THE STATE OF NEW HAMPSHIRE
ROCKINGHAM, SS. SUPERIOR COURT
Leo E. Beauchamp, III
v.
Board of Selectmen, Town of Danville
04-E-338
ORDER
Plaintiff, Leo Beauchamp, brought this action to require the Board of Selectmen of the Town of Danville (the "Board") to release the minutes and records relating to a non-public hearing held by the Board on August 18, 2003, in which it voted to terminate the plaintiff's employment as a part-time police officer for the Town of Danville.1 The Board claims that the minutes are not subject to public review and that the plaintiff is not entitled to the minutes from the meeting.
RSA 91-A is New Hampshire's Right-to-Know Law and was enacted with the statutory and constitutional objectives of facilitating public access to public documents and meetings. See RSA 91-A:1 (supp. 2003); NH CONST. pt. 1, art. 8; see also Goode v. New Hampshire Office of Legislative Budget Assistant, 148 N.H. 551, 553-4 (2002). However, while this section is generally construed broadly, it does not provide for [2] unrestricted access to public records. See id. In determining whether petitioner has a valid claim under this statute, the statutory provisions favoring disclosure will be broadly construed and its exemptions will be interpreted restrictively. See id.
The Right-to-Know Law applies to "any board or commission of any state agency or authority." Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 N.H. 540, 547. (quoting RSA 91-A:1-a, III (1990)). Accordingly, this law applies to the Town of Danville, Board of Selectmen. The plaintiff claims the Board acted in violation of this statute by holding a non-public meeting without notice that his employment could be terminated. The Right-to-Know Law requires that:
. . . .
II. Only the following matters shall be considered or acted upon in nonpublic session:
(a) The dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted.
RSA 91-A:3, II (Supp. 2003).
This court will apply the ordinary rules of statutory construction to the Right-to-Know Law and looks to the plain meaning of the words used. Goode, 148 N.H. at 553-4. The plain language of this statute is clear. Unless an individual has a right to a meeting when his or her dismissal is at issue, and unless that person requests the meeting be open to the public, a non-public session is statutorily valid.
The law is clear in this case that the plaintiff was not entitled to a meeting concerning his dismissal. RSA 41:48 (Supp. 2003) states that, "any permanent constable or police officer who is elected . . . or appointed for full-time duty . . . shall continue to hold such office during good behavior, unless sooner removed for cause by [3] the selectmen, after notice and hearing . . ." (emphasis added). However, in this instance, the plaintiff is a part-time officer and thus does not fall under the definition of those police officers entitled to notice and a hearing. Additionally, chapter 6 of the June 2001 Handbook for Local Officials, published by the New Hampshire Municipal Association and entitled The Right-to-Know Law & Management of Public Records and Reports states the following:
Not all employees have a right to a meeting with the selectmen, and this statute does not create such a right. A right to a meeting may, in some instances be found in the statutes. For example, RSA 41:48 gives elected police chiefs the right to notice and a hearing prior to removal from office by the selectmen. A right to a hearing may be established by provisions in your municipality's employment or personnel policy, or through provisions in a collective bargaining agreement, or may be an unwritten practice or policy for some or all municipal employees.
(Def. Memo. of Law, Doc. No. 6). Nothing in the plaintiff's pleadings or arguments at the hearing support his position that he was entitled to advance notice of the non-public session. Therefore, the court finds that the plaintiff was not entitled to advance notice of the meeting, and the August 18, 2003 non-public session held by the Board was statutorily valid.
In addition, the plaintiff contends that he is entitled to the minutes from the non-public hearing under RSA 91-A:4, I. RSA 91-A:4, I states, "[e]very citizen during the regular and business hours of all such bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, including minutes of meetings of the bodies or agencies . . . ." However, RSA 91-A:3, III states:
Minutes of proceedings in a nonpublic session shall be kept and the record of all actions shall be promptly made available for public inspection, except as provided in this section. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 [4] hours of the meeting, unless, by recorded vote of 2/3 of the members present, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the body or agency itself or render the proposed action ineffective . . . In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.
The court finds the following relevant facts as recorded in the Selectmen's Abridged Non-Public Session Minutes, August 18, 2003 (Def. Memo. of Law, Doc. No. 6). Four individuals attended the Board's August 18, 2003 non-public session. One individual left before the vote occurred, and it is unclear from the record whether that individual was a member of the Board who possessed voting rights. At the close of the session, a motion was made to seal the minutes pertaining to the plaintiff. The motion was seconded and was passed by a two-thirds majority of the Board members present. As the meeting was non-public for the purposes of discussing the termination of a public employee, and the records were sealed by a recorded two-thirds majority of the Board, the court finds that under these circumstances the Board properly sealed the minutes under the statutory provisions of RSA 91-A:3, III. However, the Board agreed after the court's September 24, 2004 hearing to allow the plaintiff full access to the minutes pertaining to his termination. Accordingly, the plaintiff's request for injunctive relief is now MOOT.
Finally, the court addresses the plaintiff's request for attorney's fees and costs. The relevant portion of RSA 91-A:8 states:
I. If any body or agency or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a public record or refuses access to a public proceeding to a person who reasonably requests the same, such body, agency, or person shall be liable for reasonable attorney's fees and costs incurred in a [5] lawsuit under this chapter provided that the court finds that such lawsuit was necessary in order to make the information available or the proceeding open to the public. Fees shall not be awarded unless the court finds that the body, agency, or person knew or should have known that the conduct engaged in was in violation of this chapter . . . In any case where fees are awarded under this chapter, upon a finding that an officer, employee, or other official of a public body or agency has acted in bad faith in refusing to allow access to a public proceeding or to provide a public record, the court may award such fees personally against such officer, employee, or other official.
The plaintiff alleges that he requested a copy of the minutes from the August 18, 2003 non-public session and that the Board never responded to his request. This, the plaintiff contends, amounts to bad faith on the part of the Board and entitles him to attorney's fees. However, because the court finds the records were properly sealed and the Board acted within its authority when it denied the plaintiff access to the minutes, the court DENIES plaintiff's request for attorney's fees and costs.
So ORDERED.
1 Since it appeared to the Court that the petitioner desired the records and minutes for pretrial discovery purposes to evaluate if he had a case against the respondents for an illegal or wrongful discharge, at the preliminary hearing the Court requested that the respondent allow the petitioner to examine the records without prejudice, which it did. The petitioner seeks his attorney's fees, insisting that the respondent's denial was a violation of the Right-to-Know law.