Panciocco v. Town of Londonderry, Doc. No. 218-2012-CV-039 (Rockingham Super. Ct., March 20, 2012) (Delker, J.)

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NO. 218-2012-CV-0039


The plaintiff filed a petition seeking documents from the Town of Londonderry and the Londonderry School District pursuant to RSA 91-A. The Court held a hearing on the matter on February 23, 2012. In the petition, and again at the hearing, the plaintiff asserted that she was requesting copies of reports maintained by the Town of Londonderry pursuant to Town Ordinance, relating to impact fee transactions. The plaintiff asserted that she has spoken with or met with a number of Town officials in her quest to get documents relating to the receipt and disbursement of impact fees collected by the Town pursuant to RSA 674:21. At the hearing, the Court specifically asked the plaintiff whether she was seeking only the reports pursuant to the Town Ordinance or whether she was actually seeking any back-up documentation. She stated that she only sought the reports maintained by the Town pursuant to the Ordinance at this juncture.

The Town had a large stack of documents which counsel for the Town proffered had been provided to the plaintiff in response to her requests. The Town had a witness who was present at hearing and prepared to testify that those documents have been provided to the plaintiff. The Town also asserted that it had provided the plaintiff with a number of other documents in response to her conversations or meetings with Town officials. The Town further asserted that these documents were the only "reports" [2] maintained by the Town pursuant to Ordinance The plaintiff asserted that she had not received the documents referenced by the Town at the hearing.

The Court ruled that the Town and the plaintiff were required to meet and resolve the discrepancy about what documents had been provided to the plaintiff. If the plaintiff, for some reason, had not received the documents the Town maintains were sent to her, the Court ordered the Town to produce those records subject to its ordinary policy regarding right to know requests. See RSA 91-A:4, IV. The Court further ruled that to the extent the plaintiff was seeking back-up documents or other supporting records regarding the transactions reflected in the spreadsheets which consist of the reports maintained pursuant to Ordinance she was required to make more specific requests to the Town for those records and to give the Town an opportunity to respond to those requests. The plaintiff did not provide any evidence of a request to the Town seeking those type of records. As she alleges in the petition and stated at the hearing her request was limited to "reports" maintained pursuant to the Ordinance. See Petition at ¶ 33. Thus, the Town has complied with that request.

To the extent that the plaintiff alleges that the Town has not responded to her "questions" to various Town officials, see Petition at ¶ 23, the Town is not obligated to answer "questions" pursuant to RSA 91-A. It is only obligated to produce records which it otherwise maintains in the ordinary course of its business. The petition and the plaintiff's argument at the hearing seems to suggest that the "reports" maintained by the Town pursuant to Ordinance do not contain all of the information she believes those reports should contain. The Town is not obligated to create records that do not otherwise exist. See RSA 91-A:4, VII; see also Brent v. Paquette, 132 N.H. 415, 436 (1989). If the plaintiff is seeking additional documentation beyond what is contained in the reports maintained by the Town pursuant to Ordinance, she must provide the Town with a request for those records.

[3] Finally, the Londonderry School Board requested to be dismissed as a party to this case. It asserted that it does not have any responsibility for compiling or maintaining the reports required by Ordinance The plaintiff alleges that because the impact fees benefit the School District they must have records which she is requesting. Again, however, because the plaintiff's request is limited to the reports maintained pursuant to Ordinance, the Londonderry School District is not a proper party to this action.

In her response to the Londonderry School District's request to be dismissed from the action, the plaintiff alleges that after reviewing the material produced by the Town following the February 23, 2012 hearing she learned that impact fees were transferred from the Town to the School District. The thrust of the plaintiff's response to the School District relates to her belief that the Town and School District are not properly accounting for the transfer and expenditure of monies collected through impact fees. An action filed pursuant to RSA 91-A is not the proper avenue to litigate whether the Town is handling impact fees correctly. Without a doubt, the plaintiff is entitled to public records to determine how the Town handles the impact fees. At this juncture, however, the plaintiff specifically told the Court at the February 23, 2012 hearing that she was only seeking "reports" maintained pursuant to Ordinance, not the supporting documentation. To the extent the plaintiff seeks supporting documentation of disbursements of impact fees to the School District and the expenditure of those fees by the School District, she must make that request and permit the School District or the Town to respond to that request. See RSA 91-A:4, IV (a person making a request for governmental records must "reasonably describe[]" the record requested and then the governmental body must either make the records immediately available or provide a response within 5 business days). Otherwise the litigation becomes a constant moving target to which the Town or School District cannot respond. Because the School District [4] does not have the reports requested by the plaintiff, the Londonderry School District's request to be dismissed from this action is granted.

At the hearing the plaintiff submitted a motion to amend the petition to seek additional documents not referenced in her original petition. In view of the liberal policy relating to motions to amend in this state, the Court has granted the motion to amend the petition. See RSA 514:9.

The amended petition seeks two additional categories of documents. First, the amended petition seeks documents reflecting legal advice provided to the Town regarding the implementation of the Town's impact fee ordinance. Second, the amended petition seeks documentation relating to the Town's periodic examination of its impact fee assessments. The Town filed a motion to dismiss the amended petition. With respect to the legal advice, the Town asserts that any documentation from counsel is exempt from disclosure pursuant to the attorney-client privilege. With respect to the periodic assessment of impact fees, the Town responded by inviting the petitioner to come to the Town offices to inspect the records. The Court will address each argument in turn.

RSA 91-A:2, I(b) excludes from the category of meetings which are open to the public consultation with legal counsel. "The Right-to-Know Law [also] specifically exempts from disclosure '[r]ecords pertaining to ... confidential ... information.'" Hampton Police Ass'n v. Town of Hampton, 162 N.H. 7, 14 (2011) (quoting RSA 91-A:5, IV). "The common law rule that confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction. The classic explication of the privilege is: Where legal advice ... is sought from a professional legal adviser in his capacity as such, the communications relating to [5] that purpose, made in confidence by the client, are at his instance permanently protected from disclosure ... unless the protection is waived by the client or his legal representatives." Id. at 15 (quotations and citations omitted). The New Hampshire Supreme Court has also recognized that the privilege applies to government entities which assert to privilege in order to avoid disclosure pursuant to RSA 91-A:5, IV. See id. at 16. However, "[i]n the context of the Right-to-Know Law, the party seeking nondisclosure of [records] because of the attorney-client privilege bears the burden of proof." Id.

The plaintiff asserts that letters to the Town from its lawyer are not protected by the attorney-client privilege if the advice was not given in contemplation of litigation. The plaintiff's interpretation of the privilege is too narrow. The attorney-client privilege protects communications between the client and its attorney "made for the purpose of facilitating the rendition of professional legal services to the client . . . ." N.H. R. Ev. 502(b); see ATV Watch v. N.H. Dep't of Transp., 161 N.H. 746, 761 (2011). Thus, the privilege is not limited to communications relating to pending or contemplated litigation.

Nonetheless, the plaintiff asserts in her Motion To Amend the petition that a portion of the letter from the Town's legal counsel was read in public meeting. Disclosure of confidential legal advice outside of the attorney-client relationship will destroy the privilege. See 2 Paul R. Rice, Attorney-Client Privilege in the United States § 9.27, at 70-71 (2d ed. 1999) ("The voluntary disclosure of privileged communications to third parties (who are not agents of either the attorney or the client) by the client or the client's authorized agent destroys both the communications' confidentiality and the privilege that is premised upon it."). The Town has not responded to this allegation. [6] Nonetheless, the plaintiff asserts that the Town only disclosed a portion of the letter during a public meeting. This does not necessarily mean that entire confidential communication contained in the letter is waived. "The scope of the waiver effected [by voluntary disclosure] is determined by the standard of fairness." Id. § 9.30, at 103. Cf. Livingston v. 18 Mile Point Drive, Ltd., 158 N.H. 619, 627 (2009) ("An 'at-issue' waiver of the attorney-client privilege is limited to circumstances in which the privilege-holder injects the privileged material itself into the case, such that the information is actually required for resolution of the issue.").

At this juncture, the Court cannot resolve the issue of the disclosure of referenced in the plaintiff's letter to the Town dated February 16, 2012, because neither party has addressed precisely what information was disclosed or what additional information was contained in the document from the Town's legal counsel. The Town must assert the privilege with specificity with respect to each document and submit the document to the Court for in camera review to determine whether the privilege applies. Hampton Police Ass'n, 162 N.H. at 16. The parties shall also submit additional pleadings supported by affidavits regarding the issue of waiver within 10 days of the notice of this Order. If there is a factual dispute regarding the scope of the waiver that cannot be resolved on the pleadings, the Court will order an additional evidentiary hearing to resolve the issue.

Although the plaintiff's February 16, 2012 letter, which is attached to her motion to amend, is not particularly clear, it appears to be requesting documents regarding confidential attorney-client communications which were not disclosed at a public meeting. With respect to any other documents, other than the letter specifically [7] referenced in the plaintiff's February 16 letter to the Town, the plaintiff has not established a basis for believing that the attorney-client privilege has been waived or is otherwise inapplicable. Accordingly, to the extent the plaintiff is requesting letters from the Town's legal counsel other than the specific letter addressed above, the plaintiff's request for those documents are denied because they are exempt from disclosure pursuant to RSA 91-A:5, IV.

The plaintiff's motion to amend also requests records relating to the Town's periodic examination of its impact fee assessments. On February 21, 2012, the Town Community Development Director responded to this request by letter inviting the plaintiff to set up a mutually convenient time and place "to inspect all records of the town subject to disclosure." The plaintiff does not address in either her motion to amend the petition or in her Notice to Court to Renew the Motion to Amend why the Town's response violates RSA 91-A. RSA 91-A:4, I, provides that "[e]very citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies . . . and to copy . . . the records or minutes so inspected." (Emphasis added). RSA 91-A:4, IV further provides the "[e]ach public body or agency shall . . . make available for inspection and copying any such governmental record within its files when such records are immediately available for such release." (Emphasis added). If the records are not available for immediate inspection and copying, the government must respond within five business days. The Town's February 21 letter complied with these statutory mandates. The Town is not required to automatically provide the plaintiff copies of any [8] documents. They are required to make the records available to her for inspection and to allow her to copy them. The plaintiff has not offered any argument as to why the Town's invitation to allow her to inspect the records relating to the regular updates regarding the impact fee assessments violated the Right-To-Know law. Accordingly, her motion for additional court order regarding these records is denied because the Town has not violated the law.

Finally, the plaintiff has requested attorney's fees against both the Town and the School District. Because this Court granted the School District's motion to dismiss the claims against it, there is no basis to consider the plaintiff's request to assess attorney's fees against the School District. Because the plaintiff's lawsuit was not necessary to obtain records from the School District, an award of attorney's fees is not appropriate. See RSA 91-A:8, I. The School District's request for attorney's fees against the plaintiff, however, is also without merit. The Court may only award attorney's fees to a public body having to defend a lawsuit filed pursuant to RSA 91-A if the court makes an affirmative finding that the lawsuit is "in bad faith, frivolous, unjust, vexatious, wanton, or oppressive." No such finding is warranted in this case.

The only remaining issue is the plaintiff's request for attorney's fees against the Town. The plaintiff contends that she is entitled to attorney's fees because the Town did not disclose nearly 1000 pages of records until after the hearing. The Town asserts that it has previously disclosed all of these documents to the plaintiff but did so again following the hearing.

"To award attorney's fees, the trial court must find that the petitioner's lawsuit was necessary to make the requested information available and that [the public body] [9] knew or should have known that its conduct violated the statute." Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 558 (2002) (quotation omitted). In this case, the lack of disclosure to the plaintiff appears to be the result of some miscommunication or other unintentional error. At the hearing, counsel for the Town proffered a witness who was prepared to testify that the witness had all of the documents delivered to the plaintiff before the litigation in this case. The plaintiff avers that she did not receive 976 pages of documents which were given to her by the Town following the hearing. While the Court cannot definitively resolve the disconnect between these two versions, it is likely that the records were produced by the Town but for some unexplained reason the plaintiff did not receive them. In any event, there is no evidence in this case that the Town "knew or should have known that its conduct violated the statute." Id. Accordingly, there is no basis to award the plaintiff attorney's fees.


   3/20/2012       /s/   

DATEN. William Delker

Presiding Justice