Every v. Town of Littleton, Doc. No. 215-2016-CV-346 (Grafton Super. Ct., April 5, 2017) (Bornstein, J.)

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No. 215-2016-CV-00346

Robert Every


Town of Littleton


Proceeding pro se, the plaintiff, Robert Every, alleges that the defendant, the Town of Littleton, violated RSA chapter 91-A when the Littleton Selectmen allegedly failed to respond to the plaintiff's request for a meeting and when the defendant purportedly refused to accommodate the plaintiff's request for certain records. (Index # 1.) The defendant now moves to dismiss. (Index # 6.) The plaintiff objects. (Index # 7.) Based on the record, the parties' arguments, and the applicable law, the Court finds and rules as follows.

I. Factual Background

Assuming the plaintiffs allegations are true and construing all reasonable inferences in his favor, the Court finds that the record supports the following relevant facts. On July 6, 2016, the plaintiff received a summons charging him with a violation of a Littleton Sewer Ordinance. (Compl. ¶ 1.) In response, the plaintiff delivered a series of letters to the Littleton Selectmen requesting a meeting with the Littleton Town Manager and the Littleton Town Prosecutor to discuss the charges. (Id. ¶ 2; Ex. 1 at 1.) The plaintiff received no response to his letters, nor did the Selectmen discuss the plaintiff's request at any public Selectmen meeting. (Id. ¶ 3.)

[2] Sometime after a trial date had been scheduled, the plaintiff made requests to the Littleton Planning and Zoning Secretary and the Littleton Head of Public Works for allegedly "public documents" relating to the sewer plan of a local business. (Id. ¶ 5.) The plaintiff alleges that these documents were "needed for his defense." (Id. ¶ 7.) Both the Planning and Zoning Secretary and the Head of Public Works promptly informed the plaintiff that they would not supply the records and that the plaintiff should request the records through the Town Prosecutor. (Id. ¶ 7.) The plaintiff then submitted a discovery request to the Town Prosecutor, who subsequently refused to provide the records on relevance grounds. (Id.; Obj. ¶ 5.) The charges against the plaintiff were eventually dismissed. (Obj. ¶ 7.)

II. Legal Standard

When ruling on a motion to dismiss, the Court must determine whether the plaintiff's allegations stated in his Complaint "are reasonably susceptible of a construction that would permit recovery." Plourde Sand & Gravel v. JGI Eastern, Inc., 154 N.H. 791, 793 (2007) (quoting Berry v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 152 N.H. 407, 410 (2005)) (internal quotations omitted). In doing so, the Court must "assume all facts pled in the plaintiff's writ are true, and . . . construe all reasonable inferences drawn from those facts in the plaintiff's favor." Id. (quoting Berry, 152 N.H. at 410). However, the Court need not "assume the truth of statements . . . that are merely conclusions of law" not supported by "predicate facts." Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 611-12 (2010). The Court should test these facts against the applicable law and deny the motion to dismiss "[i]f the facts as alleged would constitute a basis for legal relief." Starr v. Governor, 148 N.H. 72, 73 (2002). Dismissal is [3] appropriate if the facts alleged in the Complaint do not constitute a basis for relief. See Jay Edwards, Inc. v. Baker, 130 N.H. 41, 46-47 (1987) (finding dismissal was appropriate where plaintiff's Complaint failed to plead sufficient facts supporting the elements of the claims).

III. Discussion

The defendant now moves to dismiss, arguing that RSA chapter 91-A "contains no provision mandating a board of selectmen or town manager to grant any particular citizen's request for a meeting," (Mot. Dismiss ¶ 8 (emphasis in original)), and that Littleton officials did not violate RSA chapter 91-A by referring the plaintiff to the Town Prosecutor to acquire documents connected to an ongoing litigation. (Id. ¶¶ 11-15.)

Regarding the defendant's first argument, the Court agrees that RSA chapter 91-A did not require the Selectmen or the Town Manager accommodate the plaintiff's request for a meeting, or even to respond to the plaintiff's request. Accordingly, the plaintiff fails to state an RSA chapter 91-A violation to the extent his claim is based on the Selectmen's refusal to hold a meeting at the plaintiff's request.

The Court also agrees that Littleton officials did not violate RSA chapter 91-A by refusing to process the plaintiff's request for records. Although RSA chapter 91-A does not explicitly address the treatment of document requests pertinent to a pending criminal prosecution of the requesting party, federal jurisdictions have held that the analogous Freedom of Information Act ("FOIA") "is not a substitute for discovery in criminal cases," Roth v. U.S. Dept. of Justice, 642 F.3d 1161, 1177 (D.C. Cir. 2011), "[n]or does FOIA otherwise expand the scope of discovery available in a criminal case." United States v. Brooks, 449 Fed. Appx. 91, 93 (3d Cir. 2011); see 38 Endicott St. N. v. [4] State Fire Marshal, 163 N.H. 656, 660 (2012) ("In interpreting provisions of the New Hampshire Right-to-Know Law, we often look to the decisions of other jurisdictions interpreting similar provisions of other statutes for guidance, including federal interpretations of the federal Freedom of Information Act (FOIA)."); see also N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95, 106 (2016) (adopting an attorney work product privilege designed to ensure Right-to-Know requests do not "circumvent civil discovery rules"). Accordingly, as the plaintiff acknowledges that the "records being sought were anticipated to be used to defend the plaintiff in his criminal case," (Obj. ¶ 3), the Littleton officials acted appropriately in referring the plaintiff's request to the Town Prosecutor to ensure the parties complied with Rule 12 of the New Hampshire Rules of Criminal Procedure.

IV. Conclusion

For the foregoing reasons, the Court GRANTS the defendant's Motion to Dismiss.


Dated:    4/5/17       /s/   

Peter H. Bornstein

Presiding Justice