American Association of University Professors v. University System of New Hampshire, Doc. No. 219-2001-E-141 (Strafford Super. Ct., July 22, 2003) (Fauver, J.)




American Association of University Professors,
University of New Hampshire Chapter


University System of New Hampshire

Docket No.: 01-E-141


On August 10, 2001, the plaintiff, the American Association of University Professors, University of New Hampshire Chapter ("AAUP"), petitioned this court to compel the defendant, the University System of New Hampshire ("USNH") to release documents relating to a meeting held by the Special Audit Sub-Committee (Sub-Committee) on May 11, 1998. The plaintiff sought this relief pursuant to RSA 91-A, New Hampshire's Right-to-Know law. On January 23, 2003, the court denied the parties' cross-motions for summary judgment. On May 5, 2003, the court held a hearing on the merits of the case. Following a review of the parties' written and oral arguments, the court rules as follows.

The facts of this case have been elucidated in the court's Order on Motions for Summary Judgment, and will not be restated in this order, as all facts previously found based on the parties' pleadings were re-established by testimony and exhibits at the May 5, 2003 hearing. Accordingly, only additional facts found at the hearing, in so far as they are relevant to the court's discussions herein, will be recited in this order.

[2] AAUP moves to compel USNH to make the following documents available for public review pursuant to RSA Chapter 91-A: (1) the minutes of the Sub-Committee's May 11, 1998 meeting, (2) the hand-written notes taken by Elizabeth Bourbeau at the Sub-Committee's May 11, 1998 meeting, (3) the pre-final drafts of the August 20, 1998 report of the Sub-Committee, and (4) an audio recording, to the extent it still exists, of the Sub-Committee's May 11, 1998 meeting.1 USNH objects on the ground the meeting was closed to the public in conformity with requirements of RSA 91-A:3.

The Right-to-Know Act permits a government agency or body to close its sessions to the public under certain circumstances. See RSA 91-A:3. A government agency or body can only close a session to the public for the reasons enumerated in RSA 91-A:3, II. In addition, the government body or agency can only enter into a nonpublic session if it abides by the procedures specified in RSA 91-A:3, I.

In order to enter into the nonpublic session, a member of the government agency or body must make a motion for the same, specifying the RSA 91-A:3, II, exemption upon which he is relying. RSA 91-A:3, I(a) & (b). The motion must be seconded. RSA 91-A:3, I(a). The members of the government agency or body must then vote on the motion. RSA 91-A:3, I(b). The vote must "be by [3] roll call" and "require[s] the affirmative vote of the majority of the members present." RSA 91-A:3, I(b). "All discussions held and decisions made during nonpublic session shall be confined to the matters set out the in the motion." RSA 91-A:3, I(c).

Subsequent to a review of the evidence presented in this case, the court finds that the Sub-Committee failed to conform with the procedural requirements set forth in RSA 91-A:3, I. The publicly released minutes provide in pertinent part:

At 9:30 AM, a role[sic] call was taken and the Sub Committee voted to enter into non-public session to discuss items outlined by Trutee Georgopolous in accordance with RSA 91-A:3, II(c). UNH Campus Planner Victor D. Azzi was present during the non-public session.

The minutes do not show, and the defendant has failed to offer any proof, that a motion in support of a non-public session was made, or seconded. Accordingly, the defendant failed to conform with RSA 91-A:3, I(a). Moreover, in absence of evidence of the existence of such a motion, the Sub-Committee could not conform with RSA 91-A:3, I(c)'s requirement that "all discussions held and decisions made during the non-public session . . . be confined to matters set out in the motion."

The court further finds that the notice given for the May 11, 1998 meeting was deficient. While RSA 91-A does not explicitly require notice of a meeting to state whether said meeting will be public or non-public, where public and non-public sessions will be conducted at the same meeting, and the [4] conducting body is aware of this fact in advance, the notice of the meeting should state and generally identify the topic(s) on the agenda for each session. See Office of the Attorney General, State of New Hampshire, Right-to-Know Memorandum, at p. 4 (May 10, 1999). In the present case, the plaintiff propounded the following interrogatory with regard to the issue of the Sub-Committee's foreknowledge of the non-public nature of a portion of the May 11 meeting: "Was the non-public portion of the meetings of May 11, 1998 pre-planned?" (Emphasis added). The defendant's response to this interrogatory was "Yes." Accordingly, because the Sub-Committee was aware in advance that a portion of its May 11, 1998 meeting was going to be non-public and its notice of said meeting did not reflect that fact the notice is deemed deficient.

Consistent with the foregoing analysis, the court finds that the Sub-Committee did not satisfy the statutory prerequisites for the initiation of a non-public meeting pursuant to RSA 91-A:3. As a result, the May 11, 1998 meeting is deemed public in nature, and the plaintiff is entitled to a portion of the meeting minutes. After reviewing the meeting minutes, the court concludes based on certain matters discussed at the meeting the defendant correctly decided to invoke a non-public session pursuant RSA 91-A:3, II(c).2 Given that the purpose of 91-A:3, [5] II(c) is protect the reputation of any person who not a member of the discussing body, it would be contrary to the purpose of the statute to provide the public with meeting minutes inclusive of those certain matters based solely on the Sub-Committee's procedural errors. Accordingly, the court rules that the plaintiff is entitled to the May 11, 1998 meeting minutes with those portions of the text that involve matters which would likely affect adversely the reputation of any person, other than the Sub-Committee, redacted. A redacted copy will be available for inspection and duplication at such time as this order becomes final.

The court also rules that the plaintiff is not entitled as a matter of law to the notes taken by Elizabeth Bourbeau or the pre-final drafts of the August 20, 1998 report of the Sub-Committee. See Brent v. Paquette, 132 N.H. 415, 421 (1992) (holding in part that tapes made by record-keeper which do not have an official purpose are not part of public record). Accordingly, the plaintiff's request for Ms. Bourbeau's notes and the pre-final drafts of the Sub-Committee's report is DENIED. Moreover, the evidence presented at trial demonstrated to the court's satisfaction that an audio recording of the May 11, 1998 meeting was made, but has since been recorded over. As the defendant cannot produce what it does not have, the plaintiff's request for the audio recording is MOOT.

[6] This order constitutes the court's findings of fact and conclusions of law. Any of the parties' requests for findings and rulings not granted or denied herein, either expressly or by implication, are determined to be unnecessary for resolution in light of the decision rendered.


Dated: July 22, 2003    /s/   

Peter H. Fauver

Presiding Justice

1 The court notes that USNH has submitted document requests (1) and (2) to the court and they were sealed pursuant to an Order by this court (Fitzgerald, J.) on August 13, 2002.

2 In light of this finding, the court DENIES the plaintiff's request for attorney's fees and costs. See Voelbel v. Town of Bridgewater, 140 N.H. 446, 448 (1995) (the awarding of attorney's fees inappropriate where the trial court's findings did not support the conclusion that the body knew or should have known that the conduct engaged in was a violation).