Gericke v. Town of Weare, Doc. No. 216-2010-E-196 (Hillsborough Super. Ct. North, July 21, 2010) (Tucker, J.)

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No. 10-E-196

Carla Gericke


Town of Weare,
Catherine Baumann, and
Naomi Bolton


Carla Gericke petitions for an order requiring the respondents to provide certain records under the state Right to Know law (RSA 91-A). While her request to the respondents encompassed a number of items, her petition demands disclosure only of (1) certain audio and video recordings made on dashboard recording devices in Weare police cruisers, and (2) maintenance and usage records relating to the dashboard recording devices.

After rejecting the request based on an exception that protects police investigative files, the respondents now say no such records exist. For the reasons that follow, the petition is dismissed and claims by the petitioner and the Town for attorney's fees are denied.

[2] Background

The pleadings reflect that Weare police charged Carla Gericke with a crime. During pre-trial discovery, she sought the two categories of records that are the subject of the present petition. The State did not provide them and nol prossed the criminal complaint on May 25, 2010.

Her access to the records through the criminal case thus thwarted, Gericke sought them under RSA 91-A. She requested a number of records in a May 26, 2010 letter to the Town of Weare. Most of the items sought pertained to the aforementioned audio and video recordings and the maintenance and usage records. However, her request also included police reports and information on other matters.

On May 28, 2010, the town administrator, respondent Naomi Bolton, denied the request on the ground that the right to know law "does not cover cases that are in the process of prosecution." She advised Gericke that she sent her letter to the police prosecutor, Attorney Catherine Baumann, for consideration under "the discovery rules." Three days later, counsel for Ms. Gericke responded to Ms. Bolton that RSA 91-A did not exempt the records from disdosure and noted the criminal charge had been dropped.

Attorney Baumann responded to Gericke's counsel on June 8. She denied the 91-A request on the ground that the criminal matter involving Gericke [3] remained under on-going investigation" and because a 91-A disclosure would compromise the right of Ms. Gericke "as well as any co-defendants . . . to a fair trial." Gericke filed the present petition for iniunctive relief on June 29, 2010.


A. Production of the Records

Shortly before the hearing -- petitioner's counsel says it was 19 hours before the parties appeared in court -- counsel for the Town notified the petitioner that the Town does not keep maintenance and usage records for the dashboard devices. She also disclosed that the devices did not record during the period in question and that as a result, the Town does not have the requested video or audio records.1 The respondents attribute the late explanation to the fact that Attorney Baumann did not become the police prosecutor until early May 2010, and that she understood Gericke's counsel knew from her predecessor that the Town lacked the recordings and the records relating to dashboard units. According to the respondents, Attorney Baumann's denial of the 91-A request pertained to the other information Gericke requested under RSA 91-A, although the Town maintains her general explanation that the records were exempt from [4] disclosure would have applied to the recordings and equipment records if they did exist. See Murray v. N.H. Division of 5tate Police, 154 N.H. 579, 582 (2006).

In light of the respondents' explanation that it has no records to produce, the court does not reach the question of whether the records are exempt from disclosure. It also follows that if there are no records, the court must deny Ms. Gericke's request that the court order the respondents to provide them.

B. Attorney's Fees and Costs

Ms. Gericke claims attorney's fees are due from the Town on the ground that the lawsuit was necessary to make the information available. She also says she is entitled to fees from respondents Bolton and Baumann individually, because they acted in bad faith. See RSA 91-A:8, I (2009 supp.). The Town requests attorney's fees from Gericke, claiming her lawsuit is frivolous as it relates to the request for attorney's fees from the individual respondents. See RSA 91-A:8, I-a (2009 supp.).

1. Gericke's request for attorney's fees and costs from the Town and the individual respondents is denied. Under RSA 91-A:8, I, the court must find the "lawsuit was necessary in order to make the information available" in order to award fees and costs. Although her lawsuit revealed a new reason the records were not produced, it did not serve to make the records available.

[5] The evidence does not support a finding that attorney's fees are due from respondents Bolton or Baumann on the ground that they acted in bad faith. It is not clear what Ms. Bolton knew specifically about the status of the dashboard recordings and related records, but her response cited a legitimate exception to the disclosure requirement of RSA 91-A and she referred the matter to Attorney Baumann. According to offers of proof by respondents' counsel, Attorney Baumann had the understanding, albeit erroneous, that Gericke's counsel knew from her predecessor that the recordings and recording device records did not exist. The 91-A request sought not only the information identified by the petition, but included other records to which the exemption might fairly apply. Under the circumstances known to Attorney Baumann, it was not unreasonable for her to respond to the 91-A demand as she did.

2. The court does not accept the Town's claim that Gericke's lawsuit is frivolous with respect to the allegation of bad faith. Ms. Bolton denied the 91-A request on the basis of the law enforcement records exception. Her reply to Gericke's counsel was that the matter would be referred to Attorney Baumann, not necessarily to decide the 91-A issue, but to consider whether to provide the records as part of discovery in the criminal matter.

When Attorney Baumann responded several days later, she too denied the 91-A request on the basis of the police records exception. In fact, the Town did [6] not have the recordings and maintenance records Gericke sought, but its representatives did not reject the request on that basis or otherwise inform Gericke the records did not exist. Having been advised by the individual respondents that the documents would not be disclosed because of an exemption for police investigative files, Gericke could believe reasonably that the Town had the records she sought and would not disclose them due to the cited exemption. Gericke then expended funds on a lawsuit.

It is not unreasonable to conclude that a public official acts in bad faith if she rejects a 91-A request based on an exemption for disclosure when she knows for a fact that the records sought do not exist, or if she fails to make an inquiry into whether the agency possesses the records. A usual factor in whether a person elects to fund a lawsuit is whether the suit will yield results. Whether a person chooses to litigate the denial of a request for records under RSA 91-A would likely be influenced by whether the governmental body has the records to produce if the lawsuit is successful. In their generic responses denying Ms. Gericke access to the records based on an exemption, the individual respondents implied there were such records. This resulted in Gericke filing what turned out to be a needless challenge to the applicability of the exemption they claimed. The court finds from the circumstances explained earlier that the individual [7] respondents did not act in bad faith. But based on the facts known to Gericke, her claim that they did is not frivolous.

At today's hearing, the petitioner filed an Addendum to her petition for injunctive relief. Since the addendum requests remedies beyond those presented in the petition, the court deferred considering it until the respondents had an opportunity to file an answer.

The relief sought in the addendum appears to require action only by the Town of Weare, so the individual respondents need not address it. The Town shall file its response within twenty (20) days of the date on the clerk of court's notice of this decision.


For the reasons given, the petition for injunctive relief is dismissed. The petitioner's requests for attorney's fees and costs are denied. The Town's request for attorney's fees is denied.


Date: July 21, 2010    /s/   

Brian T. Tucker

Presiding Justice

1 The respondents filed memoranda today that reflect uncertainty over whether the records do or do not exist. See Memorandum of Town of Weare and Naomi Bolton, at 1; Memorandum of Catherine Baumann, at 3. At the hearing, counsel for the respondents made offers of proof that there are no such records and the court accepts their representations.