THE STATE OF NEW HAMPSHIRE
MERRIMACK, SS. SUPERIOR COURT
Andy Martin
v.
Governor John Lynch, et al.
No. 11-CV-801
ORDER
The petitioner, Andy Martin, brings this action under RSA 91-A, New Hampshire's "Right-to-Know Law," seeking to require the respondents, Governor John Lynch and Attorney General Michael Delaney, to disclose semi-annual trust reports filed by the Tillotson Trust and Tillotson Corporation (collectively "Tillotson") as well as acquisition documents related to the sale of the Balsams Hotel ("Balsams"). The court heard argument on January 18, 2012. Because semi-annual trust reports are exempt under RSA 91-A:5, IV, the petitioner's request for the disclosure of the reports is DENIED. Because the respondents have failed to sustain their burden of showing that acquisition documents are exempt under RSA 91-A:5, IV, the petitioner's request for the disclosure of those documents is GRANTED.
The Balsams is a resort hotel located in Dixville Notch, New Hampshire. Before December 7, 2011 Tillotson owned the Balsams. While held by Tillotson, the Balsams, was considered "charitable property." As a result, Tillotson was required to file semi-annual reports with the Charitable Trusts Unit ("CTU") of the Attorney General's office. The semi-annual reports contained financial information including all of "the assets held for charitable purposes and the receipts and expenditures in connection therewith...." RSA 7:28.
[2] In 2010, Tillotson attempted to sell the Balsams to "Ocean Properties." Tillotson was required to seek approval from the CTU. As a result, Tillotson submitted certain acquisition documents to the CTU, including a purchase and sales agreement. The CTU approved the sale. Shortly thereafter, the deal between Tillotson and Ocean Properties fell apart.
On July 14, 2011, the petitioner filed Right-to-Know requests with the Governor's office and the Attorney General's office, seeking: (1) all records related to the sale of the Balsams; (2) copies of records/contacts with Ocean Properties or the Walsh family that owns Ocean Properties; (3) annual reports for Tillotson for the past ten years; and (4) a copy of the original Tillotson Trust documents. On August 5, 2011, the Attorney General's office disclosed a series of letters dated May 6, 2011 and June 17, 2011 approving the proposed sale of the Balsams. The Attorney General's office did not disclose any of the original Tillotson Trust documents because it had previously disclosed them to the petitioner. The Attorney General's office also did not disclose any of the acquisition documents related to the Balsams or Tillotson's semi-annual reports because the Attorney General's office believed they were exempt under RSA 91-A:5, IV. The instant RSA 91-A action in this court followed on November 23, 2011. The petitioner also sought to remove Tillotson trustees, to reopen the Balsams, and to appoint a receiver for Tillotson.
On December 7, 2011, Tillotson sold the Balsams to Balsams View, LLC. On January 9, 2012, the petitioner filed another Right-to-Know request with the Attorney General's office, this time requesting all documents related to the December 7, 2011 sale. By letter dated January 13, 2012, the Attorney General's office denied the petitioner's request, once again on the ground that the information was exempt under RSA 91-A:5, IV.
On January 17, 2012, the Governor's office responded to the petitioner's July 14, 2011 Right-to-Know request. The Governor's office apologized for the late response and explained, "Your request was received by the Office of Citizens Services and was inadvertently misfiled." The Governor's office then disclosed documents responsive to the petitioner's request. On January 18, 2012, the [3] court held a hearing on the petitioner's RSA 91-A claims. At the hearing, the petitioner agreed to proceed first on his RSA 91-A claims and seek ancillary relief only if necessary. The petitioner also orally moved to amend his RSA 91-A petition to include his January 9, 2012 Right-to-Know request.
The petitioner seeks disclosure of two categories of documents, both of which are under the control of the CTU; (1) Tillotson's semi-annual trust filings for the past 10 years; and (2) acquisition documents related to the sale of the Balsams. The respondents maintain that these documents are not subject to RSA 91-A disclosure because Tillotson is a private entity. Furthermore, the respondents contend that both categories of documents fall under the "confidential and financial documents" exception of RSA 91-A:5, IV. The court will address the parties' arguments in turn.
Under the Right-to-Know Law, "[e]very citizen ... has the right to inspect all governmental records in the possession, custody, or control of ... public bodies or agencies ... and to copy and make memoranda or abstracts of the records or minutes so inspected." RSA 91-A:4, I. "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." Murray v. N.H. Div. of State Police, Special Invest. Unit, 154 N.H. 579, 581 (2006). Courts must "resolve questions regarding the Right-to-Know Law 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. "Thus, [the court must] construe provisions favoring disclosure broadly, while construing exemptions narrowly." Id. "When a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure." Id.
The respondents do not dispute that the semi-annual trust reports and the acquisition documents constitute "governmental records," or that the CTU is a "public body." See RSA 91-A:1-a. They argue, however, that the records are not subject to disclosure because they were submitted by and relate to a private entity - Tillotson. The court disagrees. When deciding whether disclosure is necessary under the Right-so-Know Law, the proper inquiry is not whether the documents were submitted [4] by or relate to a private entity; instead, the question is whether the records are within the custody or control of an entity subject to the Right-to-Know Law. See Prof. Fire Fighters Assoc. of N.H. v. Local Gov't Center, 159 N.H. 699, 706-07 (2010). Because the CTU is a public entity, it is subject to the Right-to-Know Law and must disclose the records in its possession, unless those records are protected by an exemption.
The respondents argue that the semi-annual trust reports are protected by an exemption; specifically RSA 91-A:5, IV, which exempts from disclosure "[r]ecords pertaining to ... confidential, commercial, or financial information." The court agrees. Tillotson's semi-annual reports contain "information as to the nature of the assets held for charitable purposes and the administration thereof by the trustee...." RSA 7:28. The reports also include the "receipts and expenditures in connection" with the property held by the trust. Id. This type of information falls squarely within the plain language of the "financial information" exemption of RSA 91-A:5, IV. As such, it is not subject to disclosure.
The respondents next argue that the acquisition agreements submitted by Tillotson are exempt from disclosure because they represent "confidential proprietary business/commercial information under RSA 91-A:5, IV." The respondents maintain that the agreements are confidential because that was Tillotson's intent when submitting them. The court is not persuaded.
The respondents bear the burden of proving that information is confidential. Hampton Police Ass'n, Inc. v. Town of Hampton, 162 N.H. 7, 14 (2011). "The determination of whether is confidential for purposes of [the] Right-to-Know Law is assessed objectively, not based upon the subjective expectations of the party generating the information." Id. Given this analysis, Tillotson's belief that the acquisition documents would remain confidential is of no consequence.
The respondents have failed to sustain their heavy burden of proving that the acquisition documents are exempt under RSA 91-A:5, IV. They have offered nothing more than a general allegation that the documents are "confidential." This generality is not sufficient. See id. Indeed, public policy favors disclosure. Cf. RSA 7:19-b (requiring health care trusts to provide detailed information of acquisition [5] transactions to the CTU and making such submissions subject to RSA 91-A). Because the respondents have failed to provide reasons why the disclosure of the acquisition agreements would be subject to the RSA 91-A:5, IV exemption, other than Tillotson's subjective expectation, they cannot overcome the policy preference for disclosure.
Based on the foregoing, the court concludes that respondents have sustained their burden of showing that Tillotson's semi-annual trust reports are subject to the RSA 91-A:5, IV exemption, but have not sustained their burden of showing that the acquisition agreements are likewise exempt. Accordingly, the petitioner's request for disclosure of Tillotson's semi-annual reports is DENIED and his request for disclosure of the acquisition documents is GRANTED.
So ORDERED.