Union Leader v. N.H. Dep't of Safety, Doc. No. 216-2010-E-015 (Hillsborough Super. Ct. North, May 4, 2010) (Sullivan, J.)





Union Leader Corp.


State of New Hampshire Department of Safety

No. 10-E-0015


The Union Leader Corp., the petitioner, files this Petition seeking access to public records held by the respondent, the New Hampshire Department of Safety ("the Department"), pursuant to RSA 91-A (Supp. 2009), the Right to Know Law. The Court heard argument on this matter on April 29, 2010. For the reasons stated herein, the petitioner's Petition is GRANTED in part and DENIED in part.

On December 7, 2009, Clynton Namuo, on behalf of the petitioner, submitted a written request for information to the Department. (Pet.'s Pet., Ex. 1.) Specifically, the petitioner requested "to see any and all investigative files related to a crash on May 25, 2009 on the Spaulding Turnpike involving State Trooper Elizabeth Keyes, including but not limited to, the accident report and any other pertinent documents." (Id.)

The Department responded by letter dated December 15, 2009, denying the petitioner access to any and all records. (Pet.'s Pet., Ex. 2.) In its letter, the Department noted that RSA 260:14, II (Supp. 2009), exempts motor vehicle records. Additionally, the Department noted that any investigative file generated as a result of the [2] accident would be considered a personnel record and therefore exempt pursuant to RSA 91-A:5, IV." (Id.)

The petitioner maintains that the Department "has no reasonable valid basis for denying access to the information requested." (Pet.'s Pet. ΒΆ 7.) In particular, the petitioner avers RSA 260:14, II(a) is inapplicable and that the Department does not fall into any of the categories of exemption under RSA 91-A, so the Court should order the Department to disclose the information requested.

When interpreting statutes, the Court will look to the language of the statute as a whole and, if possible, construe that language according to its plain and ordinary meaning. State v. Duran, 158 N.H. 146, 155 (2008). RSA 260:14, II(a) states:

Proper motor vehicle records shall be kept by the department at its office. Notwithstanding RSA 91-A or any other provision of law to the contrary, except as otherwise provided in this section, such records shall not be public records or open to the inspection of any person.

Looking at this statute as a whole and according this section its plain and ordinary meaning, the Court concludes that motor vehicle records are not public records subject to the Right to Know Law. Therefore, if the information that the petitioner seeks falls into the definition of a motor vehicle record, it is not subject to disclosure.

During the hearing, the parties identified the information the petitioner sought access to as: 1- the accident report; 2- the technical accident reconstruction report ("TAR report"); 3- any internal personnel memoranda; and 4- any repair estimates appended to the internal personnel memoranda. The Court must determine whether any or all of these four items are motor vehicle records, thus making RSA 260:14, II, applicable.

[3] RSA 260:14, I(a) defines motor vehicle records as all applications, reports required by law, registrations, histories, certificates and licenses issued or revoked by the department and the information, including personal information, contained in them" (emphasis added). The Department avers that the accident report and the TAR report are "reports required by law," and therefore are excluded from disclosure requirements.

RSA 264:26 (Supp. 2009) mandates that the responding officer complete a report for every accident involving death or damage to property. See also RSA 265:25, I (Supp. 2009) (requiring reports by operators). The accident report created to document this accident, then, is a report required by law. The petitioner conceded at the April 29, 2010 hearing that the police accident report was a "report required by law" under RSA 260:14, 1(a) and that the report does not fall into any of the exception categories in RSA 260:14. Reviewing the statute and the police report, the Court finds that the accident report is not a public record subject to disclosure under RSA 91-A. Accordingly, the petitioner's Petition for access to the police report is DENIED.

Similarly, the Court finds the TAR report is also not a public record subject to disclosure under RSA 91-A. The Court finds that the TAR report is developed in complicated cases or serious accidents when a more detailed police investigation is required than is required in less complicated or less serious accidents, such as a fender bender. See record of hearing for additional facts or findings on this issue. It is simply an extension of the accident report, which is required by law. Therefore, the Department need not disclose this report. Accordingly, the petitioner's Petition for access to the TAR report is DENIED.

[4] During the hearing, the petitioner conceded that under current decisional law any internal personnel memoranda generated as a result of this accident are not subject to disclosure. See RSA 91-A:5, IV (exempting internal personnel practices from discoverable material under RSA 91-A). See also Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993). The Court agrees. Accordingly, the petitioner's Petition to compel disclosure in this regard is DENIED.

The petitioner also contends that the two repair estimates appended to the internal personnel memoranda are discoverable. See Def.'s Ex. C and Ex. D. The petitioner avers that appending the estimates to the internal memoranda, which are non-discoverable, does not make the estimates exempt under RSA 91-A:5, IV. The Court agrees. Accordingly, the petitioner's Petition seeking disclosure of the repair estimates is GRANTED.

Next, during the hearing, the petitioner argued that it preserved the argument that RSA 260:14, as applied to the facts of this case, is unconstitutional. The petitioner first raised this argument at the hearing without citing a precedent or specific cases to support its position. In addition, the petitioner requested leave to file a memorandum of law regarding the constitutionality of RSA 260:14. The Court denied this request. This case has been pending for some time and was continued once. The respondent received no notice of a constitutional challenge to the statute prior to the hearing. The Court finds that the petitioner has failed to timely raise this argument. Accordingly, the Court finds that the argument regarding the constitutionality of RSA 260:14 has not been adequately raised or preserved.

[5] Finally, the petitioner requests reasonable attorney's fees and costs pursuant to RSA 91-A:8 (Supp. 2009). RSA 91-A:8, I, provides in pertinent part:

If any public body or agency...refuses to provide a governmental record...such public body, [or] public agency...shall be liable for reasonable attorneys fees and costs incurred ln a lawsuit under this chapter.... Fees shall not be awarded unless the court finds that the public body [or] public agency...knew or should have known that the conduct engaged in was a violation of this chapter....

Fees are not warranted in this instance. The Department did not knowingly engage in conduct that was in violation of RSA 91-A and was successful in opposing the petitioner's Petition in all but one small area. Accordingly, the petitioner's request for fees and costs is DENIED.

In sum, the Court finds that the following items are non-discoverable under RSA 260:14: the accident report and the TAR report. Additionally, the internal personnel memoranda are non-discoverable under RSA 91-A:5, IV. Accordingly, with respect to these three pieces of information, the petitioner's Petition is DENIED. However, the Court finds that the repair estimates appended to the internal memoranda are discoverable. Accordingly, the petitioner's Petition, with respect to this item, is GRANTED. Lastly, the petitioner's request for fees and costs is DENIED.


   5/4/10       /s/   

Date David B. Sullivan

Presiding Justice