Frazel v. Rath, Doc. No. 217-2011-CV-761 (Merrimack Super. Ct., December 28, 2011) (McNamara, J.)

Pages: 1 2 3 4 5


The State of New Hampshire


Roy Frazel


Christine Rath, Superintendant, Concord School District

NO. 217-2011-CV-761


The instant case is a Petition for Declaratory Judgment, Injunctive Relief, Fees, Costs and Sanctions pursuant to RSA 91-A:7 and 8. Petitioner, Roy Frazel, seeks documents he requested from the Concord School District pursuant to RSA 91-A. The Court held a hearing on the Petition on December 15, 2011. For the reasons stated in this Order, the Petition is DENIED.


In a July 8, 2011 letter, Petitioner made a request pursuant to RSA 91-A, which is attached to his Petition as Exhibit E. In that request, Petitioner asked specifically for two documents and also made a generalized request. In his letter to Respondent, Dr. Christine Rath, Superintendent of Concord School District, while not specifically citing 91-A, the Petitioner wrote:

Dear Dr. Rath,

This letter is to request the following information from you.

1. The minutes from a "meeting" held on December 20th, 2010. In accordance with CSD Policy #248 "Response to Public Information Request".

[2] 2. The notes from a meeting held between you and Aimee Frazel in July 2010, as well as any and all emails on the CSD server that contain my name.

3. On Wednesday June 22nd, 2011[,] I did a custody transfer with my daughter Madeleine and her mother Aimee Frazel (now Aimee Mosher). At this transfer she stated that during her meeting with you in July of 2010 that you, Chris Rath, stated that Barbara Higgins was guilty of "numerous indiscretions" and had "acted inappropriately on many occasions." I would like you to officially state whether or not Aimee (Frazel) Mosher's statements are accurate.

Respondent responded on July 18, 2011, stating: "I write in response to your letter of July 8, 2011, received in my office on Monday, July 11, 2011. There are no public documents that I can provide in response to your request. A search of my email box found no emails that contain your name."

Petitioner then filed a 91-A Petition in this Court. In addition to seeking the documents that Respondent allegedly withheld, Petitioner also included within his Petition two additional requests that were never made to Respondent. The additional requests include: (1) the statutory reference he claims Respondent used to her attorney to deny binding arbitration of Ms. Higgins; and (2) "proof from the Computer Tech guys from the Concord School District of the date and time the letter was actually produced by Principal Gene Connolly dated May 4, 2010."

Respondent filed an answer asserting that the minutes Petitioner sought were of a meeting with counsel. Petitioner did not dispute this fact. At the December 15, 2011 hearing, Respondent testified that she responded negatively to the letter seeking "documents on the Concord School District server" because any documents containing Ms. Higgins had been removed from the server, segregated, and placed in a litigation [3] hold. Petitioner produced no evidence to contradict Respondent's claim. Petitioner had no witnesses to support his claim that any documents actually existed on the server at the time he made his request. Petitioner also did not dispute that the final two requests were never presented to either Respondent or the School District but, instead, were made for the first time in his Petition.


RSA 91-A does not apply to the consultations with counsel. RSA 91-A:2, I (b), specifically provides that as used in the Right-to-Know Law, the term "meeting" does not include "consultation with legal counsel." Plaintiff argued that in order for this exception to apply, a meeting must be held and a vote to turn the meeting into a consultation with counsel must occur. He cites no authority for that proposition, and the Court is unaware of any such authority. Accordingly, Petitioner cannot succeed on this claim.

Additionally, Petitioner has no evidence to dispute the fact that the documents he seeks do not exist on the City's server. It is true that if he had requested the documents on a "litigation hold," Respondent would have stated that they do exist and would have responded while reserving the right to claim that these documents were not governmental records but rather personal e-mails between Petitioner and Ms. Higgins. However, the Court need not decide this issue because it finds that based on the undisputed testimony, Respondent complied with Petitioner's request for "all documents on the Concord School District's server."

Petitioner attempts to assert that a later letter of July 20, 2011, constituted a request for the documents. However, the Court does not find it to be a request. In the [4] first place, the July 20, 2011 letter does not track the language of the complaint; and second, the letter seems to confusingly attempt to bar the City from obtaining the emails that he seeks (and probably already possessed since he is seeking e-mails to and from him). He provided, "If even one of my Emails ends up in public[,] I will hold you personally responsible. I am asking one more time. I want a copy of every single Email between Barb Higgins and myself that was ever on that server." While conceding that the language "ever on the server" could be construed to broadly request all documents, Respondent stated that it regarded this letter as "a threat" and not a request. Based on letter's language, the Court finds Respondents position reasonable. The Court need not, at this time, decide the difficult question of whether the documents requested constitute "government records" within the meaning of RSA 91-A. In any event, there is no collateral estoppel provision that would bar the Petitioner from making the same request and for these reasons, the Court denies Petitioner's claim.

Finally, the Petitioner's additional requests, made for the first time in his Right-to-Know Petition, must be dismissed. Apart from the fact that the Petitioner has no standing to bring a petition in court to seek documents he never requested, the Right-to-Know law does not require the District to create new government records to answer a question. See RSA 91-A:4, VII; see also Hampton Police Ass'n, Inc. v. Town of Hampton, 162 N.H. 7, 12 (2011) (the Right-to-Know Law does not "require a public body or agency to compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency."). Furthermore, opinions of counsel are not subject the Right-to-Know law. See, e.g., Society for the Protection of N.H. Forests v. Water Supply Pollution Control Comm'n, 115 N.H. 192 (1975).

[5] Accordingly, the petition is dismissed.


   12/28/11       /s/   

DATE Richard B. McNamara,

Presiding Justice