The State of New Hampshire
MERRIMACK, SS SUPERIOR COURT
Robert Constantine
v.
Nicholas A. Toumpas
NO. 10-CV-830
ORDER
Petitioner, Robert Constantine, alleges that Respondent, Nicholas Toumpas, Commissioner of the New Hampshire Department of Health and Human Services ("DHHS") violated RSA 91-A:4, Right to Know. For the following reasons, Mr. Constantine's petition is DENIED.
I
On November 16th, 2010, Mr. Constantine hand-delivered a letter, addressed to Commissioner Toumpas's office. Mr. Constantine intended the letter to serve as a Right to Know request, pursuant to RSA 91-A:4. Mr. Constantine divided his request into two parts. First, he asked a series of ten questions pertaining to the department's involvement in the scheduling of controlled drugs in general, and the scheduling or marijuana in particular. Next, Mr. Constantine asked the Commissioner to "provide copies of the following documents":
[2] - The official New Hampshire controlled drug schedule (scheduled pursuant to NH RSA 318-B-1-a) in effect on 9/04/2010 if such a schedule existed.
- All history of Controlled Drug schedules ever published by your department or other New Hampshire agencies that may have been delegated the task.
- I request the respective New Hampshire schedules themselves, the method(s) and name of the publication(s), the dates of publication and any other information as well as all memorandums concerning publication, revision or communication with the public or other government entities regarding the New Hampshire controlled drug schedule since the year 1969.
On December 6, 2010, Frank D. Nachman, Chief Legal Counsel to the DHHS Office of Operations support, responded to Mr. Constantine's letter on behalf of the Commissioner. Attorney Nachman answered the first set of questions generally, stating, "I can tell you that this department has not administratively scheduled, or attempted to schedule marijuana in any way different than the federal schedule." Then in a footnote, he wrote:
The Commissioner has the authority to act independently of the federal government in the scheduling of controlled substances. If he does not exercise that authority the federal action is adopted by default. To date, the commissioner has not exercised his authority to differ from the federal government. See NH RSA 318-B:1-a and NH Code of Administrative Rules He-C 500.
Then Attorney Nachman addressed Mr. Constantine's request for documents. With respect to the request for the official New Hampshire controlled drug schedule, he informed Mr. Constantine that "that schedule is also the federal controlled drug schedule published at http://www.deadiversion.usdoj.gov/schedules/index.html." With respect to the second request for "all history of Controlled Drug schedules ever published by [3] [DHHS] or other New Hampshire agencies," Attorney Nachman wrote that "[DHHS] has never scheduled a controlled substance independent of the federal government's scheduling." In a footnote, he added that the New Hampshire legislature, in 1998, scheduled four substances independent of the federal government. Otherwise, Attorney Nachman wrote, "[t]he history of the controlled drug schedule . . .is maintained and available at http://www.deadiversion.usdoj.gov/schedules/index.html#list."
Finally, Attorney Nachman informed Mr. Constantine how he could obtain copies of " . . any other information as well as all memorandums concerning publication, revision or communication with the public or other government entities regarding the New Hampshire controlled drug schedule since the year 1969."
II
Mr. Constantine alleges that Commissioner Toumpas violated the Right to Know law in that: (1) he failed to adequately respond to the request for information; (2) he failed to provide a copy of the New Hampshire controlled substance schedule; and, (2) the response was untimely. A hearing was held on January 7, 2010, in which Mr. Constantine asked the Court to compel the State to comply, with his request for information and award him costs and fees. No one appeared on behalf of the State.
Mr. Constantine first argues that Commissioner Toumpas violated RSA 91-A:4 by failling to answer his ten questions about the scheduling of controlled substances, particularly marijuana, in New Hampshire. The Court disagrees. The [4] Right to Know statute, RSA 91-A:4, states in part that, "[e]very citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5." (emphasis added). It is clear from the face of the statute that a person is entitled to view or copy government records and minutes. This does not mean, however, that they are entitled to have the government respond to general inquiries. Mr. Constantine did not provide, and the court is unaware of, any authority which compels Commissioner Toumpas to do so. Nevertheless, the Commissioner's office did provide a general answer to the questions. Therefore, the Court holds that the Commissioner did not violate the Right to Know law with his response to the first part of the letter.
Next, Mr. Constantine argues that Commissioner Toumpas' response violated the Right to Know law by failing to provide a locally generated schedule, as required by 318-B:1-b. Again, the Court disagrees. First, Attorney Nacham sufficiently addressed Mr. Constantine's question by referring him to the federal schedule and informing him that no locally produced schedule exists. Second, to the extent that the state failed to create its own schedule that was independent of the federal schedule, the matter does not involve RSA 91-A. Right to Know compels the government to share existing documents. It is not, however, a tool to [5] compel the government to create documents. Therefore, the State's response to the second portion of the letter did not violate the Right to Know law.
Finally, Mr. Constantine argues that Commissioner Toumpas violated RSA 91-A:4 by failing to reply in a timely manner. The Court disagrees. Mr. Constantine asserts that the commissioner had five days in which to respond to his request for information. He does not, however, provide legal authority for this proposition. Furthermore, the Court is unaware of a provision of RSA 91-A that creates any timeframe within which the state must respond to a request. Accordingly, the State did not violate Right to know laws by untimliness.
III
Mr. Constantine asserts that he is entitled to his costs and fees because the State violated RSA 91-A and because it failed to appear at the January 7, 2011 hearing. Again, the Court disagrees. The Right to Know statute, RSA 91-A:8 I, provides that "[i]f any public body . . . [violates a] provisions of this chapter . . . such public body . . . shall be liable for reasonable attorney's fees and costs . . . ." Because Mr. Constantine did not succeed on the merits here, he is not entitled to costs and fees.
Accordingly, Mr. Constantine's petition to compel the State to reply to his Right to Know request, and his request for costs and fees, is DENIED.
SO ORDERED.