Concord Monitor v. Concord Housing Authority, Doc. No. 217-2010-CV-847 (Merrimack Super. Ct., December 15, 2010) (McNamara, J.)

Pages: 1 2 3 4 5 6


The State of New Hampshire


Newspapers of New Hampshire, Inc.,
d/b/a Concord Monitor


Concord Housing Authority

Docket No. 10-CV-847


The Petitioner, Concord Monitor, brought this Verified Petition for Access to Public Records Pursuant to Part 1, Article 8 of the New Hampshire Constitution and the Right-To-Know Law, RSA Ch. 91-A, as Amended ("Verified Petition"). Petitioner complains that Respondent, Concord Housing Authority ("CHA"), refuses to produce a purchase and sales agreement (P&S), entered into by Respondent, for the acquisition of real property located at 23-25 Green Street. Petitioner now seeks judicial relief. Respondent objects. For the reasons stated below, the Verified Petition is GRANTED IN PART AND DENIED IN PART.


David and Seelye Longnecker ("Longneckers") own real property located at 23-25 Green Street, Concord, New Hampshire. The parcel includes a home built sometime around 1840. Respondent recently entered into a P&S with the Longneckers to buy the property. This transaction has generated some controversy as Respondent allegedly plans to demolish the existing home, which some believe holds historical significance.

[2] The P&S is contingent upon Respondent obtaining land use approval from the City of Concord. The project has already been approved by the Concord Zoning Board and is scheduled for review before the Concord Planning Board on December 15, 2010. According to Petitioner's Verified Petition, the Concord Demolition Review Committee intends to oppose the project at that meeting.

In late October, Petitioner began publishing articles about Respondent's plans to buy the Green Street property and demolish the existing home. Petitioner then objected to the plan in an editorial published in mid-November, 2010, "Preserve Historic Green Street home." On November 30, 2010, a reporter at Petitioner newspaper, as part its ongoing coverage of the story, requested "copies of all records related to the building at 23-25 Greet St. in Concord and the Concord Housing Authority's planned use of that property . . .including any purchase agreement for the property. . . ," pursuant to the RSA 91-A, the Right-To-Know law.

Though the Respondent complied with some of Petitioner's request, it did not produce the P&S and would not disclose the agreed upon purchase price. After Respondent refused to turn over the P&S, Petitioner filed the present Verified Petition, arguing that the public's interest in the historical building outweighs the Respondent's and Longneckers' needs to conceal the details of the sale. Respondent objects on the grounds that the P&S terms, especially the purchase price, are confidential and thus exempt from public disclosure, pursuant to RSA 91-A:5(IV). At oral argument, CHA stated that it is willing to produce the P&S with the price details redacted. Though Respondent refuses to disclose the purchase price, Respondent gave Petitioner a copy of the budget, which indicates the amount CHA allotted for the purchase.

[3] II

"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 for the people.'" N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 438 (2003) (quoting RSA 91-A:1)). "The Right-to-Know Law 'helps further our State Constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted." Id. (quoting Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 553 (2002)). The Court "'resolve[s] questions regarding the [Right-to-Know] [L]aw with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents. '" Id. at 439 (quoting Goode, 148 N.H. at 554).

Notwithstanding the general policy of government transparency, RSA 91-A:5 IV provides statutory exemptions for, among other things, "confidential, commercial, or financial information." In order for confidential information to be exempt, it must also constitute an invasion of privacy if disclosed. Union Leader, 142 N.H. at 552 (citing Perras v. Clements, 127 N.H. 603, 605 (1986)) (emphasis added). The New Hampshire Supreme Court has stated that it finds "instructive" the test used by the federal courts to determine whether information is confidential. Union Leader 142 N.H. at 554. To show that information is "confidential", the party resisting disclosure must prove that disclosure is "likely to (1) impair the State's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained." Union Leader Corporation v. New Hampshire Housing Finance Authority, 142 N.H. 540, 553-54 (1997) (quoting National Parks and [4] Conservation Ass'n v. Kleppe, 547 F.2d 673, 677-78.) (holding that exception protected the competitive information of National Park concessionaires). A court must also weigh the "benefits of the disclosure to the public" against the "benefits of non-disclosure to the government." Union Leader, 142 N.H. at 553-53 (quoting Chambers v. Gregg, 135 N.H. 478, 481 (1992).

If the P&S is made public in this case, there is little doubt that the sellers will suffer a competitive injury. If the transaction does not close, potential buyers would gain a competitive advantage over the seller because they would know how much the seller was willing to accept for the property. This constitutes the "substantial harm to the competitive position of the person from which the information was obtained", the Longneckers. Union Leader, 142 N.H. at 554.

The private injury to the Longneckers constitutes a public injury as well. Part of CHA's mission is to purchase properties that can be redeveloped for housing. These purchases are often contingent on zoning and planning board approval. If the contingencies are not met, the agreement is terminated and the house goes back on the market. In the ordinary course, information is a critical aspect of a party's bargaining position. Usually the terms of a P&S are private and, thus, returning a house to the market does not necessarily affect the seller's ability to negotiate, because the offer from a willing buyer to a willing seller does not become public and affect other negotiations on the same property.

On the other hand, if sellers know that any offer they make to a public entity for real property will become public, they will likely be more conservative in setting their offering price, since that price will be available to other potential buyers if the sale does [5] not close. It follows that the public entity would also be constrained in its ability to negotiate. Because CHA's ability to negotiate land purchases is crucial to its mission, it as well as the sellers, has a strong interest in not disclosing this information until after the sale is completed. Moreover, in balancing the benefits of disclosure to public and the benefits of non-disclosure to the CHA, the Court notes that the public's interest in understanding details of negotiations between the CHA and the Longneckers can be satisfied by disclosure of the entire document after the transaction closes. See, e.g. Union Leader, 142 N.H. at 559 (authorizing full disclosure of a complex transaction involving the New Hampshire Finance Authority after the transaction was completed). And as noted above, the public is already aware of the amount the CHA has budgeted for purchase of the property.


In sum, after weighing the interests of the parties involved, in light of Petitioner's access to all other details about the sale, and considering the high potential for harm to Respondent and the Longneckers, it appears that the negotiated price in the P&S is "confidential" under RSA 91-A:5(IV). Apart from the selling price of the property, the P&S, as a whole, does not warrant the same degree of protection. Indeed, Respondent has offered to produce a copy of the P&S for Petitioner, as long as it may redact the price information. Therefore, the purchase and sale agreement, excluding price details, is not confidential for the purposes of RSA 91-A:5(IV). Respondent shall produce a copy of the purchase and sale agreement after redacting the pertinent price information.

Consistent with the above analysis, Petitioner's request is GRANTED with respect to the purchase and sale agreement and DENIED with respect to purchase price [6] information contained therein.


   12/15/10       /s/   

Date Richard B. McNamara,

Presiding Justice