Healy v. Town of Warner, Doc. No. 217-2008-E-259 (Merrimack Super. Ct., September 10, 2008) (Conboy, J.)


The State of New Hampshire

Superior Court

Merrimack County Courthouse
163 North Main Street, P.0. Box 2880
Concord, NH 03302-2880
(603) 225-5501

No. 08-E-259

John M. Healy,
Wayne Eigabroadt,
Richard Senor,
Ken Kliendinst,
and Ron Wirth


Town of Warner Board of Selectmen


The petitioners seek relief pursuant to RSA Chapter 91-A, New Hampshire's Right-to-Know law. The petitioners request that the Town of Warner Board of Selectmen ("the Board") disclose certain information about each individual who applied for one of two positions in the Town of Warner's Department of Public Works (DPW). The Court held a hearing on the matter on August 19, 2008. Upon consideration of the parties written and oral arguments, the Court finds and rules as follows.


For purposes of this order, the Court finds the following relevant facts. On April 11, 2006, the Board held a non-public session to meet with Mathew Waite, a candidate [2] for a truck driver position within the DPW. During the meeting, Mr. Wayne Eigabroadt, then a selectman, and one of the petitioners herein, expressed concern about Mr. Waite's driving record and recommended that the Board reconsider former candidates for the position. The Board voted 2-1 in favor of offering Mr. Waite the position for a probationary period of 12 months. This offer was contingent upon a successful drug test. At the conclusion of this meeting, the Board did not seal or otherwise restrict the minutes of this non-pubIic session. Subsequently, the minutes became available to the public within 72 hours of the meeting.

On April 4, 2007, the Board held a non-public session to meet with Mr. Brad Kelly regarding his application for the position of foreman at the Highway Department. Present at the meeting were Selectmen David E. Hartman, Richard A. Cook, and Wayne Eigabroadt. Also present were Laura Buono, Town Administrator, Allan N. Brown and Bradley Kelly. By affidavit submitted in this proceeding, Mr. Eigabroadt states that during the subsequent meeting to discuss the applicants for the position, he stated that he felt that there was a candidate who was stronger than all the others, including Mr. Kelly. According to the affidavit, when Eigabroadt questioned the Board's logic in considering a less qualified applicant, Selectmen Hartman and Cook told him that the candidate in question was too old. During this non-public session the Board, including Mr. Eigabroadt, unanimously agreed to offer Mr. Kelly the foreman position. Again, the Board did not vote to seal the minutes of the non-public sessions. Subsequently, the minutes became available to the public within 72 hours of the meeting.

On June 19, 2008, Petitioner John Healy ("Healy") sent a Right-to-Know ("RTK") request to the Board via email. This request called for the Board to provide [3] Healy with the following information regarding the hiring of the two new Highway Department employees, Mr. Waite and Mr. Kelly:

See Respt's Memo. in Support of Denying Petition, Attached Email. Healy indicated that he specifically was searching for: "the name and address of the candidate who was disqualified, by Mr,[sic] Cook's statement, due to his age. If the Town has a personnel policy regarding hiring or age please include that." See Pet. For Access, Attach. 1.

On June 25, 2008, Laura Buono, the Town Administrator ("Buono") responded to Healy's request via email. Buono's email indicated that any unsealed meeting minutes with regard to the hiring of Mr. Kelly and Mr. Waite were available in the Selectman's Office. Buono indicated that additional information about the hiring process would not be disclosed in accordance with RSA 91-A:3 II(b). Buono also stated that the relevant job description may be found in the Board's office. Finally, Buono acknowledged that the Town of Warner is an equal opportunity employer and denied any age disqualification.

On July 1, 2008, Healy sent a letter to the Board which contained a list of requests almost identical to the requests made in his June 19, 2008 email. However, he also requested tape recordings of the meetings in question.

On July 8, 2008, Buono replied to Healy indicating that tape recordings of the meetings were not available. Buono informed Healy that tape recordings are kept for six months and are then erased so that they may be re-used. According to Buono, because the [4] tapes Healy desired were made more than a year before his request, they had already been erased.

Standard of Review

The intent of RSA 91-A is to "ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and [to ensure] their accountability to the people." RSA 91-A:1 (2001). Thus, "[e]very citizen ... has the right to inspect all public records, ... except as otherwise prohibited by statute or RSA 91-A:5." RSA 91-A:4, I (2001 & Supp. 2006). Records that are exempt from the requirements of RSA 91-A:4 include, "records pertaining to internal personnel practices; confidential, commercial, or financial information; ... and other files whose disclosure would constitute an invasion of privacy." RSA 91-A:5, IV (2001 & Supp. 2006).


The petitioners have filed a Right-to-Know request seeking the disclosure of certain documents related to individual candidates under consideration by the Board for the two positions with the DPW, including the position of foreman. The petitioners assert that they are entitled to access the following information about each individual who applied for either position: 1) name; 2) address; 3) listed telephone number; and 4) resume. Specifically, the petitioners seek the identity of an applicant who may have been disqualified for the position due to age. The petitioners also request that the town disclose any minutes or recordings made during the public and non-public sessions during which the Board discussed candidates for the two positions in the Dept. of Public Works. Finally, the petitioners request that the Board provide written job descriptions for the two [5] positions. The Board objects, asserting that any documents not already available are exempt from disclosure pursuant to 91-A:5(IV).

In seeking disclosure of the requested documents, the petitioners assert that the disclosure will not invade the applicants' privacy because the applicants essentially waived any privacy interest when they applied for public employment. The petitioners further contend that the information requested is limited to information that individuals often make public. The petitioners note that individuals often provide their names and addresses for publication in the telephone book and for printing on personal checks. Therefore, the petitioners argue that this information is less protected than information such as Social Security numbers, which individuals tend to keep private. Petitioner Healy indicated that it is common for resumes to be circulated on various internet websites. In the alternative, the petitioners suggest that even if disclosure of the documents will violate a privacy interest, this violation is outweighed by the public's right to know the identity and qualifications of the candidates. The petitioners argue that disclosure of this information is necessary in order for the public to be informed of the Board's actions. The petitioners suggest that at a minimum the Court perform an in camera review of the documents to determine if the Board engaged in age discrimination.

The Board argues that no age discrimination occurred in the subject hiring decisions. The Board maintains that it has provided or made available to petitioners all of the minutes of the public and non-public meetings in question as well as the job descriptions. The Board has also advised petitioners that the recordings they requested no longer exist. According to the Board, therefore, the only remaining issue is the disclosure of information about each job applicant.

[6] The Board argues that the disclosure of the requested documents is an invasion of privacy and is therefore not required under RSA 91-A:5, IV. The Board states that the applicants have a privacy interest not only in their names, addresses and resumes, but also in the fact that they submitted employment applications. The Board argues that petitioners are trying to create an aggrieved applicant, a derivative use that should be given little weight. Further, the Board asserts that the governmental interest in nondisclosure outweighs any public interest in disclosure. The Board maintains that disclosure of personal information will discourage qualified candidates from applying for municipal positions because they may want such information to remain private.

"When [an] exemption is claimed on privacy grounds, '[the Court will] examine the nature of the requested document or material and its relationship to the basic purpose of the Right-to-Know Law.'" Union Leader Corp. v. N.H. Hous. Fin. Auth., 142 N.H. 540, 544 (1997) (citation omitted). "The party resisting disclosure 'bears a heavy burden to shift the balance toward nondisclosure.'" Id. "The obvious public purpose that may be served by disclosure of the disputed exhibits is to increase public knowledge about how [the Board] operates." Id. "Official information that sheds light on an agency's performance of its statutory duties falls squarely within the statutory purpose of the Right-to-Know Law." Id. "That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various government files but that reveals little or nothing about an agency's own conduct." Id. Therefore, the Court's review will "focus on whether [the Board] ha[s] shown that the information sought would not inform the public about [the Board's] activities with respect to [hiring], or that a valid privacy interest, on balance, outweighs the public interest in disclosure." Id.

[7] A. Private Information of Each Applicant

The Board asserts that the private information petitioners request for each applicant is exempt from disclosure under the Right-to-Know Law because it would invade the privacy of the applicants. The Right-to-Know Law exempts: "Records pertaining to internal personnel practices; confidential, commercial, or financial information; ...and personnel. . .and other files whose disclosure would constitute invasion of privacy." RSA 91-A:5, IV.

The Court engages in a "three-step analysis when considering whether disclosure of public records constitutes an invasion of privacy under RSA 91-A:5, IV." Lamy v. N.H. Pub. Utils. Comm'n, 152 N.H. 106, 109 (2005) (internal citations omitted). Under step one, the Court evaluates "whether there is a privacy interest at stake that would be invaded by the disclosure." Id. Step two requires the Court to determine the public's interest in the disclosure. Id. In step three, the Court must balance the "public interest in disclosure against the government interest in nondisclosure and the individual's privacy interest in nondisclosure." Id.

The Court first addresses the privacy interest that each applicant has in his: 1) name; 2) address; 3) listed telephone number; and 4) resume. "Disclosing a person's name and address implicates that person's privacy rights because [the disclosure] serves as a conduit into the sanctuary of the home." Id. at 110 (internal citations omitted). The Court recognizes, as do petitioners, that information such as names, homes and addresses are often publicly available. The Court also recognizes that there is only a "modest privacy interest assigned to an individual's bare name and home address." Id. at 110 (internal citations omitted). However, the Court agrees that "a discernable interest exists [8] in the ability to retreat to the seclusion of one's home and to avoid enforced disclosure of one's [name and] address." Id (internal citations omitted). "In our society, individuals generally have a large measure of control over the disclosure of their own identities and whereabouts." Id. (internal citations omitted). "This is evidenced by unlisted telephone numbers, by which subscribers may avoid publication of an address in the public directory, and postal boxes, which permit the receipt of mail without disclosing the location of one's residence." Id.

Having determined that the applicants have a privacy interest in their names, addresses and telephone numbers, the Court next considers whether applicants have a similar interest in their resumes. Most often a resume will contain an applicant's name, address, and telephone number, in addition to information regarding education and work history. Information regarding education and work history is not often publicly available. Therefore, the Court finds that an applicant's privacy interest in his resume is even greater than that in his name, address, and published phone number.

Given that the applicants have a privacy interest in their: 1) names; 2) addresses; 3) listed telephone numbers; and 4) resumes, the Court next considers the public interest in disclosing this information. The purpose of the Right-to-Know law is "to provide the utmost information to the public about what its government is up to." Id. "If disclosing the information does not serve this purpose, disclosure will not be warranted even though the public may nonetheless prefer, albeit for other reasons, that the information be released." Id. at 111 (internal quotations and citations omitted).

The Court finds that access to each applicant's: 1) name; 2) address; 3) listed telephone number; and 4) resume is not likely to provide petitioners with information [9] about what the Board "is up to". The information requested will not allow petitioners to determine why each unsuccessful candidate was eliminated or why the successful candidate was hired. If disclosed, the information may allow petitioners to speculate upon the Board's hiring decisions but it will not provide any definitive answers. Although the public has a right to know if the Board engaged in age discrimination, the Court is not persuaded that disclosure of the requested information about each applicant will allow petitioners to determine whether discrimination occurred.

Finally, the Court balances the "public interest in disclosure against the government interest in nondisclosure and the individual's privacy interest in nondisclosure." Lamy, 152 N.H. at 109. Here, it is unlikely that disclosure of the applicant's personal information would provide petitioners with concrete insight into the Board's actions. In contrast, the applicants have a significant interest in having their names, addresses, telephone and especially their resumes remain private. Job applicants can reasonably expect that the information they provide to potential employers will not be shared with the public. Therefore, the Court finds that the public's interest in disclosure is outweighed by the privacy interest of the applicants. Accordingly, the names, addresses, telephone numbers, and resumes are exempt from disclosure.

B. Minutes of Board Meetings

The petitioners seek disclosure of minutes from all public and non-public sessions during which the Board discussed the two DPW positions. The Board points out that although the Board meetings in question were non-public, the Board did not vote to seal the minutes. In accordance with RSA 91-A:3 (III), the Board disclosed the minutes to the public within 72 hours of each meeting. The Board asserts that the minutes were [10] available to the public during normal business hours at the Selectmen's Office. The Court finds that the Board fulfilled its statutory duty by making the minutes available to petitioners within 72 hours of each meeting.

C. Recordings of Town Meetings

The petitioners also seek disclosure of any tape recordings made during the subject meetings of the Board. The Board maintains that these tape recordings no longer exist. The Board has a regular practice of keeping the tapes for six months before erasing them so that the tapes may be reused. The Board's regular practice of erasing tape recordings of meetings used for the preparation of minutes does not violate RSA 91-A:4. See Brent v. Paquette, 132 N.H. 415 (1989) (holding that school's practice of destroying tapes and notes used to prepare minutes of meetings did not violate RSA 91-A:4 when the tapes were destroyed only after the minutes were approved). The Court finds that the Board fulfilled its statutory duty regarding this issue.

D. Job Descriptions

The petitioners requested that the Board provide them with copies of the job descriptions for the relevant DPW positions. The Board asserts that the relevant job descriptions were available to petitioners at all times in the Selectmen's office. RSA 91-A:4 does not require towns to provide copies of public records to citizens; it requires only that the records be available for review and reproduction. See, Gallagher v. Town of Windham, 121 N.H. 156 (1981). Petitioner Healy was advised that the job descriptions he sought were available for review during normal business hours at the Selectmen's office. The Court finds that the Board fulfilled its statutory duty regarding this issue.

[11] E. In Camera Review

The petitioners additionally seek an in camera review of the requested information. If the Court is uncertain whether the disclosure of information would violate individual privacy rights, an in camera review would be appropriate. However, that is not the case here. Under the circumstances of this case, the Court is able to conclude that disclosure of the subject information would constitute invasion of privacy. Thus, in camera review is not necessary.

F. Attorney's Fees and Costs

Finally, the petitioners request relief in the form of attorney's fees. The Court notes that Petitioners are not represented by counsel. In any event, under RSA 91-A, a petitioner is entitled to attorney's fees only if the respondent refused to provide its public records in response to a reasonable request. RSA 91-A:8, I (2001). As the Court finds the Board did not violate RSA 91-A, petitioners are not entitled to an award of fees or costs.

For the foregoing reasons, the petitioners' request for records is DENIED, and petitioners' request for attorney's fees and costs is also DENIED.

So ordered.

Date:    Sept. 10, 2008       /s/   


Presiding Justice