[1]

THE STATE OF NEW HAMPSHIRE

SUPERIOR COURT

CHESHIRE, SS 213-2011-CV-00337

ROBERT CAMERON
AND
LORETTA SIMONDS

v.

MARLBOROUGH BOARD OF SELECTMEN

ORDER

Robert Cameron and Loretta Simonds have filed a petition under the Right-to-Know Law, RSA chapter 91-A, against the Town of Marlborough Board of Selectmen ("Board" or "respondent"). The Board of Selectmen consists of three elected members: John Northcott, Lawrence Robinson, and Gina Paight. Petitioners assert "that the board has communicated outside of meetings, held meetings without public notice, refused access to public records, and changed public records." Pet. ¶ 5.

Petitioners seek relief under RSA 91-A:8 as well as "the immediate production of public records, documents, communications, notes, drafts, minutes, emails, conversations, billings, logs, fees, costs, and any other communications [2] that assists public awareness covered during the open and transparent operation of government." Id. ¶ 4. The parties appeared for a hearing on December 6, 2011 and proceeded by offer of proof. Because petitioners' allegations fall into several discrete categories, each shall be addressed in turn.

1. January 5, 2011 and January 20, 2011 meetings between the Board and the selectmen of Dublin, Harrisville, and Nelson

Petitioners assert that two gatherings that had taken place between the Boards of Selectmen of the Towns of Marlborough, Dublin, Harrisville and Nelson, had constituted meetings within the meaning of RSA 91-A:2, I. Petitioners assert that the events were not properly noticed, as required by RSA 91-A:2, II; and that no minutes were taken, contrary to RSA 91-A:4. Pet. ¶ 8. Petitioners assert that at these two meetings, the four towns had agreed to raise money to fund a consolidation project concerning municipal services and also to hire Municipal Resources, Inc. ("MRI") to start a plan for consolidation. Id. ¶ 9. Additionally, petitioners state that the Board has denied what is said by petitioners to have occurred at the two meetings.

By way of response, respondent acknowledges that the meetings transpired; denies that these meetings were meetings within the meaning of RSA 91-A:2, I; and "affirmatively states that the Marlborough Board of Selectmen chose not to be involved in the project being proposed and took no action on the subject." Answer ¶¶ 8, 9. In support, the Board points to Def. Exh. C, the minutes of the Board's January 24, 2011 meeting: "The Board reviewed the information regarding the Harrisville cooperation initiatives. Mrs. Paight moved [3] and Mr. Robinson seconded to withdraw from the project. Vote as unanimous to withdraw from the project. Chairman Northcott will contact the Harrisville Chairman." Def. Exh. C. The minutes of the Board's meeting on January 10, 2011 state: "Chairman Northcott reviewed the meeting in Harrisville on January 5^th. The consultant will be back with information on January 20^th." Def. Exh. B.

Petitioners are correct that the decisions to hire the consultant and to have the consultant gather initial information were made outside of a properly held meeting with notice and minutes. In other words, the decisions creating the necessity for the Board to vote to "withdraw from the project" were made outside of the open meeting process required by RSA 91-A:2, I. The so-called four-town meetings constituted meetings under the provisions of RSA chapter 91-A.

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. A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters.

RSA 91-A:2, I (emphasis added).

The Right-to-Know Law prohibits discussing outside of meetings matters which should properly be discussed at meetings. See RSA 91-A:2-a. The [4] statute requires that meetings be open to the public and that notice be given and minutes kept. RSA 91-A:2, II. The Board does not dispute that hiring a consultant to advise the Board on the prospect of consolidation is a matter over which the Board has supervision, control, jurisdiction or advisory power.

At the two meetings in Harrisville, the Board discussed and acted upon a matter over which it had authority. Its assertion that no decision-making had taken place in Harrisville is unpersuasive. The Board stated at the hearing that a vote took place to hire MRI as a consultant. The record reflects that such a vote was taken by the Town of Harrisville Board of Selectmen on January 12, 2011. The minutes of that meeting indicate: "The towns agreed to put a warrant article in this years (2011) town report for $5000, and not to exceed this amount, to hire Mr Jutton [President of MRI] to start a plan for the tour towns. This is a preliminary work-up to help the towns along and to see if they wish to continue." Pet. Exh. 1.

The minutes of a meeting held on January 20, 2011 and signed by the Harrisville Selectmen state: "[T]he speakers began to discuss the mutual agreement between the towns to have an article for the sum of $6000¹ from each town to pay for the services of Municipal Resources Inc. The towns did agree to do this and were in favor of hiring Mr. Donald R. Jutton of Municipal Resources Inc. to bring a unified vision and leadership to the towns." Pet. Exh. 2. At the two meetings in Harrisville, the Board discussed and acted upon a matter over which it had authority.

[5] At the four-town meetings, the attendees, including the Board, agreed to hire MRI for a preliminary workup with an option to continue. This conclusion is supported by the Board's own language from its January 24, 2011 meeting. The minutes indicate that the Board decided to withdraw from the project, even though the Board represented at the hearing and in its answer that it "chose not to be involved" in the consolidation project, or that it voted in public session not to go through with the project. The evidence supports a conclusion that, outside of a properly held meeting, the Board decided to hire MRI -whether alone or in conjunction with other towns- for a preliminary work-up. The Board's assertion that it merely engaged in information-gathering is unpersuasive: what it did was decide to hire a third party to gather information.

Lastly, whether or not the meetings took place in Harrisville or in Marlborough, they were meetings within the meaning of the Right-to-Know Law.

Generally, attendance by a quorum of a public body at a meeting being held by a different public body to discuss or act upon a matter within the first body's jurisdiction should be treated as a meeting for Right-to-Know law purposes by both public bodies. Both bodies should provide notice of the meeting and both bodies should keep minutes, which may be the same document, separately adopted as minutes by both.

New Hampshire Attorney General Right to Know Memorandum ("AG Mem.") at 10 (July 15, 2009).

For the foregoing reasons, the Court concludes that the Board had violated the Right-to-Know Law when it failed to treat the January 5 and January 20, 2011 four-town meetings as meetings under RSA 91-A:2, I and to comply with the requirements attendant thereto.

[6] 2. Documents concerning the Board's relationship with MRI

At the hearing, the Board represented that it had consulted with legal counsel about dismissing the Police Chief. The Board emphasizes that no decision had yet been made when counsel was consulted. Counsel, in turn, contracted with MRI for professional consulting services concerning investigating the possibility of dismissal. In other words, there was no contract entered into directly between the Board and MRI. The Board asserted at the hearing that for this reason, it has no records from MRI other than MRI's final report on the Police Chief, which has already been disclosed.

Petitioners requested from the Board documents and information regarding its relationship with MRI. In his letter to the Board, Cameron requested both physical records and memorialized communications: "records of phone calls, e-mails, or any other means of communications between MRI and the town of Marlborough." Pet. Exh. 5. The Board asserted - and continues to assert - that no such records are available and those that are are subject to attorney-client privilege. Pet. ¶¶ 14, 15; Exh. 4.

Petitioners argue that the attorney-client privilege would not apply because of MRI's presence during meetings between the Board and counsel. Id. ¶ 16; Pet. Exh. 5. Petitioners argue that because communications between the Board and counsel were not privileged, these communications were improperly held meetings, conducted in violation of RSA chapter 91-A, "includ[ing] RSA 91-A:2 meetings open to the public, 91-A:2-a communications outside meetings, 91-A:3 [7] nonpublic sessions, 91-A:4 minutes and records available for inspection." Id. ¶ 23. The Board responds that because MRI was counsel's agent, its presence at the Board's meetings with counsel did not defeat attorney-client privilege.²

In addition to asserting that communications between counsel and the Board were not privileged, and that the Board therefore had held improper meetings under RSA chapter 91-A, petitioners seek the release of records in counsel's possession, specifically "[n]otes or drafts of the meetings including all records being maintained by any separate entity for the board which is not covered by attorney-client privilege."³ Pet. Prayer 2 (b).

As explained above, petitioners argue that attorney-client privilege does not apply. The Board responds that, like its communications with counsel, the documents prepared by MRI are protected under the work product doctrine and [8] the attorney-client privilege; are in the custody of counsel; and are not governmental records as defined in RSA chapter 91-A. Answer ¶ 25.

The Court first addresses whether MRI's presence at meetings between the Board and its counsel defeated attorney-client privilege.

"The common law rule that confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction." The classic explication of the privilege is: "Where legal advice ... 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 ... unless the protection is waived by the client or his legal representatives." New Hampshire Rule of Evidence 502 essentially codifies the common law attorney-client privilege.

Hampton Police Assoc. v. Town of Hampton, 162 N.H. 7, 15 (2011) (internal citations omitted).

Consultation with counsel is exempted from the definition of "meeting." RSA 91-A:2, I.

The statute defines a meeting as the convening of a quorum of the membership of a public body "for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power." RSA 91-A:2, I (Supp. 2010). "Consultation with legal counsel," however, is excluded from that definition and is therefore not subject to the various requirements for open meetings contained in RSA 91-A:2, II. RSA 91-A:2, I(b) (Supp. 2010).

Ettinger v. Town of Madison Planning Bd., 162 N.H. 785, 788, 2011 N.H. LEXIS 178, at *5 (N.H. Dec. 8, 2011). Petitioners rely on the general presumption that "meetings" as [9] defined in RSA 91-A:2, I must be open to the public⁴ and argue that the "consultation with counsel" exception does not apply here.

In Ettinger, the New Hampshire Supreme Court rejected the argument "that a consultation with legal counsel is coextensive with the common-law attorney-client privilege," albeit in a different context than the present one. Id. at 789, *7. Ettinger explored the definition of "consultation" to determine whether "public bodies [may] [] enter nonpublic sessions to discuss the written advice of counsel." Id. The Supreme Court concluded that consultation with counsel "[a]t the very least ... requires the ability to have a contemporaneous exchange of words and ideas between the public body and its attorney." Id. at 789, *6. The Court based its conclusion on the differing public policy concerns underpinning attorney-client privilege and the Right-to-Know Law and on the protections which already exist under the statute.

Whereas the common law attorney-client privilege reflects a policy of encouraging clients to consult with lawyers by enabling the free and open exchange of information between the two, the Right-to-Know Law expresses a more specific policy governing the disputed situation in this case - namely, a public body meeting to discuss matters within its purview. Moreover, to the extent that the attorney-client privilege helps prevent a public body's adversary in litigation from gaining an unfair advantage, the legislature has safeguarded that interest by its enactment of RSA 91-A:3, II(e) (Supp. 2010), authorizing nonpublic sessions to consider or negotiate "pending claims or litigation which has been threatened in writing or filed against the body ... or against any member thereof because of his membership in such body or agency ... ."

[10] Id. at 790, *9 (emphasis in original).

Unlike the petitioner in Ettinger, petitioners do not argue that the Board's communications with counsel were not a "consultation." They argue instead that the "consultation with counsel" exception (RSA 91-A:2, I (b)) to the open meeting requirement (RSA 91-A:2, II) does not apply because confidentiality should be deemed as having been waived. Ettinger did not address this issue specifically and thus may offer limited guidance. Despite language that the expansive common-law attorney-client privilege may not apply as broadly in the context of the Right-to-Know Laws⁵, the policy considerations outlined in Ettinger would not appear to justify departing from the rule that an attorney's agent is encompassed within the privilege.

Generally, the presence of an agent does not defeat attorney-client privilege, confidentiality, or the work product doctrine.

The lawyer/client privilege extends to "confidential" communications between:
1. Client and lawyer;
2. Client and lawyer's representative;
...
5. Client's lawyer and client's lawyer's representative
...

Charles G. Douglas, III, New Hampshire Evidence Manual § 502.02 (Matthew Bender, 4th Ed.); see also N.H. Evid. R. 502 (b). Scenario No. 1 above covers [11] communications between counsel and the Board; No. 2 between the Board and MRI; and No. 5 those between counsel and MRI.

Rule 502(b) sets forth the general proposition that the client may refuse to disclose and may prevent another's disclosure of confidential communications ... made to facilitate the rendering of professional legal services. ...

This definition is consistent with the general principle enunciated in several decisions: The necessity of an unreserved communication, by individuals, to those they employ in legal affairs, has induced courts to the benefit of the client, to hold, that the attorney is not bound to become a witness to those matters of which he derived knowledge from professional confidence. [Brown v. Payson, 6 N.H. 443, 444 (1833)].

We think the right [to legal representation of a person of one's choosing] includes, as a necessary incident without which it cannot be safely enjoyed, the right to instruct those who may thus be employed and have the trust and confidence thus reposed preserved inviolate... . [Bean v. Quimby, 5 N.H. 94, 97 (1829)].

Id.; see also State v. Chagnon, 139 N.H. 671, 675-676 (1995) ("'At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.' While it is certainly true that work product may be found in an investigator's report, a witness statement, whether prepared by the witness or by an attorney or an agent of an attorney, should not automatically be considered work product if it records the observations of the witness rather than mental impressions, conclusions or legal theories of the attorney or investigator." (Internal citations omitted; emphasis added.)

[12] Another case on which petitioners rely, Cavallaro v. U.S., 284 F.3d 236 (1st Cir. Mass. 2002), appears to support the Board's position.

Generally, disclosing attorney-client communications to a third party undermines the privilege. United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999) (stating that "the attorney-client privilege generally applies only to communications between the attorney and the client"); [3 Weinstein's Federal Evidence § 503.15[3] (J.M. McLaughlin, ed., 2d ed. 2002)]; [E.S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 168-69, 189 (4th ed. 2001)]. An exception to this general rule exists for third parties employed to assist a lawyer in rendering legal advice. Sup. Ct. Standard 503; Weinstein's Federal Evidence, supra, at §§ 503.12[3][a] and [4][b]. In [U.S. v. Kovel, 296 F.2d 918 (2d Cir. 1961)], the Second Circuit held that, because "the complexities of modern existence prevent attorneys from effectively handling clients' affairs without the help of others," the attorney-client "'privilege must include all the persons who act as the attorney's agents.'" 296 F.2d at 921 (quoting Wigmore, supra, § 2301, at 583).

Cavallaro, F.3d at 246-247. In Cavallaro, the U.S. Court of Appeals for the First Circuit found that attorney-client privilege did not extend to an accountant, who was allegedly hired as the attorney's agent, because "the record does not show that any party hired [the accountant] to assist [the attorney] in providing legal advice[.]" Id. at 248. Furthermore, there was no evidence that the accountant was hired "for the effective consultation between the client and the lawyer which the privilege is designed to permit." Id., quoting Kovel, 296 F.2d at 922. In fact, "the evidence shows that [the accountant] was not employed for this purpose." Id.

The Board submits that legal counsel hired MRI for the purposes of assisting counsel's consultation with the Board on the issue of the Chief's [13] dismissal. Petitioners did not offer proof to the contrary. In fact, petitioners do not allege that there was no contract between counsel and MRI, or that one existed between the Board and MRI. As explained above, petitioners rely on MRI's email to Northcott (Pet. Exh. 9) in arguing that the Board and MRI had communicated directly, but this fact is neither disputed nor dispositive, given that MRI functioned at counsel's agent. See C. Douglas, supra, § 502.02.

Should petitioners argue that MRI was hired for a purpose other than that with respect to which privilege is asserted, i.e. the dismissal of the Chief, the email from MRI to Northcott⁶ as well as counsel's invoices to the Board (Pet. Exh. 3) support a finding that MRI had assisted counsel on the issue of dismissal. Accordingly, MRI functioned as counsel's agent and the Board's communications with counsel, inside or outside of MRI's presence, were confidential. Accepting petitioner's premise that confidentiality is necessary for the "consultation with counsel" exception to the open meeting requirement to apply, the Court must reject their argument that the confidentiality of the Board's communications with counsel had been waived and that the Board therefore improperly held meetings under RSA 91-A:2, I.

Petitioners also ask the Court to "[o]rder the release of all records and correspondence between the board and MRI." Pet. Prayer 2. The Board has represented that it has no such records, and that all responsive records are in counsel's possession. Petitioners also seek "all records being maintained by any separate entity for the board which is not covered by attorney-client privilege." [14] Id. at 2 (b). As explained above, the Court interprets petitioners' request for such records as applying solely to records in counsel's possession, as the existence of any other hypothetical and unidentified entity is speculative. The Board objects to disclosure on two grounds. With regard to the first, the Court agrees with the Board that its communications with counsel and MRI are privileged; as for the second, the Board's argument that the records in counsel's possession are not governmental records for the purposes of the Right-to-Know Law is insufficient to withstand disclosure.

RSA chapter 91-A defines governmental records broadly.

"Governmental records" means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term "governmental records" includes any written communication or other information, whether in paper, electronic, or other physical form, 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. The term "governmental records" shall also include the term "public records."

RSA 91-A:1-a, III. The Board offers little explanation why the records in its possession do not meet this definition; nor is it readily apparent why these records would not be "any information created, accepted, or obtained ... on behalf of" the Board. Id.

RSA 91-A:4, I sets forth a presumption in favor of disclosing governmental records: "Every citizen ... has the right to inspect all governmental records in the [15] possession, custody, or control of such public bodies or agencies[.]" A different subsection of the same statute exempts confidential records. "Access to work papers, personnel data, and other confidential information under RSA 91-A:5, IV shall not be provided." RSA 91-A:4, V. Additionally, the section of the statute setting forth exemptions from disclosure includes confidential records. RSA 91-A:5, IV.

"To advance the purposes of the Right-to-Know Law, we construe provisions favoring disclosure broadly and exemptions narrowly. By so doing, we 'best effectuate the statutory and constitutional objective of facilitating access to all public documents.'" Lamy v. New Hampshire Public Utilities Commission, 152 N.H. 106, 108 (2005) (internal citations omitted). To resist disclosure, it is not enough to simply allege that records are confidential.

The Right-to-Know Law specifically exempts from disclosure "[r]ecords pertaining to ... confidential ... information." RSA 91-A:5, IV. The determination of whether information is confidential for purposes of our Right-to-Know Law is assessed objectively, not based upon the subjective expectations of the party generating that information. Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 554 (2002). Even if records are deemed confidential, however, they are not per se exempt from disclosure. Id. "Rather, to determine whether records are exempt as confidential, the benefits of disclosure to the public must be weighed against the benefits of non-disclosure to the government." Id. (quotation and brackets omitted). To show that information is sufficiently confidential to justify nondisclosure, the party resisting disclosure must prove that disclosure is likely to: (1) impair the information holder's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Id. This test emphasizes the potential harm that will [16] result from disclosure, rather than simply promises of confidentiality, or whether the information has customarily been regarded as confidential. Id. at 554-55. The burden of proving whether information is confidential rests with the party seeking nondisclosure. Id. at 555.

Hampton Police Assoc., 162 N.H. at 14 (internal citations omitted).

The Board denies that the records prepared by MRI are governmental records within the meaning of the Right-to-Know Law: it does not invoke the statute's confidentiality exception and makes no attempt to meet the burden set forth above. Nevertheless, ordering the Board to disclose the records in counsel's possession because it failed to meet its burden would impact the policy considerations animating attorney-client privilege as well as those underpinning the balancing test in Goode and Hampton Police Assoc.

To find, on one hand, that privilege protects the Board's communications with counsel and MRI and, on the other, to direct counsel to produce all of MRI's and its own work product would amount to throwing out the baby with the bathwater. Accordingly, the parties shall have 10 (ten) days from the issuance of the orders of notice to brief the sole issue of whether the confidentiality exemption applies to the disclosure of records in the possession of counsel, which concern MRI's inquiry into the Chief's dismissal. Also, notwithstanding the Board's representations at the hearing that it has no such records in its possession, the Court directs the Board to disclose any records which it possesses concerning MRI's inquiry into the Chief's dismissal. Should it find responsive records and wish to argue that they are subject to the confidentiality [17] exemption, the Board shall have 10 (ten) days from the issuance of the orders of notice to make such disclosure and/or argument.

Next, petitioners argue that the decision to dismiss the Police Chief had been made before MRI was hired. Petitioners argue that legal counsel's invoices (Pet. Exh. 3) and the email from MRI to Northcott (Pet. Exh. 9) reflect that counsel had communicated with the Board about the Chief's dismissal before MRI's recommendations had been completed. Id. ¶ 20. "[D]ismissal of the police chief was discussed with MRI prior to the start of the fact finding visit scheduled by [MRI] for July 29^th[.]" Id. ¶ 24; Pet. Exh. 3.

Petitioners' argument appears to suffer from two infirmities. First, it is unclear in what way counsel's communications with the Board concerning the Chief's potential dismissal violated the Right-to-Know Law. Second, even were such actions to be considered unlawful under the statute, a billing entry stating that counsel discussed with the Board "dismissal/suspension of police chief" (Pet. Exh. 3) does not indicate that a decision to dismiss had been made. In fact, ongoing consultation with counsel can just as easily be read to indicate the Board's reluctance to decide on dismissal. Petitioners are also unpersuasive in arguing that the billing statements indicate that "the MRI study is flawed" by the alleged pre-determination to dismiss the Chief. Id. ¶ 24. It is simply too broad a conclusion to draw from the record. Additionally, it is unclear that a petition under RSA chapter 91-A is the proper mechanism to challenge the Board's use of an allegedly unreliable study.

[18] Petitioners assert that the Board failed to account for its expenditures for MRI's services. Id. ¶ 21. A bill from the Board's counsel indicates a disbursement for professional fees in the amount of $6,474.47. Id.; Pet. Exh. 3. Petitioners argue that MRI's services are not legal services and that payment for MRI's services was therefore not an authorized disbursement within the meaning of RSA 32:3, V, assuming that "the board has authorized disbursements from a single purpose line item ... in this case Legal Services[.]" Id. ¶ 22. In other words, petitioners argue that because counsel called its payments to MRI a disbursement, the Town had improperly disbursed funds for services other than legal services when the disbursements were authorized for legal services alone. Because MRI was paid out of improperly disbursed funds, petitioners argue that the Town of Marlborough is not liable for the expenditure under RSA 32:8. Id. ¶ 22.

Additionally, petitioners argue that the improper disbursement of funds through an intermediary, i.e. the Board's counsel, had been for the purpose of concealing the Board's expenditures.

The end result is that money has been spent for a project that was kept out of public view; now the payment for the project has been hidden under a general cost of an operation budget item. At a minimum, the board's actions would seem to be in conflict with RSA 91-A:1 and the concept of open government.

Id. ¶ 26. The Board responds that petitioners' allegations concerning improper disbursements "fail[] to state a claim for relief under RSA chapter 91-A." Resp. Memo Law p. 7, n. 2. The Board also argues that the expenditure was proper [19] because it covered "costs attributable to MRI's services that were provided to legal counsel to assist in advising and representing the Board with respect to its dealings with the police chief." Id. at 8, n. 2.

A challenge under the Right-to-Know Law is not the proper vehicle with which to contest appropriations made by the Town of Marlborough. See RSA 91-A:7 ("Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief[.] ... The petition shall be deemed sufficient if it states facts constituting a violation of this chapter...." Emphasis added.) Compare RSA 32:1 (The purpose of the municipal budget law is "to assist [] voters in the prudent appropriation of public funds" and "to establish uniformity in the manner of appropriating and spending public funds in all municipal subdivisions[.]") with RSA 91-A:1 ("The purpose of this chapter 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.").

Under RSA 32:12, "[a]ny person or persons violating the provisions of this subdivision⁷ shall be subject to removal from office on proper petition brought before the superior court." RSA chapter 32 provides a right of action for taxpayers who wish to challenge appropriations. See Foote v. Manchester Sch. Dist., 152 N.H. 599, 605 (2005). The Right-to-Know Law is not the appropriate mechanism for petitioners to challenge the appropriations made by Town of [20] Marlborough by arguing that expenditures were made for an undesignated purpose. Accordingly, the Court declines to address petitioners' allegation that the Board devised a disbursement scheme in order to conceal its expenditures for MRI's services.

3. Unnoticed or Improperly Noticed Meetings

Petitioners assert that on several occasions, a quorum of Board members had met without complying with the meeting requirements set forth in RSA chapter 91-A.

a) Visits to the Lehtola Property and Shaker Farm Road

Petitioners assert that based on the minutes of the Board's June 6, 2011 meeting, a quorum -Northcott and Robinson- held two meetings without notice or minutes. At the June 6, 2011 meeting, Northcott and Robinson stated that they "will visit the Lehtola property." Pet. Exh. 11. They also stated that they "will go to Shaker Farm Road with Mr. Riggieri on Tuesday to review the crowning in the road and how it could be fixed." Id. Petitioners argue that the visits to the Lehtola property and Shaker Farm Road were meetings held without required notice or minutes. Pet. ¶ 28.

The Board argues that neither visit was a meeting within the meaning of RSA chapter 91-A and that there had been no decision-making or deliberation. Answer ¶ 28. At the hearing, the Board explained that the visit to the Lehtola property was a follow-up on a complaint regarding junk and that Robinson and [21] Northcott went to the property to ascertain the progress of junk removal. The Board asserted that the visit was later discussed at a public meeting. Regarding the visit to the Shaker Farm Road property, the Board stated at the hearing that Northcott and Robinson were following up with a complainant on the status of a complaint involving drainage.

The Board points to the minutes of the its June 13, 2011 meeting, at which "Chairman Robinson reported that he called Mr. Lehtola to get permission to access the property to review to see if he has completed the removal of the junk cars but has not received a return call." At a meeting on June 20, 2011, "Chairman Robinson had not yet contacted Mr. Lehtola regarding approval to go on his property." Def. Exh. E. On July 11, 2011,

Chairman Robinson reported that he met with Mr. Lehtola and reviewed his property for any violations regarding unregistered vehicles. He found the property to be cleared of any ordinance violations. There was a call from a citizen that there was a full car carrier brought in on Saturday so Chairman Robinson will revisit the property.

Def. Exh. F. Because the record does not support a conclusion that a quorum of the Board had visited the Lehtola property - which, based on the minutes, occurred sometime between June 20 and July 11, 2011 - the Court cannot conclude that the Board held an improper meeting under RSA 91-A:2, I. "The Right-to-Know Law applies only to meetings of a quorum of members of a public body[.]" Webster v. Town of Candia, 146 N.H. 430, 444 (2001).

For the same reason, the Court cannot conclude that the Board had held an improper meeting at the Shaker Farm Road property. The record reflects the [22] following discussions concerning the property. On June 13, 2011, "Mr. Northcott reported that he contacted Mr. Patnode about putting rip-rap on Shaker Farm Road North for drainage." Def. Exh. D. On July 11, 2011, "Mr. Northcott asked if Mr. Patnode had placed rip rap on Shaker Farm Road South. Mr. Patnode had completed this task." Def. Exh. F. The Court disagrees with petitioners that "[i]t is impossible to tell from existing documentation whether meetings were held or not, or what actually transpired during the meetings." Pet. ¶ 28. The Board did not hold any meetings at the Lehtola property or Shaker Farm Road.

b) Visit to Glenn Brook Farm

At a meeting on June 13, 2011, the Board discussed scheduling the visit to Camp Glenn Brook. "Mrs. Paight asked Mrs. LaPlante⁸ to contact Mr. Braden at Camp Glen Brook to set up the date to visit." Def. Exh. D. The minutes of the June 20, 2011 meeting indicate that "Mrs. Paight and Chairman Robinson reviewed the visit to Camp Glen Brook." Def. Exh. E. Petitioners assert that a quorum of selectmen - Paight and Robinson - had conducted a visit, which was a meeting conducted without notice or minutes. Pet. ¶ 29.

The Board responds that the visit was not a meeting under RSA chapter 91-A; that it pertained to a tax issue; and that the Board discussed this issue at subsequent meetings. On October 17, 2011, "[t]he Board reviewed a letter from Mr. Braden regarding a PILOT⁹ for Camp Glenbrook. The Board will need to look at this further." Def. Exh. H. On October 31, 2011, "Mr. Northcott asked about [23] the status of the request from Camp Glenbrook for a PILOT program. Mrs. LaPlante is working a [sic] spreadsheet to show the comparisons in the PILOT and the standard taxes. This will be available for the 11/7 seiectmen's meeting." Def. Exh. J.

It is unclear from the record what took place at the visit to Camp Glen Brook, i.e. whether a quorum "discuss[ed] or act[ed] upon a matter or matters over which [it] has supervision, control, jurisdiction, or advisory power[,]" rendering the visit a meeting under RSA 91-A:2, I. The Court cannot enter a ruling whether this particular visit constituted a violation of the Right-to-Know Law. Such controversies can be avoided in the future if the Board keeps clearer documentation of its meetings as well as visits which it does not consider to be meetings.

c) Meetings at the Police Department on October 27 and October 31, 2011

Petitioners assert that on October 27, 2011, a quorum - Paight and Northcott - "held a meeting with Police Chief Lyons and other police department members" without notice or minutes. Pet. ¶ 30. On October 31, 2011, Northcott and Paight again met with Chief Lyons. "Notice of the meeting was posted less than 24 hours before the meeting was held." Id. ¶ 31. With respect to the October 31, 2011 meeting, petitioners do not allege any deficiencies with minutes, but only with the timeliness of notice. Id.

At the hearing, the Board explained that both meetings concerned the consideration of a prospective police cadet. According to the Board, the October [24] 27, 2011 meeting did not consitute a meeting under the Right-to-Know Law. Answer ¶ 30. The Board stated at the hearing that Northcott and Paight came to the department separately and without coordination, and that minutes were taken because "Northcott felt they were entering into a meeting." Def. Exh. I. However, the meeting was not noticed because there was no time to break and re-notice the meeting.

Northcott was correct that a quorum held a meeting on October 27, 2011. The Board does not dispute that the hiring of an employee is a matter within the Board's jurisdiction. The minutes reflect that the meeting entailed decision-making and action upon the matter.

The Chief and Sgt. Hennessy reviewed the results of the physical agility tests. Of the 23 taking part, 11 passed. They then reviewed the results of the Oral Board. There was a group discussion as to how to proceed. It was decided that a conditional offer of employment be made to one candidate. It was understood that if that candidate did not meet the requirements, the same would be offered to the next candidate.

Def. Exh. I. A quorum reduced the candidate field from 11 to one and settled on a contingency plan.

The Right-to-Know law does not apply to isolated conversations among less than a quorum of individual members outside of public meetings, unless the conversations were planned or intended for the purpose of discussing matters relating to official business and the public entity made decisions during the isolated conversation.

AG Mem. at 11. On October 27, 2011, the Board held a meeting under RSA 91-A:2, I.

[25] The Board offers little justification for failing to provide timely notice of the October 27, 2011 meeting, beyond stating at the hearing that there was no time to adjourn, post notice, and reconvene. Convenience is not a valid justification for failure to provide required notice. See RSA 91-A:2, II, quoted below. Neither by offer of proof, nor in subsequent meeting minutes, did the Board explain the emergency based on which it opted to proceed with the meeting without notice. The October 27, 2011 meeting had been held in violation of the Right-to-Know Law.

The Board does not dispute that the October 31, 2011 visit constituted a meeting under RSA chapter 91-A. Answer ¶ 31. The question which remains is whether the Board had been justified in not providing the notice required by RSA 91-A:2, II.

Except in an emergency or when there is a meeting of a legislative committee, a notice of the time and place of each such meeting, including a nonpublic session, shall be posted in 2 appropriate places one of which may be the public body's Internet website, if such exists, or shall be printed in a newspaper of general circulation in the city or town at least 24 hours, excluding Sundays and legal holidays, prior to such meetings. An emergency shall mean a situation where immediate undelayed action is deemed to be imperative by the chairman or presiding officer of the public body, who shall post a notice of the time and place of such meeting as soon as practicable, and shall employ whatever further means are reasonably available to inform the public that a meeting is to be held. The minutes of the meeting shall clearly spell out the need for the emergency meeting. . . .

[26] RSA 91-A:2, II. Only in an emergency is the Board absolved of the responsibility to post 24-hour notice, and even then, it must make all reasonably feasible efforts to make the fact and location of the meeting known to the public.

The Board has not provided to the Court the minutes of the Board's October 31, 2011 meeting with police. The minutes of the Board's own October 31, 2011 meeting contain the following language: "Mr. Northcott moved and Mrs. Paight seconded to approve the minutes of the 10/24/2011 regular meeting, 10/27/2011 Special Meeting, 10/31/2011 Special Meeting, 10/31/2011 Non-Public Meeting. Vote was unanimous." Def. Exh. J.

Even were the Court to assume that minutes were taken at the Board's October 31, 2011 meeting with police, little in the record indicates that the minutes of that meeting spelled out the emergency. In fact, the only evidence based on which the Court may assess the Board's determination that an emergency existed and advance notice need not have been posted, is the Board's offer of proof at the hearing. See AG Mem. at 9 ("[Emergency] notice may be utilized if the chairperson or presiding officer of the public body decides that an emergency exists and that immediate action is imperative.")

The Board explained at the hearing that Chief Lyons requested a meeting less than 24 hours in advance because the prospective candidate was only available on that date. The Board's memorandum of law, however, reflects that the Board had over 24 hours to post notice.

[O]n Friday night the Chief requested a meeting with the Board of Selectmen on the morning of October 31 to discuss hiring the new officer.... [T]he candidate being considered could only meet with the Board and [27] the Chief on Monday morning. Because the Chief did not request the meeting with the Board until Friday evening, notice could not be posted that day, but was posted immediately on Monday morning.

Resp. Memo Law p. 6. Under RSA 91-A:2, "[e]xcept in an emergency ... notice of the time and place of each such meeting ... shall be posted in 2 appropriate places ... at least 24 hours, excluding Sundays and legal holidays, prior to such meetings." RSA 91-A:2, II (emphasis added). More than 24 hours lapsed between Friday night and Monday morning, excluding Sunday; Saturday, October 29, 2011 was not a legal holiday.

Even assuming that urgently interviewing a new cadet constitutes an emergency justifying an unnoticed meeting, there appears little justifiable reason for the Board to wait until Monday morning to post notice.

Notice shall be made by whatever means are available to inform the public about the meeting. RSA 91-A:2, II. For example, notice may be given over the radio, the body may post notice, and/or may notify by telephone people known to be interested in the subject matter of the meeting. The nature of the emergency will dictate the type of notice which can be given. In any event, a diligent effort must be made to provide some sort of notice and those efforts should be documented.

AG Mem. at 9-10. It was incumbent upon the Board to make a diligent effort to post notice of the October 31, 2011 meeting with police. Because it failed to do so, despite having over 24 hours, the Board has violated the Right-to-Know Law with respect to the October 31, 2011 meeting with police.

d) Meeting with Malaise Lindenfeld on November 18, 2011

[28] On November 18, 2011, Paight, Northcott, and LaPlante met with Malaise Lindenfeld at a café which Ms. Lindenfeld owns. Pet. ¶ 33. Based on e-mall correspondence between Paight, Northcott, and LaPlante, the meeting was arranged "to talk about the website and [] to give her the plague [sic] from Marl-Harris." Pet. Exh. 13. As per the note subsequently posted by the Board and titled "Notes on meeting on November 18, 2011,"

Selectman John Northcott, in his role as Chairman of the Board of Marl-Harris, along with Administrative Assistant Mrs. Sandy LaPlante, in her role as Chief of the Marl-Harris Ambulance Squad, presented Ms. Lindenfeld with the plaque. They expressed the gratitude of the squad for the very generous donation made by Ms. Lindenfeld.

Pet. Exh. 14; see also Def. Exh. K. With respect to Paight's presence, the Notes say both that she was "[a]lso present" and, mystifyingly, that "[h]er attendance had been in doubt." Id.

At the hearing, the Board explained that the meeting with Lindenfeld had not been noticed because the awarding of the plaque was intended to be a surprise. In its answer, the Board "denies the allegation that the intention of the meeting was to discuss the Town of Marlborough website." Answer ¶ 32. The Board's assertions that Paight's presence was "in doubt" that the members present did not intend to discuss the website do not appear supported by the record.

On November 8, 2011, LaPlante emailed Lindenfeld: "We need to set up a meeting next week to go over the website and some other things. Please let me know what is good for you and I will make arrangements with John Northcott & [29] Gina Paight." Pet. Exh. 13. LaPlante then emailed Northcott and Paight on November 9, 2001, attempting to set up a time for the meeting "to talk about the website and [] to give [Lindenfeld] the plague [sic] from Marl-Harris." Id. These emails speaks both to the purpose of the meeting and to the nature of Paight's presence. In fact, two potential meeting times were scrapped because Paight had a prior engagement. Id.

The Board scheduled a meeting with Lindenfeld at her café. A quorum was present at that meeting. Setting up the Town's website was a matter within the Board's jurisdiction. In fact, the Board discussed matters concerning the website at its public meetings. See, e.g. Pet. Exh. 27, minutes of the Board's July 25, 2011 meeting: "The Board reviewed the list of items from the website, which will be removed from the website and agreed to discontinue these items."

The Board held a meeting, without notice or minutes, on November 18, 2011. As explained above,

The convening of a quorum of a public body that does not have a purpose to discuss or act on business, could easily constitute a meeting. Therefore, it is very important to limit any conversation or other communication about the business of the public body. It is explicitly improper to deliberate or act on any business of the public body.

AG Mem. at 6-7. The Board violated the Right-to-Know Law when it conducted an improper meeting on November 18, 2011.

e) Discussions outside meetings

[30] Petitioners assert that the Board had engaged in unlawful discussions, contrary to RSA 91-A:2-a. They cite to the minutes of the Board's October 3, 2011 meeting. "Mr. Northcott responded to Ms. Simonds' letter of 10/26/11 regarding Seletmen's [sic] illegal discussion of items after a meeting has been adjourned. Mr. Northcott explained that it was a discussion. The Board may discuss issues but can't deliberate and/or vote outside of a meeting." Pet. Exh. 15. According to petitioners, Northcott also said "we were not deliberating, and discussion is not illegal." Pet. ¶ 33.

Petitioners further allege that the Board had engaged in improper telephonic and electronic discussions outside of meetings. On June 3, 2011, Northcott emailed Robinson, Paight, and LaPlante: "[W]e should change the agenda to have Mr. Couornoyer come in before the public hearing and schedule the Chief after the hearing so we are not limited in the time with him." Pet. Exh. 19. In an email to LaPlante, Northcott, and Robinson dated July 19, 2011, Paight wrote: "I'll email Kady today and tell her we are ready to move forward with next step of dam." Pet. Exh. 16. At the hearing, the Board explained that Paight was appointed the contact person for issues relating to the dam. This argument misses the point: a quorum of Board members should not have been discussing Board business privately. Two emails on July 19, 2011 between Robinson, Paight, Northcott, and LaPlante reflect discussions about the hiring of a part-time police officer. Pet. Exh. 17. On July 28, 2011, Board members corresponded by email about requiring the Police Chief to submit a job description for the newly hired detective/sergeant. Pet. Exh. 18.

[31] The Court agrees with petitioners that the Board had an erroneous understanding of what may and may not be discussed outside of a meeting. The Right-to-Know Law explicitly states that matters within the Board's competence may only be discussed in meetings. Out-of-meeting communications cannot be used to effectuate an end-run around the statute.

I. Unless exempted from the definition of "meeting" under RSA 91-A:2, I, public bodies shall deliberate on matters over which they have supervision, control, jurisdiction, or advisory power only in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III.

II. Communications outside a meeting, including, but not limited to, sequential communications among members of a public body, shall not be used to circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.

RSA 91-A:2-a.

The Board improperly communicated outside meetings, in violation of RSA 91-A:2-a when it corresponded by email on June 3, July 19, and July 28, 2011. Pet. Exh. 16-19. Also, based on the June 3, 2011 email correspondence, on at least one occasion the Board engaged in improper communications with non-members outside of a meeting, i.e. before and after a public hearing.

Alternatively, the above-recited correspondence constituted improper meetings of the Board. The topics discussed in emails by a quorum fell within the Board's jurisdiction.

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 [32] 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. A chance, social, or other encounter not convened for the purpose of discussing or acting upon such matters shall not constitute a meeting if no decisions are made regarding such matters.

RSA 91-A:2, I.

The fact that the communications were by e-mail does not defeat their cumulative purpose of fulfilling the function of a meeting under RSA 91-A:2, I.

[A]n email or other written communication will constitute a governmental record if it is received by a quorum or majority of the public body in furtherance of its official function. Conversely, an email, or letter, that is created, accepted or obtained by less than a quorum of a public body is not a governmental record and is not subject to disclosure.

13 P. Loughlin, New Hampshire Practice: Local Government Law § 861, at 18-22-18-23 (2011). On June 3, July 19, and July 28, 2011, the Board held improper email meetings, in violation of the Right-to-Know Law.

Lastly, petitioners allege that on October 19, 2011, Simonds overheard a telephone conversation between LaPlante and Northcott, agreeing to discuss tax overages and then discuss them briefly at the meeting to have a record of it. Pet. ¶ 34. "The conversation shows that selectmen planned to have a decision made outside of a meeting, then to hold an abbreviated discussion at the meeting." Id. ¶ 35. The Court need not make any factual findings as to whether this conversation occurred because the Right-to-Know Law is not implicated. The [33] phone conversation was not a meeting under RSA 91-A:2, I because it lacked a quorum and not an out-of-meeting communication under RSA 91-A:2-a because it involved only one Board member.

f) Withholding Public Records

Petitioners assert that the Board had effectively withheld certain public records by releasing them in an untimely fashion.

Mr. Cameron requested the January 3^rd nonpublic meeting minutes twice before they were released to him []. The first request of June 14 [] was ignored, even though requests for other nonpublic minutes made in the same letter were honored. ... Mr. Cameron also verbally requested the January 3^rd nonpublic minutes, on July 5^th from Ms. LaPlante.... Ms. LaPlante stated that she could not release them because the board had sealed them.

Pet. ¶¶ 41, 42. The Board asserts that the minutes had been sealed under RSA 91-A:3, III, but after Cameron requested them, the Board consulted with counsel and decided to unseal them. The Board states that the delay in releasing the minutes was due to consultation with counsel, and not unreasonable.

Petitioners had the right to inspect the minutes.

Every citizen during the regular or business hours of all public bodies or public agencies has the right to inspect all non-exempt governmental records, including minutes of meetings of the bodies. This right of inspection is at the regular business premises of the public body or agency. Citizens have the right to make memoranda, abstracts, and photographic or photostatic copies of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5. RSA 91-A:4, I.

AG Mem. at 38.

[34] Generally, the Board has five days to respond to a request for minutes. See RSA 91-A:2, II. Minutes of nonpublic sessions must be disclosed publicly within 72 hours, unless the Board votes to seal them.

Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism[.] ... In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.

RSA 91-A:3, III. Even though the Board properly voted to seal the minutes under RSA 91-A:3, III, the minutes mis-cite the section of the statute on which they rely. Pet. Exh. 21. The Court addresses the citation discrepancy separately below.

"[M]inutes must be kept of the same quality for both open sessions and nonpublic sessions." 13 P. Loughlin, supra § 680, n. 1, at 18-36; see also id. § 672 at 18-30-18-31 ("Minutes must be kept of all public meetings. The minutes do not need to be a stenographic or verbatim record of the meeting, but at a minimum they must include: (1) the names of the members of the board or agency present; (2) persons appearing before the board or agency; (3) a brief description of the subject matter discussed; (4) any final decisions made by the board; and (5) any decision to go into executive session.").

The need to obtain legal advice may justify a delay in disclosure, but an explanation must be provided to the requesting party.

Timing is important! If the records are not immediately available at the office of the public body or public [35] agency, the body or agency has at most five business days to make an initial response. Often records will not be available immediately because they are:

a. In use;

b. Must be reviewed or redacted; or

c. Legal advice must be obtained.

Within five business days, notify the person requesting the governmental records in writing if or when the records, subject to RSA chapter 91-A and other applicable statutes, will be available.

AG Mem. at 39.

The Board does not dispute that it did not honor Cameron's initial request on June 14, 2011 to release the January 3, 2011 nonpublic session minutes, or provide an explanation for its refusal. Answer ¶ 41; Pet. Exh. 20. It is unclear why the Board waited until Cameron's second request on July 5, 2011 to tell him that the requested minutes were sealed. Pet. ¶ 42. By June 14, 2011, the minutes of the January 3, 2011 nonpublic session should have been immediately physically available to LaPlante, even if the minutes were sealed. RSA 91-A:3, III.

If records are immediately physically available, the public body or public agency should:

a. Ask the person requesting access to wait while the records are made available;

b. If production is appropriate, make the records available for inspection and/or copying;

c. Provide only a copy for inspection or closely monitor the person's handling of the original documents;

d. If production is not appropriate, explain why;

e. If the public body or public agency's equipment is used, it may collect payment for copying costs or reproduction costs.

RSA 91-A:4(I), RSA 91-A:4(IV), RSA 126-A:5(X).

AG Mem. at 39 (emphasis added).

[36] Even if the January 3, 2011 nonpublic session minutes were not immediately available to the Board at the time of Cameron's initial request, the Board was not at liberty to ignore the request altogether.

Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.

RSA 91-A:4, IV. Because the Board ignored Cameron's initial request for the January 3, 2011 nonpublic session minutes and failed to give him an explanation for the nondisclosure, it has violated the Right-to-Know Law, RSA 91-A:4, IV.

The subsequent production of the minutes, in response to Cameron's second request, does not erase the violation. "If the public body or agency's conduct is unlawful, the individual or entity which sought the release of public records may be entitled to a remedy despite the agency's ultimate release of the requested documents." 13 P. Loughlin, supra § 684, at 18-41.

Next, petitioners assert that the Board's disclosure of MRI's email to Northcott, dated June 25, 2011, had been untimely because it was made in response to Cameron's second request. Petitioners assert that the untimely disclosure was "in itself a violation of RSA 91-A:4, Minutes and Records Available for Inspection." Pet. ¶ 19. The Board admits that it produced the email [37] in response to Cameron's second request. Answer ¶ 19. The Board explained at the hearing that the delay was the result of a mistake. Because RSA chapter 91-A does not recognize an exemption from disclosure based on mistake, the Board violated the Right-to-Know Law, RSA 91-A:4, IV, when it failed to disclose timely the email from MRI to Northcott.

g) Changes of Minutes

Petitioners raise several instances when members of the Board are said to have impermissibly edited minutes. On September 29, 2011, Northcott emailed Paight and LaPlante -omitting Robinson- with a draft of the September 26, 2011 meeting minutes. Northcott wrote: "[s]ome changes but I would like to hear the tape." Plf. Exh. 1.¹⁰ On September 30, Paight emailed Northcott, LaPlante, and Robinson with "a few changes" of her own. Id. In another incident, on July 19, 2011, Paight emailed LaPlante, Northcott, and Robinson, expressing her anger about a member of the public making a "personal attack on Sandy." Pet. Exh. 16. In that email, Paight indicated that she "plan[s] to edit the minutes to show her horrible behavior over a ridiculous issue." Id.

Another asserted incident occurred when Cameron and Simonds separately requested a copy of the minutes of the Board's February 1, 2011 nonpublic session. The two disclosed copies were different. Simonds' copy (Pet. Exh. 23) contained certain information, which Cameron's copy (Pet. Exh. 22) did not; specifically, a list of attendees, time when the meeting was reconvened, and [38] certain notation which appears to be the statutory exception pursuant to which the Board opted to go into nonpublic session. "Mr. Robinson moved to go into non-public session per RSA 91-A:3c." Pet. Exh. 23. The statute referenced, RSA 91-A:3c, does not exist. The Board presumably meant RSA 91-A:3, II (c), pursuant to which a the Board may discuss in nonpublic session "[m]atters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, unless such person requests an open meeting." This is the only subsection of RSA 91-A:3 under the numeral (c) which would not lead to an odd reading of the minutes.

Petitioners state that at the October 3, 2011 meeting, Cameron asked Northcott why the two sets of minutes were different and that "Mr. Northcott stated that our town attorney recommended that we make these changes." Pet. Exh. 15; Pet. ¶¶ 45-46. At the hearing, the Board explained that the disparity resulted from the inadvertent mistake on the part of Paight, who took the minutes of the nonpublic session instead of LaPlante, who generally prepared the minutes. The Board asserted at the hearing that Paight had inadvertently omitted certain information from Cameron's copy of the emails, which the Board characterized as the "header." While the information may well have related to a missing header, it was information required for the minutes to be compliant with RSA 91-A:3, I (b). Regardless of who took the minutes, those produced to Cameron were statutorily deficient.

The record reflects that the Board's actions with respect to editing the minutes of the September 26, 2011 meeting was not consonant with the spirit of [39] transparency, which animates the Right-to-Know Law. See RSA 91-A:1. The Right-to-Know Law expressly prohibits discussing outside of meetings matters which should properly be discussed at meetings. RSA 91-A:2-a. Instead of discussing the proposed edits in an open forum, the Board made substantive corrections to the minutes, i.e. to its own permanent record. "Minutes 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 treated as permanent records of any public body, or any subordinate body thereof, without exception." RSA 91-A:2, II.

A quorum of the Board edited the minutes of the September 26, 2011 meeting by email, making substantive corrections. After considerable editing by email, the Board unanimously voted to approve the September 26, 2011 meeting minutes at the October 3, 2011 meeting. Pet. Exh. 15.

Meeting minutes must be kept and must include:

(1) The names of the members present;

(2) The names of people appearing before the body;

(3) A brief description of each subject discussed; and

(4) A description of all final decisions made, including all decisions to meet in non-pub|ic session. "Final decisions" include actions on all motions made, even if the motion fails. A clear description of the motion, the person making the motion, and the person seconding the motion should also be included.

AG Mem. at 17 (emphasis added).

"The minutes of every public and private body are routinely corrected at a succeeding meeting when their acceptance is voted." 13 P. Loughlin, supra § 704, at 19-5 (emphasis added). Here, however, the work and discussion behind the unanimously passed motion to approve the September 26, 2011 minutes [40] occurred outside of a properly held meeting. The correspondence between the Board members caused them to circumvent the need to set forth the description of the subject discussed, i.e. the proposed edits, in the minutes of the October 3, 2011 meeting.

In addition to constituting unlawful out-of-meeting communications under RSA 91-A:2-a and obviating the spirit of the Right-to-Know Law (RSA 91-A:1), the Board's emails with respect to the September 26, 2011 meeting minutes appear to have constituted an unlawful electronic meeting. "[T]he statute defines a meeting as convening a quorum 'for the purpose of discussing or acting upon' matters within a public body's purview, RSA 91-A:2, I[.]" Ettinger, 162 N.H. 785, 2011 N.H. LEXIS 178, at *5. Amending and acting upon the minutes, i.e. the record of its proceedings, is undoubtedly a matter within the Board's purview. The Board held an unlawful e-mail meeting with respect to the editing of its September 26, 2011 meeting minutes. The Board's deliberations on the minutes occurred by e-mail, and the vote which took place in public on October 3, 2011, i.e. the formal action on the minutes, was merely pro forma. The Board's email correspondence concerning the September 26, 2011 meeting minutes thus violated RSA 91-A:1, 91-A:2-a; and 91-A:2, II.

The edits, which a quorum of the Board had made to the September 26, 2011 meeting minutes, were based on a tape recording. See Plf. Exh. 1 ("Some changes but I would like to hear the tape.") The Board must produce that recording and any other materials which permitted the Board to reconstruct what had occurred at the meeting, thus enabling it to correct the minutes.

[41] a. The right of the public to inspect governmental records, including minutes of meetings, specifically includes a right to inspect and copy, all notes, materials, tapes or other sources used by an agency to compile the minutes of a meeting, after the completion of a meeting and during the entity's regular business hours. RSA 91-A:4, II.

b. An agency is not obligated to retain notes, tapes or other draft materials used to prepare minutes after final minutes have been approved, prepared and filed, Brent v. Paquette, 132 N.H. 415, 420 (1989). If drafts, notes, and memoranda and other documents not in their final form are disclosed, circulated, or made available to a quorum or a majority of the members of a public body and retained after the public body or agency has approved final minutes, they will be subject to inspection. See Orford Teachers Association v. Watson, 121 N.H. 118 (1981); RSA 91-A:5, IX. Drafts, notes, memoranda and other documents not in their final form which are not disclosed, circulated, or made available to a quorum or a majority of the members of a public body are exempt from disclosure. RSA 91-A:5, IX.

AG Mem. at 40 (emphasis added).

h) Quality of Minutes of Nonpublic Sessions

The Right-to-Know Law sets forth the following requirements for minutes of nonpublic sessions.

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

(b) Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll [42] call, and shall require the affirmative vote of the majority of members present.

(c) All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion.

RSA 91-A:3, I. "[M]inutes must be kept of the same quality for both open sessions and nonpublic sessions." 13 P. Loughlin, supra § 680, n. 1, at 18-36.

On June 14, 2011, Cameron wrote to the Board that the minutes of its nonpublic sessions failed to comply with the statute and requesting the minutes of several nonpublic sessions held by the Board. Pet. Exh. 20. As explained above, the Board produced the minutes of its January 3, 2011 nonpublic session on August 8, 2011, after counsel advised it to unseal the minutes. Id. ¶ 48. Based on these minutes, the Board reviewed "RSA 91-A:3c III [sic]" and discussed the process of sealing and disclosing nonpublic minutes. Pet. Exh. 21. Again, the Board cited to a nonexistent statute - this time, it presumably referred to the subsection of the Right-to-Know Law which governs the sealing of minutes of nonpublic sessions, RSA 91-A:3, III.

Petitioners point to the minutes of the Board's January 3, 2011 nonpublic session and argue that even after discussing the law, the Board continued to "use wrong citations." Pet. ¶ 48. They further assert that the Board retroactively changed its January 3, 2011 meetings after getting Cameron's request for them in June 2011. "The changes made make it appear that they had followed correct procedures in the past." Id.

The record does not contain sufficient evidence to conclude that the Board had changed the minutes of its January 3, 2011 meeting. Similarly, the existence [43] of two versions of minutes of the Board's February 1, 2011 nonpublic session was likely the result of inattentiveness, although, as explained above, the disclosure of statutorily deficient minutes to Cameron did constitute a violation of the Right-to-Know Law.

With respect to incorrect citation, Petitioner is correct: throughout its nonpublic session minutes¹¹, the Board continues to cite to a nonexistent statute, "RSA 91-A:3c", when explaining its basis for entering nonpublic session. As explained above, however, a commonsensical reading of the statute reveals that the Board, in fact, was referring to RSA 91-A:3, II (c). While the Right-to-Know Law certainly mandates transparency in government, the Court cannot conclude that an error with respect to a statutory citation amounts to a violation of RSA chapter 91-A, especially where the correct citation is sufficiently apparent.

Next, petitioners allege that the Board had improperly discussed in nonpublic session matters which were not included in its minutes.

In a nonpublic session, a board cannot receive any information, evidence, or testimony of any kind or in any form (including documents and information from staff) or take any final or official action unless it falls within one of the specific exceptions spelled out in RSA 91-A:3, II. Only those matters specifically stated in the public motion to go into nonpublic session may be discussed during the nonpublic session.

13 P. Loughlin, supra § 676, at 18-33; see also RSA 91-A:3, I (c) ("All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion.")

[44] Petitioners assert that the minutes of the Board's April 4, 2011 nonpublic session are statutorily deficient because they refer to a letter of support for Chief Lyons, but one must request the minutes first in order to discover the existence of the letter. In other words, "a person would need to request the release of the nonpublic minutes in order to find out that the letter of support existed. Then they would have to request the release of the document itself." Pet. ¶ 53. The minutes of the Board's April 4, 2011 nonpublic session note that "[a] letter from the Marlborough School was reviewed. The letter was signed by several staff members and was a letter of support for Chief Lyons." Pet. Exh. 24.

Even though they cite to RSA 91-A:3, I (c), petitioners actually argue that the minutes are incomplete or misleading in that they fail to include the language of the letter, and only state that a letter of support was received. The Court addresses below the sufficiency of the minutes.

i) Accuracy of Minutes

Petitioners' argument that the minutes of the Board's April 4, 2011 nonpublic session are inaccurate misapprehends the statutory standard which minutes must meet. "Minutes are not required to include stenograpnic or verbatim transcripts." AG Mem. at 17, citing DiPietro v. City of Nashua, 109 N.H. 174 (1968). The minimum requirements for what minutes must contain are set forth in RSA 91-A:2, II. While the minutes of the April 4, 2011 and other meetings of the Board may not be as detailed as petitioners may wish, the question before the Court is whether they are so deficient as to violate RSA [45] chapter 91-A. The Court cannot conclude that having to go through the extra step of requesting the letter -which is accurately described in the minutes themselves- renders the minutes of the April 4, 2011 statutorily deficient.

The Court arrives at the same conclusion with respect to the minutes of the May 23, 2011 meeting. The minutes contain the following language. "Mr. Northcott asked Attorney Lauren if he thought the statement of County Police Departments would be considered a specious statement. Attorney Lauren began praising the Chief's demeanor in court. Mr. Northcott withdrew his question to Attorney Lauren." Pet. Exh. 25.

On June 1, 2011, Attorney David Lauren emailed LaPlante, addressing the Board. He acknowledged that the above-quoted language "is correct as far as it goes," but stated that it fails to indicate the context of his comment. Pet. Exh. 26. Lauren set forth the context and explained that he was concerned that "the minutes tend to indicate that [he] never responded directly to the question asked [] and was simply bringing up unrelated matters when, in actuality, this was not the case." Id. Petitioners assert that at the next meeting, Northcott moved to attach Lauren's letter to the minutes of the May 23, 2011 meeting, and the vote passed unanimously. Pet. Exh. ¶ 56. The exhibit to which they cite, however - the minutes of the Board's July 25, 2011 meeting, Pet. Exh. 27 - does not reflect such a vote. Nevertheless, Petitioner admitted that the Board attached Lauren's letter to the meeting minutes both in its Answer (Answer ¶ 56) and at the hearing. Petitioners argue that by attaching Lauren's letter rather than physically amending the minutes of the May 23, 2011 meeting, the Board [46] concealed from the public the issue of whether the minutes had misquoted Lauren. Pet. ¶ 57.

The Right-to-Know Law sets forth very basic requirements for minutes. See RSA 91-A:2, II. "[W]henever a quorum of any board is present at a meeting, minutes of the meeting must be taken and those minutes must include the names of members present, the persons appearing before the body or agency, and a brief description of the subject matters discussed." 13 P. Loughlin, supra § 705, at 19-5. The description contained in the May 23, 2011 meeting minutes meets these basic statutory requirements.

Insofar as petitioners allege that the Board engaged in concealment when it attached Lauren's letter to the minutes rather than amending the minutes themselves, the assertion is speculative and easily leads to the opposite conclusion. Attaching a letter which sets forth a grievance in the author's own words does not comport with the definition or spirit of concealment. By attaching the letter, the Board not only made available to the public Lauren's position in its entirety, but also indicated that Lauren's letter set forth his own recollection of events. The Board opted not to reconstruct how the exchange on May 23, 2011 transpired or to choose what language from Lauren's letter to include in the minutes: instead, it attached to the minutes and made publicly available Lauren's own unabridged account of events. These actions did not violate the letter or the spirit of the Right-to-Know Law.

Next, petitioners assert that the Board had attempted to conceal "things that are embarrassing to the board and deserve to be known by the public." Pet. [47] ¶ 36. Petitioners refer to the minutes of the Board's April 4, 2011 meeting, according to which "Mr. Northcott reported that he had checked with a source of the FBI Academy to confirm Chief Lyons [sic] attendance in the 218^th Class of the FBI Academy in 2004." Pet. Exh. 24. The minutes of the July 25, 2011 meeting state that "Mr. Cameron continued his criticism of minutes for prior meetings and opened non-public meeting minutes." Pet. Exh. 27. Petitioners assert, and the Board admits, that Northcott did not, in fact, contact a source at the FBI Academy. Pet. ¶ 60; Answer ¶ 60. Petitioners further assert -and the Board denies- that Northcott admitted to Cameron that the minutes of the April, 4, 2011 meeting were incorrect, despite having voted to approve these minutes. Pet. ¶ 61; Answer ¶ 61.

Petitioners argue that the summary contained in the July 25, 2011 minutes concealed the asserted inaccuracy of Northcott's representation and that Northcott improperly discussed an internal issue with an outsider: "the July 25^th 2011 minutes concealed facts surrounding the real issue while insinuating that the concerns are of a minor nature." Id. ¶¶ 61, 63. The issue of whether Northcott admitted that the minutes of the April 4, 2011 meeting were incorrect is disputed, and petitioners have offered insufficient proof in support of their assertion. Moreover, it is unclear whether such an assertion, even if proven, reflects a violation of the Right-to-Know Law. Even were the Court were to discard Northcott's vote approving the April 4, 2011 minutes, petitioners state that the minutes were approved unanimously. Id. ¶ 61. In other words, notwithstanding Northcott's vote, a quorum approved the minutes.

[48] It also bears noting that a vote to approve the minutes is not an attestation to the truthfulness of all assertions contained therein. Rather, it represents that the Board accepts the record as correct, i.e. as reflecting that the assertions, truthful or not were made. Lastly, petitioners offer no evidentiary support, beyond a naked allegation, that "[t]he board failed to maintain important documents regarding the hiring of the Police Chief." Id. ¶ 63.

Next, petitioners assert that the June 20, 2011 minutes improperly attribute to Cameron certain statements which were, in fact, made by Chief Lyons. Id. ¶ 64; Pet. Exh. 12. "The fact that the Chief was concerned about this issue was concealed by this action." Id. ¶ 65. The Board denies the misattribution and concealment. Answer ¶¶ 64, 65. First, petitioners provide little evidentiary support for their assertions that the statement was misattributed, or that this was done with the purpose of concealing Chief Lyons' concerns. Second, it is not clear whether such misattribution, even if proven, would point to a violation of the Right-to-Know Law. Petitioners cite to the preamble to the Right-to-Know law, RSA 91-A:1. Pet. ¶ 71. The Court appreciates the spirit of open government and transparency which underpins the statute, but is reluctant to accept a misattribution as evidence of statutory deficiency or of an intent to conceal.

Lastly, petitioners assert that the minutes fail to reflect the emotions behind certain speakers' statements. Id. ¶¶ 66-70. "Even if the municipal records are incomplete in certain particulars, if it appears from such records that the proceedings were substantially correct, presumptions will be indulged in favor [49] of the sufficiency of the record and the validity of the corporate acts." 13 P. Loughlin, supra § 703, at 19-3. The minimum requirements for statutorily sufficient minutes are set forth above. Also as explained above, the Court is reluctant to infer from any perceived inaccuracy an intent to conceal or distort.

For the reasons noted above, the Court finds that the Board violated the Right-to-Know Law in the following instances.

a. The Board violated the Right-to-Know Law when it failed to treat the January 5 and January 20, 2011 four-town meetings as meetings subject to the statutory requirements of RSA chapter 91-A.

b. The Board violated the Right-to-Know Law when it held a meeting without notice on October 27, 2011 at the Police Department.

c. The Board violated the Right-to-Know Law when it held a meeting without timely notice on October 31, 2011 at the Police Department.

d. The Board violated the Right-to-Know Law when it conducted a meeting with Lindenfeld on November 18, 2011 without complying with the statutory requirements of RSA chapter 91-A.

e. The Board violated the Right-to-Know Law when it engaged in out-of-meeting electronic communications on June 3, July 19, and July 18, 2011 and when it engaged in out-of-meeting communications with non-members on at least one occasion. Alternatively, the Board violated the Right-to-Know Law when it held improper electronic meetings on June 3, July 19, and July 18, 2011.

[50] f. The Board violated the Right-to-Know Law when it ignored Cameron's initial request for the January 3, 2011 nonpublic session minutes and failed to provide an explanation for the nondisclosure.

g. The Board violated the Right-to-Know Law when it failed to disclose timely the June 25, 2011 email from MRI to Northcott.

h. The Board violated the Right-to-Know Law when it disclosed to Cameron a statutorily deficient copy of the minutes of the February 1, 2011 nonpublic session.

i. The Board violated the Right-to-Know Law when it engaged in improper out-of-meeting communications or, alternatively, held a statutorily noncompliant electronic meeting with the purpose of editing the minutes of the September 26, 2011 meeting.

The Court turns to certain issues regarding the scope of relief which the Court may consider. With respect to invalidation, "[t]he court may invalidate an action of a public body or agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation." RSA 91-A:8, II. The trial court retains the discretion to award this type of relief. See Lambert v. Belknap Cty. Convention, 157 N.H. 375, 381 (2008). The circumstances present here do not justify invalidation. Compare with id. at 382 ("In these circumstances, the public's need for scrutiny was critical since there was no other manner in which members of the public could determine how their representatives voted such that they could then hold the representatives accountable."); see also 13 P. Loughlin, supra § 690, at 18-46.

[51] Petitioners' request for "the immediate production of public records, documents, communications, notes, drafts, minutes, emails, conversations, billings, logs, fees, costs, and any other communications that assists public awareness covered during the open and transparent operation of government[]" (Pet. ¶ 4) is overly broad. "Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release." RSA 91-A:4, IV (emphasis added).

Insofar as petitioners attempt to ensure timely future treatment of their requests under the Right-to-Know Law, injunctive relief addresses this concern. The Court, however, cannot consider petitioners' expansive request for production to constitute a request for records "reasonably described." RSA 91-A:4, IV. Directing a public body to release all records which may assist public awareness would do away with the exemptions recognized and balancing tests required by the Right-to-Know Law. Furthermore, RSA 91-A:8, I-a punishes parties whose "lawsuit is [found to be] in bad faith, frivolous, unjust, vexatious, wanton, or oppressive." RSA chapter 91-A clearly requires at least minimal specificity and contemplates a limit on the breadth of a request. See, e.g., 14A P. Loughlin, supra Form 63, Request for Information Pursuant to RSA 91-A, at 88.

The following orders are entered:

1. The parties shall have 10 (ten) days from the issuance of the orders of notice to brief the sole issue of whether the confidentiality [52] exemption applies to the disclosure of records in the possession of counsel, which concern MRI's inquiry into the Chief's dismissal. The Board is also directed to disclose any records which it possesses concerning MRI's inquiry into the Chief's dismissal. Should it wish to argue that such records fall under the confidentiality exemption, the Board shall have 10 (ten) days from the issuance of the orders of notice to make such disclosure and/or argument.

2. The Board shall produce any recordings based on which it made the edits to the September 26, 2011 meeting minutes.

3. The Board is enjoined from further violations of the Right-to-Know Law. RSA 91-A:8, III.

4. Petitioners shall be awarded court costs, but not attorney's fees. RSA 91-A:8, I. Because petitioners appear pro se, attorney's fees are not be considered.

5. All other requests for relief are denied.

SO ORDERED.

   1/31/12       /s/   

Date Philip P. Mangones

Presiding Justice

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¹ There is a disparity as to the amount. Pet. ¶ 9.

² In response to Cameron's second request for documents relating to the Board's relationship with MRI, Respondent disclosed an email from MRI to Northcott dated June 25, 2011 Pet. ¶ 19. The email indicates that MRI sent to each member of the Board, as well as its administrative assistant, a memo listing the documents which MRI needed in order to "assist in our requested review of the Police Department." Pet Exh. 9. The email concluded with, "I look forward to meeting with you on Tuesday June 28th[,]" and suggests that the Board met directly with MRI. Id. Petitioners assert that this email refutes the Board's position that all contact between it and MRI was through counsel. Pet. ¶ 19. However, Respondent did not argue in their pleadings or at the hearing that the Board had no direct contact with MRI: they stated that the Board did not hire or contract with MRI.

³ Respondent admits that counsel possesses certain records, but argues that these records are privileged. Answer ¶ 25. Petitioners allege, but offer no evidence, that a straw man may have hired MRI. Id. ¶ 25 ("It is also suspected that the board may have appointed an outside entity to act as surrogate in regard to all matters involving MRI, including billing. If an outside entity is, in fact, acting in this manner on the town's behalf, public records may be held by that firm. If so, such records are still public records that remain under board control and should have been released in accordance with RSA 91-A:4.") The Court cannot direct an unknown and speculative entity to produce unknown and speculative records which it obtained pursuant to an unknown and speculative relationship with the Board and/or MRI. Accordingly, petitioners' request for "all records being maintained by any separate entity for the board" (Pet. Prayer 2 (b)) shall be construed as applying solely to documents in counsel's possession. The Board represented at the hearing that it possesses no documents beyond those which it has already disclosed to petitioners.

⁴ "Subject to the provisions of RSA 91-A:3 [governing nonpublic sessions], all meetings, whether held in person, by means of telephone or electronic communication, or in any other manner, shall be open to the public." RSA 91-A:2, II.

⁵ See, e.g., Hampton Police Assoc., 162 N.H. at 16 ("We hold, however, that the attorney-client privilege may apply to information in a billing record that reveals 'the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law.' ... In the context of the Right-to-Know Law, the party seeking nondisclosure of attorney billing statements because of the attorney-client privilege bears the burden of proof.")

⁶ "I am Joseph E. Ryan, senior consultant for Municipal Resources, Inc., I along with Mike Magnant have been assigned to assist in your requested review of the police department." Pet. Exh. 10.

⁷ The subdivision to which RSA 32:12 refers requires that expenditures correspond to appropriations. "No board of selectmen, school board, village district commissioners or any other officer, employee, or agency of the municipality acting as such shall pay or agree to pay any money, or incur any liability involving the expenditure of any money, for any purpose in excess of the amount appropriated by the legislative body for that purpose, or for any purpose for which no appropriation has been made, except as provided in RSA 32:9-11." RSA 32:8.

⁸ Sandy LaPlante ("LaPlante") is the Board's administrative assistant.

⁹ PILOT stands for "payment in lieu of taxes." Resp. Memo Law p. 4.

¹⁰ This exhibit, Plf. Exh. 1, was submitted by petitioners at the hearing. Exhibits referenced as Pet. Exh. are attached to the petition.

¹¹ On December 16, 2011, petitioners submitted to the Court a compilation of the Board's nonpublic session minutes.