Glynn v. Town of Chester, Doc. No. 218-2003-E-569 (Rockingham Super. Ct., January 16, 2004) (Coffey, J.)

Pages: 1 2 3 4 5 6




Dennis P. Glynn, III


Town of Chester, Chester Town Fair Committee,
and Vaughn McGillen



Plaintiff brings suit requesting records of defendant Chester Town Fair Committee ("CTFC") be made available to plaintiff and attorney's fees under New Hampshire's right-to-know statute. Defendants object, arguing the CTFC is not a public body subject to the right-to-know statute. The Court held a hearing on the issue of the release of documents on December 18, 2003. The issue of attorney's fees has been bifurcated. Based upon the evidence, the parties' arguments and the applicable law, the Court finds and rules as follows.

The present action stems from an incident at the Town Fair in Chester, New Hampshire on September 6, 2003. (Pl.'s Ex. 1, Doc. 1-4). A group of parents of members of the Chester Girl Scouts, including plaintiff, sold pins in the shape of a star with red, white, and blue flashing lights at a booth at the Town Fair. At dusk, president of the CTFC, defendant Vaughn McGillen, approached the parents and told them to stop selling the pins because the pins were competing with glow necklaces sold by the Chester Police Association and the Girl Scouts had not listed the pins on their booth application.

[2] This incident spurred plaintiff to send a letter to the Town of Chester Board of Selectmen ("the Board") on September 8, 2003, requesting copies of each booth application submitted for the 2003 Chester Town Fair. (Pl.'s Ex. 1, Doc. 1-1). Plaintiff repeated his request on September 17, 2003 and further requested copies of the minutes of meetings of the CTFC for 2002 and 2003. (Pl.'s Ex. 1, Doc. 1-3). That same day, the Board advised plaintiff the CTFC is not a public body subject to New Hampshire's right-to-know statute, but the Board would forward plaintiff's request to the CTFC in hopes it would voluntarily comply. (Def.'s Ex. A). On September 28, 2003, plaintiff requested copies of any emails of the CTFC that were stored on Town computers. (Pl.'s Ex. 1, Doc. 1-5.) The CTFC responded to plaintiff's request for the booth applications on September 30, 2003, telling plaintiff the CTFC was not a public body subject to the right-to-know statute. (Pl.'s Ex. 1, Doc. 5-1.) Although the CTFC did not voluntarily give plaintiff copies of the requested documents, it told plaintiff it had reviewed the documents and found the Girl Scout parents had not submitted a separate application, nor were the pins listed on the Girl Scouts' application. On October 3, 2003, plaintiff filed the instant action, seeking disclosure of the CTFC's records. On October 14, 2003, plaintiff expanded his request for documents to include the CTFC's bank account records.

New Hampshire's right-to-know statute is found at RSA chapter 91-A (2001 & Supp. 2003). The purpose of the statute "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 (2001). "[W]hile the statute does not provide for unrestricted access to public records, [the Court] broadly construe[s] provisions [3] favoring disclosure and interpret[s] the exemptions restrictively." Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540, 546 (1997) (citations omitted).

Here, the central issue is whether the CTFC is a public body subject to the disclosure requirements of RSA 91-A. Plaintiff argues the CTFC is an agency of defendant Town of Chester ("the Town"). Defendants claim the CTFC is an independent, private group of volunteers, who do not perform any governmental function and are not subject to the Town's control.

Under RSA 91-A:1-a, I(d) (Supp. 2003), "public proceedings" are defined as "the transaction of any functions affecting any or all citizens of the state by . . . [a]ny board, commission, agency or authority, of any . . . municipal corporation . . . or any committee, subcommittee or subordinate body thereof, or advisory committee thereto." In determining whether a particular group fits this definition, the New Hampshire Supreme Court has stated, "[A]ny general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done . . . . The unavoidable fact is that each new arrangement must be examined anew and in its own context." Bradbury v. Shaw, 116 N.H. 388, 390 (1976) (quotation and citations omitted).

Under the present set of factual circumstances, the Court finds the CTFC is not a board, commission, agency, authority or committee of the Town and, thus, is not subject to the right-to-know statute. In Union Leader Corp., the New Hampshire Supreme Court held the New Hampshire Housing Finance Authority was subject to RSA 91-A because it "performs the essential government function of providing safe and affordable housing to the elderly and low income residents of our State." Union Leader Corp., 142 N.H. at [4] 547. Other important factors leading to this decision were state statutes defining the role of the authority as a "public instrumentality" performing public functions of the state using public financing. Id., (citing Laws 1981, 466:1, X; RSA 204-C:2; RSA 204-C:8, V (1989)).

In contrast, the CTFC does not perform any essential function of the Town's government. The Town Fair is merely a civic community event organized by an informal group of volunteers, who happen to work for various government agencies. The Fair is designed to provide different organizations in the Town of Chester an opportunity for fundraising. The CTFC is not an organized business or governmental entity, it does not have any bylaws, and its members are not elected or appointed by Town officials. Moreover, the Town has no control over the actions or documents of the CTFC. (Def.'s Ex. A.) Neither the CTFC nor the Town Fair is the product of any state statutes or Town ordinances. See Union Leader Corp., 142 N.H. at 547 (holding a statutorily-created authority subject to right-to-know statute). Furthermore, the CTFC does not involve itself in governmental programs or decisions. See Bradbury, 116 N.H. at 389-90 (discussing committee's involvement in sale of municipally-owned land and discussions of extensions of city water and sewer lines and city streets as reasons to hold committee was subject to right-to-know statute).

Plaintiff argues the Court should look to the totality of the circumstances and find the CTFC is a public body. The Court is not persuaded by this argument. "Not all organizations that work for or with the government are subject to the right-to-know law." Bradbury, 116 N.H. at 389. Here, while the evidence shows the Town and the CTFC work together to produce the Fair, the CTFC is not involved in the essential functions of [5] government. For instance, plaintiff points to money the Town has spent in years past in conjunction with the Fair and the use of the Town's ball fields as the location of the Fair as evidence that the CTFC is a public body controlled by the Town. However, the Town funds are used for the fireworks display held the night of the Fair and the Town votes yearly on raising and expending those funds. (Pl.'s Ex. 1, Docs. 3-1 to 3-10 & 11-1 to 11-2.) In addition, the CTFC requests permission to use the Town's ball fields, provides cleanup and its own portable toilets, and guarantees repairs if any damage is caused during the Fair, as would any other nongovernmental entity using Town property. (Def.'s Ex. 2).

Plaintiff also claims Town employees are paid for working at the Fair, rendering the Fair a Town event. (Pl.'s Ex. 1, Docs. 10-2 to 10-6 & Pl.'s Ex. 2). The Court disagrees. Although some Town employees were paid for their time at the Fair, those employees work for departments that have booths at the Fair and were compensated for their time preparing and manning these booths. Other employees were paid for their time at the Town Coffee Klatch. (Pl.'s Ex. 1, Docs. 10-4 to 10-5.) While the Coffee Klatch is held on the same day as the Fair, it is not part of the Fair. (See Pl.'s Ex. 1, Docs. 5-2 & 13-1 to 13-3.)

Plaintiff also points to the presence of Town police and fire department employees at the Fair as evidence it is a Town-controlled activity. This ignores the obligation of the police and fire departments to serve the public regardless of the private or public nature of an event. It is not unusual for police and fire departments to maintain some presence at events that draw large numbers of community members.

[6] Thus, while the Town does participate in the Fair, this participation is not sufficient to render the CTFC a public body or its actions public proceedings. Accordingly, plaintiff's requests that all records of the CTFC be made available to him and that defendant Vaughn McGillen be declared an official of a public body are DENIED.


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Presiding Justice