Ferraro v. Town of Exeter, Doc. No. 218-2013-CV-829 (Rockingham Super. Ct., September 6, 2013) (McHugh, J.)

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The State of New Hampshire







On July 31, 2013 the plaintiff filed a Petition for Summary Judgment in a pro se capacity. The body of his Petition references RSA 91-A, the so-called Right to Know Law, and concludes that the defendant violated its provisions for which he seeks relief in the form of the production of the requested documents, reimbursement for court costs, imposition of monetary penalties, reimbursement by the Town Manager, Russell Dean to the Town of Exeter for having to defend Mr. Dean as a result of his failure to abide by the law, and lastly that the various officials of the Town of Exeter be ordered to undergo appropriate remedial training so that in the future they will be able to carry out legitimate right to know requests made by members of the general public.

The substance of the plaintiff's complaint is as follows. He alleges that on July 21, 2013 he filed a request with Russell Dean for certain government records pertaining to the cost and operation of the solar photovoltaic cell array installed by the Exeter Department of Public Works. Because these records were not protected from distribution by any provision of the law, the plaintiff concludes that the Town was required to provide him with the information sought within five business days pursuant to RSA 91-A:4, IV. When the information requested was not provided within five business days the plaintiff filed the within Petition in this Court.

A hearing was held in this matter on September 4, 2013. Both parties appeared. [2] The defendant was represented by counsel who just prior to the hearing filed a formal Answer to the plaintiff's Petition. Both parties made offers of proof to the Court in support of their respective positions on the issues raised in the plaintiff's Petition.

The defendant does not dispute the fact that on Sunday, July 21, 2013 via email the plaintiff sent Town Manager, Russell Dean a request for certain information regarding a Town project known as the solar photovoltaic cell array. The plaintiff is a resident of the Town of Exeter and he also has served for the past two years as one of the Town's five elected selectmen. In his request for information to Mr. Dean he did not indicate whether or not he was making that request as a private citizen or as a member of the Board of Selectmen. He did however send a copy of the request to one of the Board's members but not to the other three.

When the request was received by Mr. Dean on Monday, July 22, 2013, he interpreted it as being a request by one of his employers, a Board of Selectmen member, not from a private citizen. Apparently it is not unusual for one or more board members over time to make certain formal requests of the Town Manager. While that fact does not absolve Mr. Dean from producing the requested information, in his mind the immediacy of the request was not apparent. Because the plaintiff did not specifically state that the request was made under our Right to Know Law, and because Mr. Ferraro had made requests of him in the past as a Board of Selectmen member, the Court finds that Mr. Dean's conclusion that the request was not a right to know request was reasonable.

The plaintiff correctly takes the position that by electing to be a member of the Board of Selectmen, he does not give up his rights as an ordinary citizen of the Town. However when a municipal official has no reason to believe that a request made was a [3] right to know request, then the requirement regarding production of the sought after documents in five business days does not apply. While it is true as the plaintiff points out that RSA 91-A does not require the requesting party to specifically indicate that the information sought is being sought under the Right to Know Law, the defendant reports that had that information been included then its response would have been quicker. Mr. Dean would have been aware of his obligation to produce the information within five business days or, as in this case, inform the plaintiff that additional time was necessary for the production because of the specific nature of the request. Note that the plaintiff admitted to the Court that the information requested was general information which he had an interest in; it was not a subject matter that was likely to come before the Board of Selectmen at its next regular meeting. In fact the plaintiff admitted that had Mr. Dean within five business days informed him that additional time was necessary for the production of the information, he would have understood and agreed to wait although his belief was that the requested documents could have reproduced rather quickly.

Apparently there was no follow-up dialogue between the plaintiff and any member of the defendant about his request until one week after the request was received by the Town. There was a regularly scheduled Board of Selectmen meeting held during the evening of July 29, 2013. After that meeting there was, in the words of the defendant, an angry outburst by the plaintiff directed at Mr. Dean during the course of which for the first time he claimed that his request for information was made under RSA 91-A. Selectwoman Gilman, present during the confrontation, informed the plaintiff that she was in the process of gathering the information desired and would have it to him as soon as possible. Within two days of Mr. Dean's knowledge that the request of the plaintiff was under RSA 91-A, he notified the plaintiff under the law that he needed time [4] to gather the information requested. That was a timely response under RSA 91-A.

It was clear to the Court during the hearing that this dispute between the plaintiff and the Town regarding an alleged violation of RSA 91-A was not an isolated incident. In fact the other four current members of the Board of Selectmen attended the hearing and all sided with the position taken by the Town that there was no violation of the Right to Know Law. The plaintiff conceded that the Board was "fractured" and further that he has had issues in the past with Mr. Dean's performance as Town Manager.

The Town argues that by filing the request on a Sunday and by not making it clear that the request was made under the Right to Know Law, the plaintiff hoped to "trap" the defendant into missing the statutory deadline for production of documents under RSA 91-A. The defendant further points out that when the plaintiff was informed by a fellow selectmen, Julie Gilman, on July 29, 2013, that the information requested was being collected, instead of giving her the courtesy of a reasonable time to produce the documents, he elected during the morning of July 31, 2013, just two days later, to file the within Petition. The defendant also points out that while Mr. Ferraro may not have received Mr. Dean's e-mail regarding the progress of obtaining the requested documents before the Petition was filed, he did receive that response within two hours after the Petition was filed and could have easily dismissed it before either party was required to incur costs.

The plaintiff represented at the hearing that even now, some six weeks after the request was made, he has not received all of the information sought. Yet he has not elected to notify any member of the defendant as to what information he believes was not produced.

Upon review of the law as well as the pleadings filed by the parties and after [5] considering their oral argument at the hearing, the Court finds and rules that there was no violation of RSA 91-A committed by the defendant in this case. Russell Dean reasonably concluded that the request for information was made by his employer, Francis Ferraro, in his capacity as a member of the Board of Selectmen. Thus in Mr. Dean's mind, and in the mind of the Town of Exeter, the requirement that the information be produced within five business days, a requirement that is reserved exclusively for RSA 91-A, was not readily apparent. Therefore the delay in getting the plaintiff that information was not a violation of the Right to Know Law. Once it became clear to Mr. Dean that the request was an RSA 91-A request, he followed the statutory timeline by providing a detailed response to the request within two days of his knowledge of the nature of that request.

Because the Court has not found a violation of the Right to Know Law on the part of the defendant, all of the plaintiff's requests for relief are denied. Although Mr. Ferraro correctly points out that motive pays no part with respect to the obligation of the municipality to produce requested documents, it may explain the disconnect between the plaintiff and defendant with respect to in what capacity the request for information was made.

The defendant has asked for an order requiring the plaintiff to reimburse it for having to defend what it claims to be a frivolous action. It is on this limited issue, the Town argues, that the Court can consider bad faith or ill will on the part of the plaintiff. While the Court agrees it can consider these facts it cannot find on the basis of the evidence submitted more probably than not that the plaintiff acted in bad faith.

Accordingly, no order for the payment of attorney fees is made.

[6] 2013-CV-829
Francis A. Ferraro v Town of Exeter
Final Order
Page 6 of 6

So Ordered.

   September 6, 2012       /s/   

Date Kenneth R. McHugh

Presiding Justice