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THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
HILLSBOROUGH, SS. SUPERIOR COURT
Weare Powerful
v.
Town of Weare, et al.
Docket No. 94-E-182
OPINION AND ORDER
LYNN, J.
This suit under the Right-to-Know Law, RSA Chapter 91-A, was commenced by Weare Powerful,1 a non-profit group composed of citizens of the Town of Weare ("Town"), against the Town, certain present and former members of the board of selectmen, the town administrator and town counsel, by a petition filed in this court on June 6, 1994. In the petition, plaintiffs alleged that the defendants had engaged in a pattern of violations of various provisions of RSA 91-A by, inter alia: (1) failing to take roll call votes prior to entering nonpublic session at meetings of the board of selectmen; (2) failing to cite specific reasons for entering nonpublic session; (3) failing to keep minutes of [2] nonpublic sessions; (4) failing to confine the subject matter of nonpubiic sessions of the board of selectmen to the specific topics cited as reasons for entering nonpublic session; (5) requiring that all citizen requests for access to town records or information be made in writing, so that the defendants could monitor the identities of the requestors and the nature of information sought; (6) establishing an automatic 5-day waiting period for the disclosure of all town records and information, even that which is readily available; (7) refusing to disclose contracts between the town and its attorneys and administrators, and reports prepared by independent investigators/consultants concerning (a) the operation of the town police department and (b) an alleged diversion of the proceeds of timber sales by employees of the town highway department; and (8) attempting to negotiate a secret settlement of a lawsuit between the Town and one or more of its citizens. Cote v. Town of Weare, No. 91-E-985 (Hillsborough Cty.-N.D.). The petition included a request for immediate ex parte relief, including issuance of an injunction against continued violations of RSA 91-A and the appointment of a guardian ad litem to oversee the Town's compliance with that statute. This request was denied by the court (Groff, J.) on June 7, 1994. [3] Thereafter, a hearing on the merits was held before the undersigned on June 28 and November 4, 1994.
At the outset of the hearing counsel for the plaintiffs advised the court that, despite the defendants alleged violations of the Right-to-Know Law, plaintiffs were not seeking to have any order or decision of the board of selectmen or the Town set aside or invalidated. See RSA 91-A:8, II. Rather, the relief requested was limited to issuance of an order requiring disclosure of the records allegedly improperly withheld, an injunction against further violations of the statute and an award of attorney's fees and costs to the plaintiffs. Additionally, prior to the continuation of the hearing on November 4, 1994, the parties further advised the court that they had been able to resolve all their outstanding disputes, save for the two issues discussed below, and that the defendants were willing to agree to the entry of a permanent injunction requiring the Town henceforth to fully comply with all the provisions of RSA Chapter 91-A.2
[4] 1. The Timber Sale Report
The first of the two open issues to be resolved by the court concerns the plaintiffs' demand for access to a report prepared by a private investigator retained by the town counsel, at the request of the board of selectmen, to investigate a May, 1993 incident involving the alleged misappropriation by employees of the Town's highway department of the proceeds of sale of certain timber which had been cleared from areas within the Town's roadside right of way. The court has reviewed this report in camera. The investigation revealed that although a check from a lumber mill representing proceeds of the timber sale had been issued to a highway department employee rather than drawn in the name of the town itself, there was no intent to misappropriate the funds to the personal benefit of that individual or anyone else.3 Rather, it [5] apparently was the belief of the highway department employees that the timber in question belonged not to the Town, but to the landowners whose properties abutted the right of way. When certain landowners declined to claim the trees removed from the right of way, the employees determined to sell them to a lumber mill and use the proceeds to purchase equipment needed by the highway department, including a trailer and a new sink for the department's cafeteria, and to replenish the department's "coffee fund." The amount realized from the sale turned out to be significantly more than the employees had anticipated, and when the matter came to the attention of the town administrator and the selectmen, the proceeds were promptly deposited in full into the Town's general fund.
The Town advances two arguments in opposition to disclosure of the report. First, it contends that the report constitutes attorney work product because in preparing the report the investigators were acting under [6] direction of town counsel. I reject this argument inasmuch as the Town has not shown that the report was prepared in anticipation of litigation, a necessary prerequisite to invocation of the work product doctrine. See Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385 (1947); Riddle Spring Realty Co. v. State, 107 N.H. 271, 274 (1956); 23 Am. Jur. 2d. Depositions and Discovery § 53 (1983).4
Second, the Town asserts that the report constitutes a record "pertaining to internal personnel practices" which is exempt from disclosure pursuant to RSA 91-A:5, IV. Although presenting a clear question, on balance I reject this argument as well. In Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993), the court held that documents prepared during an internal police department investigation of one of its officers fell within the aforesaid exemption. The court offered two rationales for [7] its decision. First, while conceding that the phrase "internal personnel practices" was "quite broad" and might even be deemed ambiguous, the court concluded that the files there in question fell within the exemption because they document[ed] procedures leading up to internal personnel discipline, a quintessential example of an "internal personnel practice." Id. at 626. Second and more importantly, the court placed heavy reliance on the legislative history of RSA 516:36, II (Supp. 1993), which clearly evinced a legislative determination that all records pertaining to internal investigations of the conduct of law enforcement officers were to be exempted from disclosure under the Right-to-Know Law. Id. at 626-27.
The report at issue here pertains to the conduct of employees of the Town's highway department, who obviously are not law enforcement officers. However, unlike the situation in Fenniman, where the files at issue apparently included memoranda actually documenting disciplinary proceedings against the officer, in this case there is no indication that disciplinary action was ever initiated against the highway department employees, and thus the report contains no reference to such proceedings. In addition, as noted previously, see note 3, the county [8] attorney has concluded his review of the matter and decided against bringing criminal charges. Therefore, there is no danger that disclosure will compromise an on-going criminal investigation. Cf. RSA 91-A:3, II (e). Lastly, based on my in camera review of the report, I do not find it to contain any information of a particularly sensitive nature or the disclosure of which would likely be damaging to anyone's reputation. Under all the circumstances and given the Right-to-Know Law's stated purpose "to ensure the greatest possible public access to the actions, discussions and records of all public bodies," RSA 91-A:1; see Mans v. Lebanon School Board, 112 N.H. 160, 162-63 (1972), I conclude that the benefits to the public of disclosure of the report outweigh the benefits to the government and/or the affected employees of nondisclosure. Chambers v. Gregg, 135 N.H. 478, 481 (1992).
2. Attorneys Fees
RSA 91-A:8 provides, in pertinent part:
I. If any body or agency or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a public record or refuses access to a public proceeding to a person who reasonably requests the same, such body, agency, or person 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 make the information available or the proceeding open to the public. Fees shall not [9] be awarded unless the court finds that the body, agency or person knew or should have known that the conduct engaged in was a violation of this chapter or where the parties, by agreement, provide that no such fees shall be paid. In any case where fees are awarded under this chapter, upon a finding that an officer, employee, or other official of a public body or agency has acted in bad faith in refusing to allow access to a public proceeding or to provide a public record, the court may award such fees personally against such officer, employee, or other official.
Based on the evidence presented at the hearing, it is clear that prior to May, 1994 the Town's board of selectmen failed to adhere to the public meeting requirements mandated by the 1991 amendments to the Right-to-Know Law. See Laws 1991, Chapter 217. Specifically, during the period from January 1, 1992 (when the amendments took affect) through May 11, 1994, the board of selectmen failed to keep minutes of nonpublic sessions as required by RSA 91-A:3, III (Supp. 1993). There was also evidence that the selectmen would more or less routinely amend the minutes of their public sessions to reflect topics that had not actually been discussed at the meetings and that from time to time during nonpublic sessions the selectmen would stray into discussions of issues not germane to the cited purpose for entering nonpublic session. See RSA 91-A:2, II; 91-A:3, I(c). Following his election as a new selectman in March, 1994, Douglas Hatch raised questions as to the Town's compliance with the Right-to-Know Law. This resulted in the board of [10] selectmen meeting with town counsel on May 11, 1994, after which new procedures were adopted that comply with the requirements of the law.
At the hearing the parties devoted considerable energy to the task of attempting to demonstrate whether the board of selectmen acted reasonably or unreasonably in failing to bring their procedures into compliance with the law prior to May of this year. I find it unnecessary to resolve the conflicting evidence on this point5 since even if it were determined that the defendants should have realized earlier than they did that their procedures were deficient, this would not entitle plaintiffs to attorney fees. The reason is that the statute authorizes the award of fees only when a body or agency "refuses to provide a public record or refuses access to a public proceeding [11] to a person who reasonably requests the same", and in this case there is no evidence that prior to the election of Selectman Hatch anyone had ever requested that minutes be kept of the selectmen's nonpublic sessions or had otherwise challenged or protested the board's procedures with respect to meeting minutes. Moreover, the evidence is undisputed that once Hatch did raise such a challenge in April, 1994, the board promptly addressed the matter by reviewing its procedures, meeting with town counsel and taking corrective action the following month.
Beyond the above challenge to the board of selectmen's minute-keeping procedures, plaintiffs also point to certain other conduct by the defendants as justifying an award of attorneys fees. Specifically, plaintiffs complain that, contrary to the requirement of RSA 91-A:4, IV that there be no delay in the release of records which are "immediately available," the defendants had adopted an informal policy of automatically imposing a 5-day waiting period for disclosure of public records (other than meeting minutes) even when (a) the records were readily accessible, (b) the Town employee receiving the request was not too busy to retrieve them immediately and (c) there was no question that the records were properly subject to disclosure under the Right-to-Know [12] Law. Compare Brent v. Paquette, 132 N.H. 415, 424-25, 430 (1989) (holding that requiring a citizen to make an advance appointment to review public records can be an appropriate practice under some circumstances, as can delaying disclosure when public officials are too busy to supply records immediately or there is a legitimate question as to the propriety of releasing the records).
Although there was testimony to the contrary, based on all the evidence presented at the hearing, I find that the Town had in fact adopted such a practice and that its implementation resulted, at a minimum, in several instances of delayed disclosure of records or information requested by one or more of the named plaintiffs herein.6 [13] To cite just one example, when plaintiff Debra Cote made a request on February 1, 1994 for "written results of Joe Kelley's investigation into the selectmen's concerns over the overtime procedures in the police department", the selectmen (including Selectman Hatch, who is not named as a defendant in this action) did not respond until April 20, 1994, and in their response they indicated that "[t]he information you requested does not exist." It was later discovered that such records did in fact exist, having been prepared on or about December 15, 1993. When Town Administrator Kelly was asked about this discrepancy at the hearing, he attempted to justify the Town's response by claiming that he thought Cote was requesting a "report" on police overtime, whereas he regarded the correspondence and other records concerning the matter as a "communication." Needless to say, this purported distinction is too transparent to require serious discussion; clearly the records in question should have been promptly disclosed to Ms. Cote.
On the other hand, I feel compelled to observe that at least some of the plaintiffs' complaints appear to have [14] their genesis in a political dispute among members of the board of selectmen and/or between various factions in the town. Plaintiff Joan Hatch, for instance, apparently seeks to hold only two of the three selectmen responsible for alleged delays in furnishing her with certain requested information or records, even though her husband, as the third member of the board of selectmen, presumably had an equal ability to provide the information to her in a more timely fashion.
In sum, although I believe that there has been a certain amount of gamesmanship on both sides of this controversy, I also find that initiating the lawsuit provided the necessary leverage to spur the Town into compliance with the terms of the Right-to-Know Law. Accordingly, I conclude that an award of attorney's fees and costs is appropriate. Plaintiffs seek such fees and costs in the total amount of $10,903.51. However, taking account of all the facts and circumstances, I find that $4,000.00 represents a reasonable award of fees and costs in this case. I also find it appropriate to assess this amount against the defendant Town only and not against the individual defendants.
[15] Conclusion
For the reasons stated above, the court hereby orders as follows:
1. The report prepared by Southern New Hampshire Investigations, Inc., dated August 2 and August 5, 1993 shall be disclosed to the plaintiffs upon the expiration of the period for taking an appeal from this order, unless such an appeal is taken.
2. The Town of Weare shall pay to the plaintiffs' attorneys fees and costs in the total amount of $4,000.00.
3. The following permanent injunction is entered against the Town of Weare:
(a) Nonpublic sessions of the Weare board of Selectmen shall be conducted ONLY for the purposes set forth in RSA 91-A:3. Every motion to enter nonpublic session shall state the specific exemption relied upon and shall be approved by majority roll call vote of the selectmen.
(b) Discussions and decisions made by the Weare board of selectmen in nonpublic session shall be confined to the matters set out in the motion.
(c) Minutes of nonpublic sessions of the Weare board of selectmen shall be kept and the record or all actions shall be made available for public inspection. Minutes [16] and decisions reached in nonpublic session shall be available for public inspection within 72 hours of the meeting, unless it is determined, by a recorded vote of 2/3 of the members present, that divulgence of the information likely would affect adversely the reputation of a person other than a member of the board or render the proposed action ineffective.
(d) Public documents at the Town of Weare shall be made available for public inspection and copying upon request. No standard waiting period for public documents shall be imposed, and the delay permitted under RSA 91-A:4, IV shall be invoked only when the Town finds that the records requested are not immediately available. The 5-day period shall not be considered a standard delay.
(e) This order is binding upon the Town of Weare and all present and future Town officials.
1 By motion to amend granted on June 28, 1994, David W. Wood, Joan Hatch and Debra Cote, all residents and voters of The Town of Weare, who had allegedly sought and been denied or delayed in access to public information, were added as party plaintiffs.
2 In light of these representations, I am puzzled by the renewed motion to dismiss (Doc. No. 21) and the motion for reconsideration (Doc. No. 20) filed by the defendants on November 14, 1994. After making the aforesaid representations, the defendants and the plaintiffs asked for a brief recess so as to attempt to reach a settlement with respect to the issue of attorney's fees. When they were unable to do so, the court proceeded with the hearing but was given to understand that the only purpose of going forward at that point was to determine whether the conduct of the defendants was such as to justify an award of attorney's fees under RSA 91-A:8, I. Given the defendants' representations that they were willing to have an injunction entered against the Town requiring its future compliance with the Right-to-Know Law and that the only issues left to be decided concerned (1) disclosure of the timber sale investigation and (2) the propriety of an award of attorney's fees to the plaintiffs, I deem these motions to be out of order and, accordingly, they are both hereby denied.
3 The investigative report prepared for the Town was reviewed by a representative of the Hillsborough County Attorney's Office, which ultimately concluded that the incident did not warrant criminal prosecution of any of the individuals involved.
4 The Town's suggestion that the report was prepared in contemplation of the possible initiation of criminal charges against one or more highway department employees does not call for a different result because (1) the mere possibility that there might eventually be some litigation is not sufficient to invoke the work product doctrine and (2) any such litigation would be conducted under the auspices of the duly authorized public prosecutorial authorities rather than by the Town's privately retained civil attorneys.
5 The defendants claim that they relied on publications put out by the New Hampshire Municipal Association which indicated that even after the 1991 amendments, minutes of nonpublic sessions were required only if a decision was made during the session. The plaintiffs counter by pointing to (1) a June 30, 1993 memorandum written by Selectman Herman to the Weare Planning Board, in which Herman discusses the requirement that minutes of nonpublic sessions of the board be available to the public within 72 hours, (2) minutes of board of selectmen meetings on August 24, 1992 and July 12 and 15, 1993, in which there are references to keeping minutes at nonpublic sessions, and (3) a memorandum from the Department of Revenue Administration, which was received by the board of selectmen on October 17, 1991 and which specifically discusses the need to keep minutes of nonpublic sessions.
6 At the same time, I find no support for plaintiffs' claim that the defendants' purpose in instituting the procedure whereby record/information requests must be submitted in writing on a printed form was to facilitate discrimination against requests submitted by certain "disfavored" individuals or groups. It is true that the evidence adduced at the hearing showed that this procedure was implemented at the suggestion of town counsel as a way of insuring that there would be a record of the information that had been requested by and provided to certain individuals who were involved in litigation against the Town. However, while this may have been the narrow purpose of town counsel in suggesting utilization of the written request procedure, once the procedure was implemented it was applied across the board to all record/information requests whether or not the requestor was involved in litigation with the Town. Moreover, regardless of counsel's intentions in suggesting the procedure, utilization of the written request form seems an entirely appropriate mechanism for avoiding miscommunication between members of the public and the Town over precisely what information is desired and for assuring accountability in responding to requests for public information.