THE STATE OF NEW HAMPSHIRE
SUPERIOR COURT
HILLSBOROUGH, SS. 216-2015-CV-00354
NORTHERN DISTRICT
DENNIS ORSI, ELIZABETH BEHRSING,
LISA BOURBEAU, JAMES GANN
AND PRESCOTT TOLMAN
v.
TOWN OF FRANCESTOWN
AND
ABIGAIL ARNOLD, CHAIR, BOARD OF SELECTMEN
ORDER
The plaintiffs, Dennis Orsi, Elizabeth Behrsing, Lisa Bourbeau, James Gaan, and Prescott Tolman, have brought a Right-to-Know action against the Town of Francestown ("the Town") and Abigail Arnold, Chair of the Francestown Board of Selectmen. Plaintiffs allege violations of RSA 91-A, the Right-to-Know Law, and Town policy, on the part of defendants. An evidentiary hearing was held on August 10, 2015, at which Michael Branley, the former Francestown Town Administrator, testified.
[2] The Court has not considered evidence or materials that were not duly admitted at the hearing.1 The Court would note that in their Trial Memorandum and Requests for Findings of Fact and Rulings of Law, plaintiffs appear to rely on certain facts and evidence that were not presented at trial. The Court may only consider evidence and testimony that was duly presented, and allowed, at the hearing. "It is axiomatic that a trial court cannot go outside of the evidentiary record except as to matters judicially noticed." In the Matter of Rokowski and Rokowski, 168 N.H. 57, 121 A.3d 284, 287 (Slip Opinion July 23, 2015 at 4) (quotations, brackets and citations omitted).
The Court has reviewed the parties' proposed findings of fact and rulings of law. In light of this narrative order, the Court grants or denies those requests consistent with the following. See Clinical Lab Prods., Inc. v. Martina, 121 N.H. 989, 991 (1981); R.J. Berke & Co. v. J.P. Griffin, Inc., 116 N.H. 760, 767 (1976). Any of the requests for findings and rulings not granted herein either expressly or by necessary implication are denied or determined to be unnecessary in light of the Court's decision.
After consideration of the parties' arguments, pleadings, and the applicable law, the Court finds and rules as follows.
Analysis
The purpose of RSA 91-A, New Hampshire's Right-to-Know Law, is to "ensure both the greatest possible public access to the actions, discussions, and [3] records of public bodies, and their accountability to the people." RSA 91-A:1. The Right-to-Know Law provides an array of rights to this State's citizens, including the right to have one's town hold open meetings, the right to have those meetings be properly noticed, the right to access a variety of governmental records and minutes, and the right to challenge violations of these provisions in judicial proceedings.
A Right-to-Know Law proceeding is generously interpreted to address matters that come within the ambit of RSA 91-A. Accordingly, the Court should "broadly construe provisions favoring disclosure and interpret the exemptions restrictively." CaremarkPCS Health, LLC v. N.H. Dep't Admin. Servs., 167 N.H. 583, 587, 116 A.3d 1054, 1057 (2015) (Apr. 30, 2015) (slip op. at 4) (quotation omitted). "The party seeking nondisclosure has the burden of proof." Id. (quotation omitted).
It also bears noting, however, that a Right-to-Know proceeding does not constitute an omnibus civil proceeding concerning the airing of grievances that a party may have with a public body. Further, "[t]he Right-to-Know Law does not . . . guarantee the public an unfettered right of access to all governmental workings, as evidenced by certain legislatively created exceptions and exemptions." Goode v. New Hampshire Office of Legislative Budget Assistant, 148 N.H. 551, 553 (2002). See RSA 91-A:1.
With the above-noted principles in mind, the Court considers the following Right-to-Know concerns raised by the plaintiffs.
[4] MRI Contract
The plaintiffs submit that the Town violated RSA 91-A and Town policy when it entered into a contract with Municipal Resources, Inc. for services related to the Town's police department, including the reviewing the department and the mentoring the police chief. (Pl.'s Ex. 6.) The plaintiffs seek invalidation of the contract, the disclosure of nonpublic minutes related to MRI, and other relief.
1. Town Policy
The plaintiffs submit that Town actions related to the MRI contract violated the Board of Selectmen Guidelines and Procedures ("the Guidelines"). Specifically, they contend that the Town violated the Guidelines when it agreed to sign the contract by simple consensus process rather than by majority vote, and that it also violated the Guidelines when Ms. Arnold was said to have privately communicated with MRI regarding the contract.
When town guidelines "require a broader public access to official meetings and records" than RSA 91-A, those guidelines supersede RSA 91-A. RSA 91-A:2, II. The provisions cited by the plaintiffs pertain to the Board's decision making procedures and to when a Board member may act on the Board's behalf. (Pl.'s Ex. 1, at 1, 2, 5.) These provisions do not appear to require broader public access to official meetings or records than RSA 91-A, and are not so enforceable. See RSA 91-A:2, II; Clay v. Dover, New Hampshire Sch. Bd. & Sch. Dist., Strafford County Superior Ct., No. 219-2013-CV-139 (July 3, 2013) (Order, Tucker, J.), at 12.
[5] 2. Procedure for Entering Nonpublic Sessions
The plaintiffs assert that the process by which the Board had entered into a nonpublic session on October 13, 2014 had violated RSA 91-A. The Board held a public meeting that day at which it entered into two nonpublic sessions, one pursuant to RSA 91-A:3, II(d) and one pursuant to RSA 91-A:3, II(a). (Def.'s Ex. A, B.) The meeting agenda had listed both nonpublic sessions. (Pl.'s Ex. 3.) The public meeting minutes indicate that a motion was made and seconded to enter the first nonpublic session and passed by roll call vote. (Def.'s Ex. A, at 3.) The Board discussed a real estate matter at the first nonpublic session.
The public meeting minutes do not indicate that the Board had voted to enter the second nonpublic session. (Id.) The minutes from the second nonpublic session, however, indicate that a motion had been made, seconded and voted upon to enter the session pursuant to RSA 91-A:3, II(a). (Pl.'s Ex. 5.) Mr. Branley testified to the same, explaining that the motions and vote were not recorded in the public minutes due to a scrivener's error. He testified that he had been taking minutes and managing meeting operations during the meeting. The Board entered the second nonpublic session and discussed a personnel matter regarding the chief of police. (Pl.'s Ex. 5.) The Board also discussed the MRI contract during this session. (Id.)
The plaintiffs argue that the Board violated RSA 91-A by failing to vote to enter the second nonpublic session. "No public body may enter nonpublic session, except pursuant to a motion properly made and seconded." RSA 91-A:3, I(a). "Any motion to enter nonpublic session shall state on its face the [6] specific exemption . . . which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call. . . ." RSA 91-A:3, I(b).
The Court finds credible Mr. Branley's testimony that the Board had properly voted to enter the second nonpublic session and that the failure to record the vote in the public minutes had been an unintentional omission. This testimony is supported by the fact that the second nonpublic session had been listed on the agenda and that the vote had been recorded in the nonpublic minutes. Therefore, the Town is found to have complied with the RSA 91-A:3 requirements for motions and voting before entering nonpublic session.
Prior to entering into a nonpublic session, a public body must move to do so in a fashion that meets certain specific criteria. RSA 91-A:3 provides:
I. (a) Public bodies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II. No session at which evidence, information, or testimony in any form is received shall be closed to the public, except as provided in paragraph II. No public body may enter nonpublic session, except pursuant to a motion properly made and seconded. (b) Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present. (c) All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion.
The Board of Selectmen is required to comport with the provisions of RSA 91-A:3 regarding memorialization of its motion for entry into a non-public session. To the extent that such motions and votes may not have been memorialized, under the facts as presented these matters, the scrivener's error can be [7] addressed by having the Town supplement its minutes to include the motions and votes that were made to go into non-public session.
The plaintiffs also raise concerns about the procedure for entering a nonpublic session on March 30, 2015. However, the Court credits Mr. Branley's testimony that the second nonpublic session had been announced to the public and that session had been moved and voted for. Further, the public minutes from that date reflect that the Board properly voted to enter two nonpublic sessions. (Def.'s Ex. G.) Therefore, the Court finds no violation relating to the March 30, 2015 nonpublic sessions.
3. Topics Discussed During Nonpublic Session
The plaintiffs submit that discussing the MRI contract during nonpublic session violated RSA 91-A. A public body may enter nonpublic session to consider matters enumerated in RSA 91-A:3, II. Reasonably, other non-enumerated matters may be so integral to an enumerated nonpublic matter that they may also be discussed in nonpublic session. The Board discussed MRI at several nonpublic sessions entered into under RSA 91-A:3, II(a). This provision allows the Board to consider "[t]he dismissal, promotion, or compensation of any public employee or the disciplining of such employee" in nonpublic session. RSA 91-A:3, II(a). Based on the Court's in camera review of the relevant nonpublic minutes, the nonpublic discussion about MRI had been appropriately integrated into a larger discussion about the dismissal, promotion, compensation, or discipline of a public employee, and so sufficiently complied with RSA 91-A:3, II.
[8] The plaintiffs seek access to nonpublic minutes in which MRI may have been discussed. Specifically, they seek minutes from August 11, August 19, August 25, October 13, October 20, and October 29, 2014 and March 2, March 4, and March 6, 2015. Plaintiffs did not file a Right-to-Know request for any minutes other than the second nonpublic October 13 minutes before this suit. A redacted version of those minutes was provided to the plaintiffs before this suit was filed.
Nonpublic meeting minutes must be made public unless "divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism. . . ." RSA 91-A:3, III. In all but one instance, the Board voted to seal the requested minutes on the grounds that divulgence of the information would likely adversely affect the reputation of a person other than a Board member.2 After reviewing the nonpublic minutes in camera, the Court concludes that the minutes from October 20, 2014, October 29, 2014, and March 2, 2015 would not adversely affect the reputation of any person. The Town is directed to unseal these minutes. The other requested minutes would adversely affect the reputation of a person other than a member of the Board, so the request to unseal those minutes is denied.
4. Delayed Access to Records
The plaintiffs allege that the Town had violated RSA 91-A:4, IV by delaying the release of the October 13 nonpublic minutes. On March 9, 2015, Guy Tolman made a Right-to-Know request to Mr. Branley for the minutes from the [9] "public" meeting at which the Board decided to sign the MRI contract. By March 12, Mr. Branley responded that public minutes were on the Town website. Mr. Tolman sent an identical request to Mr. Branley on March 12. By March 17, Mr. Branley responded that Mr. Tolman may have been looking for the October 27, 2014 public meeting at which the Board signed the MRI contract.
Around March 17, Mr. Tolman replied that it seemed that the Board had discussed MRI before October 27. Mr. Branley then contacted Town Counsel about releasing the October 13 nonpublic minutes. Town Counsel suggested that Mr. Branley release redacted minutes from that session. On March 24, Mr. Branley told Mr. Tolman that he would speak to the Board about releasing those minutes. Mr. Tolman responded with a Right-to-Know request for those minutes. Mr. Branley and the Board discussed the matter at a March 30 Board meeting. (Def.'s Ex. G, at 2.) The Board agreed that the minutes could be released with the first sentence redacted. (Id.) The minutes were released soon after.
Accepting the plaintiff's contention that the Town released the minutes on April 1, the Court finds the plaintiffs' assertion that it took seventeen days and four Right-to-Know requests to obtain the minutes to be inaccurate. Mr. Tolman's first two requests were for public meeting minutes. It was therefore reasonable for Mr. Branley to understand that Mr. Tolman was looking for the minutes from the October 27 public meeting at which the MRI contract was signed. It was not until Mr. Tolman's third request, around March 17, that Mr. Branley would reasonably have understood that Mr. Tolman was looking for nonpublic minutes. Moreover, Mr. Tolman's fourth request was unnecessary, as Mr. Branley had [10] already indicated that he was in the process of taking the steps necessary to release the minutes. Accordingly, it had required around eleven business days and one request for the nonpublic minutes for the minutes to be released.
The Town complied with RSA 91-A:4, IV in responding to Mr. Tolman's first two requests. RSA 91-A:4, IV provides:
Each public body . . . shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.
Mr. Branley had responded to Mr. Tolman's first two requests in around three business days, directing Mr. Tolman to the seemingly appropriate documents. This sufficiently satisfied the obligation to provide immediately available documents "upon request." RSA 91-A:4, IV.
Town administrators have duties beyond answering Right-to-Know requests. They cannot reasonably be expected to stop what they are doing and provide requested documents at the moment that requests are submitted. See Alexis O, 157 N.H. 781, 785 (Courts should construe statues to "avoid an absurd or unjust result.") As such, the Court finds that Mr. Branley had sufficiently provided the requested documents "upon request" when he responded to the first two Right-to-Know requests within three business days.
[11] The Town also complied with RSA 91-A:4, IV in responding to Mr. Tolman's third and fourth requests. The October 13 minutes could not be immediately released because they had been sealed. Therefore, Mr. Branley had five business days to respond to Mr. Tolman's requests, with which he complied. See RSA 91-A:4, IV. Then, given the need to discuss the matter with the Board at a public meeting and to redact the minutes, releasing the minutes two days after the Board meeting created no more delay than reasonably had been necessary.
Cressy Hill Road
The plaintiffs assert that the Town violated RSA 91-A by failing to produce documents related to the reclassification of part of Cressy Hill Road from Class VI to Class V. Plaintiffs had requested all documents related to Cressy Hill Road. Because of the breadth of this request, Mr. Branley had permitted the plaintiffs to search through the Town office room for those documents. The plaintiffs later requested all documents related to the relevant mapping change of the road from the Conservation Commission. The Commission provided a stack of maps to the plaintiffs and copied hundreds of pages of documents that Mr. Branley invited the plaintiffs to pick up. The plaintiffs apparently never retrieved the documents.
On February 27, 2014, Ms. Arnold emailed Mr. Tolman:
I am not aware of any document that states directly that the first part of Cressey [sic] is Class V. . . . It is the fact that the town has consistently spent money on the bridge and necessarily the road getting to it that makes it, by law, a Class V. . . . I would also be happy to come by, or better, meet at the town offices [12] to go through the files and answer any questions either of you may have.
(Def.'s Ex. S.)
A public body must conduct a search reasonably calculated to uncover all relevant documents in response to a Right-to-Know request. ATV Watch v. New Hampshire Dep't of Transp., 161 N.H. 746, 753 (2011). However, RSA 91-A does not require a public body to compile a record that does not already exist in response to a Right-to-Know request. New Hampshire Civil Liberties Union v. City of Manchester, 149 N.H. 437, 439-40 (2003); Hawkins v. New Hampshire Dep't of Health & Human Servs., 147 N.H. 376, 379 (2001).
The crux of the plaintiffs' argument is that the documents provided by the Town do not say who changed the road's classification or otherwise explain the change. The plaintiffs argue that such a significant change would have been "well documented in a discrete and specific file. . . ." (Pl.'s Requests for Findings of Fact ΒΆ 17.) However, given the statutes affecting road classifications, the Court credits Ms. Arnold's explanation about why the change would not be documented. See RSA 229:5, VIII. Further, based on the volume of records provided to the plaintiffs, and Ms. Arnold's offer to help Mr. Tolman go through Town files, the Court concludes that the Town had adequately searched for the records. ATV Watch, 161 N.H. at 753. The Town did not have an obligation to create a document containing the information and did not violate RSA 91-A by declining to do so. See New Hampshire Civil Liberties Union, 149 N.H. at 439-40; Hawkins, 147 N.H. at 379.
[13] Joint Meetings
The plaintiffs assert that the Town violated had RSA 91-A in the course of joint meetings with certain other towns. On February 26, 2015, the Board of Selectmen attended a meeting of the Tri-Town Landfill Committee, which had included members of the Board of Selectmen from Antrim, Bennington, and Francestown. (Def.'s Ex. M.) The Committee met during a Bennington Board of Selectmen meeting and the Bennington Board had taken minutes. (Id.) The meeting discussed an sand pit excavation shared between the towns. (Id.) The Francestown Board acknowledged that Francestown had been excavating a disproportionately greater amount of material and agreed to pay for excess removal, pursuant to a prior written agreement between Bennington, Francestown, and Antrim. (Def.'s Ex. L; Def.'s Ex. M.)
The Board previously discussed this multi-town meeting at its February 16 meeting. (Def.'s Ex. Q., at 3.) At that meeting, "Mike [Branley] stated that Bennington still wants to schedule a tri-town meeting. February 26th was agreed upon with February 24th as a back-up date." (Id.) The February 23 Board meeting minutes also reflect that the Board discussed an "Email confirming Tri-Town Landfill meeting on Thursday, February 26th at 6:00 p.m. in Bennington." (Def.'s Ex. T, at 2.)
On May 6, 2015, the Board attended another Bennington meeting. (Def.'s Ex. O.) The Bennington Board kept minutes. (Id.) The Boards again discussed sharing town resources. (Id.) The Boards agreed that the Francestown Board would discuss the matter with town residents at an already scheduled May 20 [14] meeting regarding the regionalization of services. (Id.) After the meeting a Francestown resident suggested to the Board that it should have taken minutes. Mr. Branley contacted the New Hampshire Municipal Association and received an equivocal response, so he compiled meeting minutes. (Def.'s Ex. P.) The Board had previously discussed the possibility of a joint meeting regarding regionalization at an April 6 Francestown Board meeting. (Def.'s Ex. H.) Then, at the April 20 Board meeting, the Board proposed May 6 as the date for the a regionalization meeting with Bennington. (Def.'s Ex. I.)
The plaintiffs assert that the Town had violated RSA 91-A by failing to post notice for either joint meeting and by failing to keep minutes for the first joint meeting. "[A] 'meeting' means the convening of a quorum of the membership of a public body . . . for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power." RSA 91-A:2, I.
The Attorney General's Right to Know Memorandum suggests that joint meetings of multiple public bodies count as a meeting of each public body if the matters discussed fall under that public body's jurisdiction. Attorney General's Memorandum on New Hampshire's Right-To-Know Law RSA Chapter 91-A 7 (2015). The Court concurs. A resident interested in the activities of one particular public body might be unaware of notices and minutes of a different public body. Thus, to effectuate the purpose of RSA 91-A:2, I, it is necessary to treat a joint meeting as a meeting of any public body in attendance if the matters discussed fall under that public body's jurisdiction.
[15] A quorum of the Board attended the joint meetings. Moreover, the joint meetings were convened, in part, to discuss matters within the Board's jurisdiction. Therefore, the joint meetings would be considered as meetings of the Francestown Board. See RSA 91-A:2, I; Attorney General's Memorandum, supra at 7.
The notice requirement for public meetings is as follows:
Except in an emergency or when there is a meeting of a legislative committee, a notice of the time and place of each such meeting, including a nonpublic session, shall be posted in 2 appropriate places one of which may be the public body's Internet website . . . or shall be printed in a newspaper of general circulation in the city or town at least 24 hours . . . prior to such meetings.
RSA 91-A:2, II. Although the minutes of prior Board meetings referenced the joint meetings, those minutes did not include the meetings' locations. Therefore, even if a reference in meeting minutes can provide sufficient notice of future meetings, the notice in these minutes would not have sufficiently informed the public of the date, time, and place of the joint meetings. Therefore, the Town did not comply with RSA 91-A:2, II when it did not provide notice of the joint meetings.
"Minutes of all . . . meetings . . . shall be promptly recorded and open to public inspection not more than 5 business days after the meeting." RSA 91-A:2, II. The Attorney General's Memorandum suggests that in joint meetings, all bodies must keep minutes, "which may be the same document, separately adopted as minutes." Attorney General's Memorandum, supra at 7. Although it might appear to be duplicative to require two distinct sets of minutes, it is [16] consistent with the purpose of the law to require each town to adopt minutes and open them to the public. Therefore, the Town contravened RSA 91-A:2, II, when it failed adopt or take minutes for the February 26 joint meeting.
Conclusion
The Court finds for the plaintiffs with respect to their claim that nonpublic minutes from October 20, 2014, October 29, 2014 and March 2, 2015 had not been appropriately sealed under the provisions of RSA 91-A:3, III. The Town is therefore directed to release those minutes. The Court also finds that the Town had not complied with RSA 91-A:2, II when it held joint meetings with other municipalities without providing proper notice or taking minutes. The Town is directed provide notice and keep or adopt minutes of future joint meetings.
The plaintiffs' request for attorney's fees is denied because they have been self-represented. See Emerson v. Town of Stratford, 139 N.H. 629, 632 (1995). Their request for costs is also denied, as the Town's conduct is not found to have been purposeful and this lawsuit is not found to have been necessary to enforce compliance with RSA 91-A. See RSA 91-A:8, I. The plaintiffs apparently did not make a Right-to-Know request prior to bringing suit for the minutes that the Court has ordered released. Therefore this suit cannot be found to have been necessary to enforce the release of those minutes, as the minutes may well have been released in response to a Right-to-Know request.
The Court does not find that this suit is necessary to enforce the Town's RSA 91-A compliance during joint meetings. After its second joint meeting, the [17] Town consulted the New Hampshire Municipal Association and changed its joint meeting practices. This occurred before this lawsuit and the plaintiffs have not presented evidence of violations taking place since then.
The Court concludes that the Town's Right-to-Know Law violations, while not in compliance with the Right-to-Know Law had been relatively minor, infrequent, and unintentional. While a covered governmental agency must strive for full compliance with the Right-to-Know Law, the non-compliance matters as found were not egregious and did not evidence a pattern of noncompliance.
The Court is not persuaded, also, that the non-compliance of the Right-to-Know Law at bar would call for the setting aside of the actions that were taken by the Board of Selectmen. RSA 91-A:8, III. A more appropriate form of relief, would be to have any statutorily required information made available.
Therefore, the foregoing remedies are found to be sufficient. The plaintiffs' request for other relief including the production of further documents, invalidation of the MRI agreement, and remedial training are denied.
SO ORDERED.
1 After the conclusion of the hearing, plaintiffs apparently submitted a large loose-leaf binder of documents to the Court Monitor which binder bears the label "Exhibits Not Entered at Hearing But Will Be Entered at Later Time."
2 The minutes from the first nonpublic October 13, 2014 session were sealed on the grounds that their divulgence would render a proposed action ineffective. These minutes were properly sealed.