedings

Because the court invalidated the BOS decision regarding the initiation of enforcement proceedings, the Porters' arguments seeking invalidation of the ZBA's decisions regarding that BOS appeal are moot. Therefore, the court need not and does not address the issue; it will, instead, next address the ZBA's decisions relating to the issuance of the building permit.

iii. ZBA decisions regarding appeal of issuance of permit

Here, as discussed above, the ZBA violated the Right-to-Know Law by: (i) holding an unnoticed non-public ZBA meeting via e-mail; and (ii) improperly circulating draft ZBA decisions. The court finds that these circumstances also justify the invalidation of the ZBA's decisions relating to the Porters' appeal of the BOS's issuance of the building permit-both its initial decision and its decision on reconsideration. First, as to the decision on the Porters' motion to reconsider, the court found above that the circulation of the draft denial decision constituted a "[c]ommunication[] outside a meeting . . . used to circumvent the spirit and purpose" of the Right-to-Know Law in violation of RSA 91-A:2-a. This is sufficient to justify invalidation of the ZBA's decision on reconsideration. See id. at 381-82 (holding trial court unsustainably exercised its discretion when it refused to invalidate decision where the violation contravened the fundamental purpose [42] of the Right-to-Know Law). Second, as to the initial decision that the appeal of the BOS's issuance of the permit was untimely, although the July 1, 2014 e-mails circulated amongst the ZBA did not discuss the substance of the appeal, the e-mails commented on the Porters and on their planned filing, thereby creating the potential for prejudice. The court finds that these circumstances justify invalidation of the ZBA's initial decision.

Accordingly, the court invalidates the ZBA's decisions regarding the Porters' appeal of the BOS's issuance of the building permit, and orders the ZBA to address the Porters' appeal at a properly noticed public meeting.

2. Production of Documents

The Porters next ask that the court order the Town to produce any improperly withheld documents. The defendants do not dispute that the Right-to-Know Law requires the production of documents improperly withheld. Therefore, the court orders the Town to produce documents found to be improperly withheld as discussed in section A(3) of this order.

3. Fees and Costs

Next, the Porters argue that they are entitled to recover attorney's fees and costs. RSA 91-A:8, I, authorizes the court to award attorney's fees and costs in certain circumstances. This provisions states:

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.

[43] RSA 91-A:8, I. Under the plain language of the statute, a public body is liable for reasonable attorney's fees and costs where: (1) it violates any provision of the Right-to-Know Law; and (2) the plaintiff had to bring the action "in order to enforce compliance with the [law's] provisions" or "to address a purposeful violation of [the law]." Id.; see also ATV Watch v. N.H. Dep't of Res. & Econ. Dev., 155 N.H. 434, 439 (2007). If these two prongs are met, the public body is also liable for reasonable attorney's fees if it "knew or should have known that the conduct engaged in was in violation of [the law.]" RSA 91-A:8, I; ATV Watch, 155 N.H. at 442.

As discussed above, the defendants violated various provisions of the Right-to-Know Law by: (1) holding an unnoticed non-public ZBA meeting via e-mail; (2) improperly circulating draft ZBA decisions; (3) improperly withholding certain documents; and (4) holding an unnoticed non-public BOS meeting. Thus, the first prong of the test has been met.

As to the second prong, the court finds that this action was "necessary in order to enforce compliance with the provisions" of the Right-to-Know Law. First, the Town failed to produce certain documents responsive to the Porters Right-to-Know requests until after litigation began, including, among other things, the BOS meeting notes and the draft denial decisions. Second, the defendants have consistently asserted that their actions were acceptable under the provisions of the law where, in fact, they were not. Thus, it is likely that the defendants would have continued engaging in similar improper behavior had the Porters not brought this action against them.

The court likewise finds that the third prong has been met. First, with respect to the production of certain documents, such as the BOS meeting notes and Kerr's redline notations, the defendants knew that the failure to produce these documents constituted [44] a violation of the Right-to-Know Law. Although the defendants made reasonable, and ultimately successful, arguments regarding the withholding of other documents, in these instances, they made no argument that the documents were properly withheld-they did not even assert that they had an arguable basis for withholding them. (Defs.' Tr. Mem. at 12-13 (asserting only that the failure to produce the BOS meeting notes "was [due to] a good faith memory failure" and that "Selectman Kerr did not even think to produce [his redline notations] in response to the Right[-]to[-]Know request").) Even if the court were to assume that the defendants, in fact, merely forgot to produce these documents, they were well aware that their failure-regardless of its cause-constituted a violation of the law.

Second, with respect to the actions of the ZBA and the BOS, the defendants should have known that their actions were violative of RSA chapter 91-A. Regarding the BOS's actions, the defendants only contested whether the nonpublic discussion occurred-not whether it constituted a violation. Additionally, as to the circulation of the draft decisions, for the reasons discussed in section A(2) above, the defendants should have known that such an obviously improper action constituted a violation of the Right-to-Know Law. Moreover, the defendants have attended training sessions regarding the Right-to-Know Law and the Attorney General has provided them with additional resources. See Attorney General's Mem. on Right-to-Know Law 7-9 (March 20, 2015) (explaining what meetings are, and when they need to be publicly noticed). While, at least arguably, the defendants should not necessarily have known that the July 1, 2014 e-mails were regarding a matter within their "supervision, control, jurisdiction, or advisory power[,]" RSA 91-A:2, the majority of the defendants' violative actions constituted clear violations of the law. Cf. Ettinger, 162 N.H. at 792 (award of attorney's [45] fees not warranted where only issue was one of first impression, and the public body's argument was reasonable). The defendants, therefore, should have known that these actions were well outside the boundaries established by the law.

Accordingly, the court determines that the Porters are entitled to recover reasonable attorney's fees and costs incurred in bringing this action. Because the court found that the Porters are entitled to attorney's fees and costs pursuant to RSA 91-A:8, I, it need not address their argument that they are entitled to collect attorney's fees because of the defendants' alleged bad faith.

4. Remedial Training, injunctive relief and civil penalties

Finally, the Porters request that the court enjoin the defendants from future violations of the Right-to-Know Law and order the Town to participate in remedial training, and impose civil penalties.

The court may . . . enjoin future violations of this chapter, and may require any officer, employee, or other official of a public body or public agency found to have violated the provisions of this chapter to undergo appropriate remedial training, at such person or person's expense.

RSA 91-A:8, V. Because the term "may" is generally interpreted as permissive, the court has discretion in ordering this as a remedy. See Lambert, 157 N.H. at 381.

"The issuance of injunctions, either temporary or permanent, has long been considered an extraordinary remedy." ATV Watch, 155 N.H. at 437-38 (quotation omitted). "An injunction should not issue unless there is an immediate danger of irreparable harm to the party seeking injunctive relief, there is no adequate remedy at law and the party seeking an injunction is likely to succeed on the merits." Id. (quotation, ellipses, and brackets omitted). "The trial court retains the discretion to [46] decide whether to grant an injunction after consideration of the facts and established principles of equity." Id. (quotation and internal quotation marks omitted).

Considering the factual circumstances of this case, the parties' arguments, and equitable principles, the court orders the defendants to participate in remedial training but declines to enjoin future violations. Even assuming that the elements of an injunction have been met, the decision to enjoin future violations is discretionary, id. at 438; here, the court finds that future violations can best be avoided through requiring participation in remedial training. The parties shall submit memoranda within 30 days of the issuance of this order addressing their respective proposals regarding the nature and duration of this remedial training.

Next, RSA 91-A:8, IV, requires the court to impose a civil penalty on any public official or public body found to have violated the Right-to-Know Law in bad faith. RSA 91-A:8, IV ("If the court finds that 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 civil penalty of not less than $250 and not more than $2,000."). Here, although the defendants knew or should have known that their actions violated the Right-to-Know Law, the court does not find that they acted in bad faith. See Porter v. Town of Sanbornton, 150 N.H. 363, 369 (2003) ("Bad faith involves more than mere bad judgment or negligence. Bad faith implies conscious wrongdoing. To carry the heavy burden of proving bad faith . . . one must demonstrate intent to injure or intent to disregard duties." (citations omitted)). The Right-to-Know Law violations committed in this case were based on bad judgment as opposed to bad faith. Accordingly, the court cannot impose civil penalties. RSA 91-A:8, IV.

[47] III. Conclusion

For the foregoing reasons, the Porters' petition is GRANTED in part and DENIED in part. The court finds that the following actions constitute violations of the Right-to-Know Law: (1) circulation of the July 1, 2014 e-mails; (2) circulation of draft decisions denying the Porters' appeals; (3) withholding: the BOS meeting notes, Kerr's redline notations, and the draft decisions and packet materials; and (4) the BOS's nonpublic discussion. The court further finds that the Town's withholding of privileged documents and its failure to produce e-mails from the BOS do not violate the Right-to-Know Law. Accordingly, the court: (A) invalidates the decision of the BOS and the decisions of the ZBA relating to the Porters' July 9 appeal, and orders both boards to address these matters at properly noticed public meetings; (B) orders the defendants to produce any documents found to be improperly withheld, (see above § A(3)); (C) awards reasonable attorney's fees and costs to the Porters; and (D) orders the defendants to participate in remedial training, the details of which will be determined after receipt of the parties' memoranda. It declines to award injunctive relief and impose civil penalties.

Additionally, some of the parties have submitted requests for findings of fact and rulings of law. The court's findings and rulings are set forth in narrative form in this order. See Harrington v. Town of Warner, 152 N.H. 74, 86 (2005); Geiss v. Borassa, 140 N.H. 629, 632-33 (1996). Insofar as the parties' requests for findings and rulings are consistent with this order, they are granted; otherwise, they are denied or determined to be unnecessary.

SO ORDERED.

Dated:    8-14-15       /s/   

Charles Temple

Presiding Justice


1 In their complaint, the Porters assert the following claims: Count I-entitled "Request for Injunctive Relief"; Count II-entitled "Request for Declaratory Relief and for the Invalidation of Actions Taken by the Selectmen and ZBA . . ."; Count III-entitled "Request for In Camera Review and for Retention and Production of Documents"; Count IV-"Request for Attorney's Fees and Costs"; and Count V-entitled "Request for Sanctions and Training." (Compl. ¶¶ 34-95.)

2 As land use secretary, Huff was responsible for, among other things, creating meeting minutes, assisting applicants, and "packet preparation and distribution . . . ." (Pls.' Ex. 8.)

3 Prior to working as the Town's Land Use Secretary, Huff was employed as the Town's administrative assistant-the position which Graham now holds. She held this position from 1998 to 2006. At that time, Shambaugh, the now ZBA Chair, served on the BOS. Although the timing is somewhat unclear, both Huff and Shambaugh stepped down from their positions after becoming engaged in a romantic relationship.

4 When citing to Plaintiffs' Exhibit 57A, the court uses the physical page count of the exhibit for the purposes of its pincites.

5 The court finds that, after the Porters' issue was addressed, they left the public hearing and their request was not discussed again at that meeting. Although several BOS members testified that the BOS discussed the Porters' request again at the end of the July 7, 2014 meeting, the court did not find this testimony to be credible. Yeager testified that the BOS had a brief conversation about the Porters' request, and represented that the BOS specifically discussed that it was not persuaded by the Potters' arguments that the Aulets were building an accessory dwelling. (Tr. Audio, April 14, 2014, 3:11:04-3:13:28.) However, this is unsupported by the minutes. Had such a discussion occurred, it would have been included within the meeting minutes.

6 Plaintiffs' exhibit 19 is a transcript of the July 21, 2014 BOS meeting; plaintiffs' exhibit 20 consists of the BOS's meeting minutes. (Tr. Audio, March 6, 2015 at 1:18:25-1:19:55.)

7 Although not represented in the meeting minutes, Kerr did, in fact, speak to several townspeople about the Aulets' construction between the July 7, 2014 and July 21, 2014 BOS meetings. (Pls.' Ex. 57A at 6 (referencing discussions at the dump and post office).)

8 Although the minutes do not so reflect, the BOS was in agreement that the Aulets' structure was not an 'accessory dwelling.' (Pls.' Ex. 57A at 7.)

9 Although the timing is somewhat unclear, at some point prior to this meeting, Gaisser had inquired with the New Hampshire Municipal Association ("NHMA") regarding whether any state laws require appeals to the ZBA to be limited to a 30-day period. When Gaisser brought NHMA's response to the ZBA's attention, Shambaugh said something to the effect of "it would be wise to delay the conversation until after the Porters' 30-day appeal period has expired." (Tr. Audio, April 14, 2015 at 1:58:31-2:04:13.)

10 The term "includes any decision involving construction, interpretation or application of the terms of the ordinance. It does not include a discretionary decision to commence formal or informal enforcement proceedings, but does include any construction, interpretation or application of the terms of the ordinance which is implicated in such enforcement proceedings." RSA 676:5, II(b).

11 The meeting scheduled for October 9, 2014, was continued at the Porters' request.

12 These persons were: The Aulets, Keith Nelson, Regina Nadeau, Willard Martin, Kerr, Mike Yeager, Graham, Jennifer Wright, Shambaugh, James Mykland, James Gaisser, Richard Veld, Peter Van Winkle, Blair Newcomb, Huff, Walter Mitchell, the Porters, Cormack Construction Management, Belknap Landscaping, DES, and the New Hampshire Department of Transportation (the "DOT").

13 The Town had earlier produced some of the documents sought by the first Right-to-Know request; this occurred on or about November 11, 2014.

14 The statute also lists various circumstances that do not constitute a meeting-none of which the parties argue apply here. (Id.)

15 The defendants also appear to argue that the Porters waived this argument by failing to raise it in their complaint. (See Defs.' Tr. Mem. at 11.) The court disagrees. The Porters filed their complaint with this court on December 12, 2014. The documents in question were not disclosed to them until February 3 and 10, 2015-almost two months after the Porters filed their complaint. The Porters' could not, therefore, be expected to include this argument in their complaint.

16 To the extent they also assert that the failure to disclose the packet materials was not done in bad faith, the court will address their argument in its later discussion of remedies.

17 The parties do not appear to dispute that the BOS is within the Town's "control group." See 13 P. Loughlin, New Hampshire Practice: Local Government Law §§ 292 (3d ed. 2011) (describing selectmen as "the leading officials in the town").

18 To the extent that the plaintiffs make this same argument in relation to e-mails copying Kerr, the result is the same, with one exception. Kerr's status as a BOS member places him within the "control group"; thus, he is a client, rather than a representative. Regardless, the documents are privileged.

19 The court has reviewed both the transcript and the video deposition of Kerr.