Stow v. Marsh, Doc. No. 217-2009-E-204 (Merrimack Super. Ct., June 26, 2009) (Tucker, J.)

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MERRIMACK, SS No. 09-E-204

Weston J. Stow


Kimberly Marsh
Pat Fortin
Jeffrey Lyons


Weston Stow petitions under the Right to Know Law, RSA 91-A:7 (2001 & Supp. 2008) for an order directing the respondents, who are employees of the Department of Corrections ("DOC"), to provide him with policies and other documentation dating from March 1991 to December 29, 2008, concerning the sex offender treatment program at the New Hampshire State Prison. The Respondents move to dismiss the petition on the grounds that they have responded to Stow's request and his petition is moot. There was a hearing on the petition at the New Hampshire State Prison on June 12, 2009. The court finds and rules as follows.

On March 23, 2009, Stow submitted a written request to Kimberly Marsh, the Director of the Prison's Sex Offender Treatment Program, for a copy (or instructions on how to find a copy) of DOC's Policy and Procedure Directives [2] ("PPD") 6.34 and 6.35, and "any other official policy signed by the Commissioner stating that prisoners with sex offenses are not allowed to participate in the SOT program until they are on their last consecutive sentence." (Pet'r's Ex. C1). Marsh responded in writing that Stow could obtain copies of the PPDs at the prison library. In response to Stow's request for the policies, the librarian responded that "[t]hese PPDs have not been sent to the library. At one time they were deleted. I now have the unsigned copies in the library, as they have been renewed." (Pet'r's Ex. C2). It appears, however, that Stow was able to view PPD 6.35 at the library. (Pet'r's Ex. C3).

In a subsequent request, dated April 2, 2009, Stow indicated that he also sought:

a copy or the ability to view a copy of any PPD signed by any N.H. Dept of Corr. Commissioner as it relates to the sex offender treatment program (or any similar named program designed for sex offenders) as it appeared in 1990 and June of 2003 and any and all times, revisions since Jan of 1990.

(Pet'r's Ex. C3). He also requested from Jeff Lyons of the Commissioner's Office,

a copy . . . or allow me to view . . . copy's [sic] of any PPD's signed by any N.H. Dept. of Corr. Commissioner regarding the sex offender treatment program or any such similarly named program designed to treat sex offenders that's existed since Jan 1990 up to and through (including any revisions) 12/29/08. I do have PPD 6.35 eff. Date 12/30/08.

(Pet'r's Ex. C5). Lyons provided the following written response: "There are no policies spefic [sic] to sex offender treatment prior to the current one. No documents exist." (Id.)

[3] Stow offers three reasons for his belief that DOC employees violated RSA 91-A. First, he refers to Marsh's statement that the DOC had recently "adjusted" their policy. He reasons that in order for a policy to have been adjusted, there must have been a written policy already in effect. Second, he refers to the librarian's statement that the prior PPDs were deleted. Since the ones be viewed in the library were renewed versions, he says there must have been old ones in place. Finally, he argues that the sex offender treatment program was and is a large program at the prison and that it is not plausible the program was run without written policies other than the ones he saw in the prison library.

The purpose of the Right to Know Law is to "ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." RSA 91-A:1. To this end, the law ensures that "[e]very citizen . . . has the right to inspect all public records" of public bodies and agencies. RSA 91-A:4, I. In addition, each public body or agency "shall, upon request for any public record reasonably described, make available for inspection and copying any such public record within its files when such records are immediately available for such release." RSA 91-A:4, IV. In addition,

[i]f a public body or agency is unable to make a public record available for immediate inspection and copying, it shall, within 5 business days of the 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.

[4] Id. The law provides that "[a]ny person aggrieved by a violation of this chapter may petition the superior court for injunctive relief." RSA 91-A:7. Such a petition "shall be deemed sufficient if it states facts constituting a violation of this chapter." Id.

The court agrees with Stow that the DOC employees' written responses imply the existence of a policy relating to the sex offender treatment program before the adoption of the current PPD. However, the court is not convinced that these responses compel the conclusion that a written policy or documentation existed before 2008. As such, the respondents' answers to Stow's requests appear to have satisfied the DOC's disclosure requirements under RSA 91-A:4, IV. While an agency resisting disclosure of a public record under the Right to Know Law bears the burden of proof, see N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 439 (2003), it does not appear that the officials in this case are resisting disclosure.

At the same time, the court is mindful of the fact that the Right to Know Law favors disclosure. Also, as the court finds Stow's arguments regarding the existence of prior policies to be reasonable, the court believes the respondents must provide a stronger showing that other documents do not exist and that they have satisfied their duty under the law. See e.g., Stephenson v. Internal Revenue Service, 629 F.2d 1140, 1145 (5th Cir. 1980) (noting that under federal law, "[i]n situations where records do not exist, affidavits are probably not only sufficient [5] but possibly the best method of verification."); Ahlers v. Dillon, 532 N.Y.S.2d 22 (N.Y. App. Div. 1988).

Accordingly, it is hereby ordered that the respondents shall (1) provide Stow with access to documents responsive to his request, to the extent the documents exist and are in their possession or subject to their control, and (2) to the extent they do not possess or control such documents, the respondents shall provide Stow with an affidavit attesting to the fact that they have searched for materials responsive to his request and have determined they do not exist or are not within their possession.


Date: June 26, 2009    /s/   

Brian T. Tucker

Presiding Justice