Ward v. Town of Stoddard, Doc. No. 213-2014-CV-040 (Cheshire Super. Ct., May 23, 2014) (Kissinger, J.)



CHESHIRE, SS. No. 14-CV-040





Fred Ward brought this action against the Town of Stoddard seeking injunctive relief pursuant to RSA 91-A:7. The Town moves to dismiss Mr. Ward's petition. In response, Mr. Ward objects. Both parties have requested attorney's fees in connection with this case. Based on the following, the Town's motion to dismiss is GRANTED. Additionally, the parties' requests for attorney's fees are DENIED.

The standard of review applied to a motion to dismiss for failure to state a claim upon which relief may be granted is whether Mr. Ward's claims "are reasonably susceptible of a construction that would permit recovery." See Hobin v. Coldwell Banker, 144 N.H. 626, 628 (2000). The threshold inquiry involves testing the facts alleged in the pleadings against the applicable law. See William v. O'Brien, 140 N.H. 595, 598 (1995). In rendering such a determination, the Court "assume[s] the truth of all wel|-pleaded facts alleged by Mr. Ward and construe[s] all inferences 'in the light most favorable to Mr. Ward.'" Bohan v. Ritzo, 141 N.H. 210 (1996). Dismissal is appropriate "[i]f the facts as pled cannot constitute a basis for legal for relief. Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822, 825 (1998). Allegations that are not we||-pleaded [2] will not be assumed to be true. Snierson v. Scruton, 145 N.H. 73, 76-77 (2000). Mindful of this standard, the Court sets forth the facts of this case below.

Mr. Ward served on the ZBA for the Town of Stoddard. Before resigning from his position on the ZBA, Mr. Ward presided with other members of the ZBA over public hearings regarding a special exception application submitted by New Cingular Wireless, PCS ("AT&T"). The ZBA approved this application. (Compl. ¶ 5.) After approval, there were four requests for rehearing by parties who disagreed with the approval. However, the approval of the special exception application ultimately lead to litigation in the Federal District Court for the District of New Hampshire ("AT&T litigation"). During the litigation, the parties filed cross-motions for summary judgment, which were subsequently denied. However, according to Mr. Ward, the order rendered by the federal district court cast him in an unfavorable light. Eventually, the parties settled the case.

Following the settlement, Mr. Ward filed a RSA 91-A request on June 10, 2013. His request included materials associated with the AT&T litigation and materials regarding his tenure on the ZBA. With the exception materials which it maintains are exempt from the disclosure requirements by the attorney-client privilege, the Town agreed to and has provided any responsive materials in its possession available for Mr. Ward's inspection. On August 27, 2013, Mr. Ward sent a follow-up request for documents that were covered by the attorney-client privilege that the Town had not produced. The parties engaged in extensive discussions, and the Town stated that while Mr. Ward was permitted to see certain of the Town's litigation-related documents, he would not be entitled to view documents protected by the attorney-client privilege.

[3] On November 4, 2013, Mr. Ward again requested access to documents the Town maintains are protected by the attorney-client privilege. Counsel for Mr. Ward sent a letter to counsel for the Town, arguing that under RSA 91-A:3, III, the attorney-c|ient privilege expires at the close of litigation. Furthermore, this letter stated that Mr. Ward would file suit against the Town if he did not receive the requested the materials. The Town replied that the requested materials were protected and would not be disclosed.

Following this request, the Town received another email from Mr. Ward, requesting "[d]ocuments of substantial interest which need to be examined." According to the Town, these documents, while phrased differently, were essentially the same as those sought by his earlier requests. After the Town denied this request with respect to documents which it maintains are exempt from disclosure by the attorney-client privilege, Mr. Ward brought the aforementioned action against the Town, seeking injunctive relief.

The Town now moves to dismiss Mr. Ward's petition, arguing that the remaining documents Mr. Ward seeks to examine are exempt due to their privileged nature. In response, Mr. Ward argues that the Town has not met its burden of proving that these documents are exempt from disclosure. Moreover, Mr. Ward argues even if these documents are privileged, the Town has waived that privilege. Accordingly, Mr. Ward argues that the Town must disclose the requested documents. In addition to these arguments, both parties have requested an award of attorney's fees in connection with this litigation. The Court addresses the parties' arguments in turn.

"The interpretation of a statute, including the Right-to-Know Law, is to be decided ultimately by [the] court." WMUR Channel Nine v. N.H. Dept. of Fish & Game, 154 N.H. [4] 46, 47 (2006) (citing Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 553 (2002)). The Court must first "look to the plain meaning of the words used in the statute and will consider legislative history only if the statutory language is ambiguous." Id. at 48. "[The Court] resolves[s] questions regarding the [Right-to-Know] law with a view of providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents." Id.

The Town argues that Mr. Ward is not entitled to review the materials he seeks. Specifically, because the Town has only withheld documents protected by attorney-client privilege, the Town argues that dismissal of the petition is appropriate. In response, Mr. Ward argues that the documents he seeks are not exempt from disclosure because they are not protected by attorney-client privilege. Moreover, even if they are protected, Mr. Ward argues that the Town waived the attorney-client privilege and therefore must disclose them.1

Pursuant to RSA 91-A:4, every citizen is entitled to inspect records "in the possession, custody or control" of public bodies or agencies. While broad, the application of RSA 91-A:4 is not without limitation. RSA 91-A:5 provides certain exemptions from the broad based disclosure contemplated in RSA 91-A:4. Specifically, RSA 91-A:5 exempts "confidential, commercial, or financial information." In the context of the Right-to-Know Law, "[c]ommunications protected under the attorney-client privilege fall within the exemption for confidential information." Prof. Fire Fighters of N.H. [5] v. N.H. Local Gov't Ctr., 163 N.H. 613, 614 (2012). That privilege is commonly articulated 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. (citing Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966)).

Here, Mr. Ward seeks documents that are exempt from disclosure because they are protected by the attorney-client privilege.2 Moreover, despite arguments to the contrary, the Town did not waive the attorney-client privilege. Mr. Ward attempts to argue that when counsel for the Town spoke to him regarding the impending litigation, this action somehow waived the attorney-client privilege for all documents associated with the litigation. This argument is unavailing. The Town is the holder of the attorney-client privilege here, not Mr. Ward. He has failed to articulate any basis for finding a waiver merely because counsel for the Town spoke with him about the case. Therefore, the Court rules that the Town did not waive the attorney-client privilege. Having determined that the documents are protected by the attorney-client privilege, Mr. Ward seeks records that are exempt under 91-A; as such, the Town acted properly in denying his request. As a result, the Town's motion to dismiss is GRANTED.

Mr. Ward contends that the Court should award him attorney's fees in connection with seeking information from the Town. Under RSA 91-A:8, I:

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 [6] 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.

An award of attorney's fees under the statute requires the Court to find the following: (1) Mr. Ward's lawsuit was necessary to make the information available; and (2) the defendant knew or should have known that its conduct violated the statute. See ATV Watch v. New Hampshire Dept. of Transp., 161 N.H. 746 (2011).

Mr. Ward is not entitled to attorney's fees in connection with this litigation. As previously noted, the Town has provided all documents required by the statute; therefore, this lawsuit was not necessary to make the information available. Furthermore, the Town did not violate the statute. Thus, neither prong of this test is met. As a result, Mr. Ward's request for attorney's fees is DENIED.

Finally, the Town argues that it is entitled to attorney's fees in connection with defending this case. RSA 91-A:8, I-a provides: "The court may award attorney's fees to a public body or public agency or employee or member thereof, for having to defend against a lawsuit under the provisions of this chapter, when the court finds that the lawsuit is in bad faith, frivolous, unjust, vexatious, wanton, or oppressive." Upon [7] consideration of the statutory language as well as Mr. Ward's case, the Court concludes that the Town is not entitled to an award of attorney's fees in connection with defending this lawsuit. Therefore, the Town's request is also DENIED.


   5/23/14       /s/   

DateJohn C. Kissinger, Jr.

Presiding Justice

1 In his petition, Mr. Ward asserts that the Town needed to disclose these materials pursuant to the plain language of RSA 91-A:3 (II)(e). However, since the filing of his petition, Mr. Ward has abandoned this position. As a result, the Court will analyze his request for disclosure under the relevant portions of RSA chapter 91-A.

2 Mr. Ward argues that a Vaughn Index is necessary to prove that the documents fall within an exemption under RSA 91-A:5. However, the Town correctly notes that the nature of the request itself implicates an exemption, given the lack of ambiguity and uncertainty regarding Mr. Ward's requests and the nature of the documents. Therefore, a Vaughn Index was not required.