Dover Citizens for Sound Government v. City of Dover, Doc. No. 219-2004-E-173 (Strafford Super. Ct., October 6, 2004) (Mohl, J.)




Dover Citizens for Sound Government


City of Dover

Docket No.: 04-E-173


The plaintiff, Dover Citizens for Sound Government ("DCSG"), a New Hampshire not-for-profit corporation in Dover, New Hampshire, brought this suit against the City of Dover ("the City") on August 27, 2004 under RSA 91-A:7, the New Hampshire Right-to-Know Law. See RSA 91-A:7 (2004). DCSG concedes the City has produced some documents for DCSG's review, but argues the City's document disclosures have been incomplete or inconsistent. (See Def.'s Obj. to Mot. to Dismiss, doc. no. 8). Thus, DCSG seeks to have the City release documents detailing the total cost of the City Manager to the taxpayers of Dover, including benefits and reimbursed expenses, for the years 1998 and 2003. The City contends it disclosed the requested materials to DCSG in a timely manner and, although DCSG has not taken the opportunity to review the documents, it gave DCSG access to the additional applicable materials. The court held a hearing on the merits on September 16, 2004. After reviewing the parties' arguments and the applicable law, the court finds and rules as follows.

I. Factual Information

On or about May 18, 2004, David Scott ("Scott") personally met with Jeffery Harrington, the City's Finance Director, and requested a release of the total annual cost of the City Manager [2] and the other department heads on the City payroll. Scott attended Harvard Business School and held the position of Chief Financial Officer throughout the 1980s and 1990s for a large corporation and then for a number of smaller corporations. Scott currently runs his own small company and is a citizen and taxpayer of the City and a board member of DCSG. While Scott is not a certified public accountant, Scott testified he has a substantial amount of knowledge and experience in accounting and finance practices.

At their mid-May meeting, the Finance Director directed Scott to Mike Joyal, the Assistant City Manager, and informed Scott that the Assistant City Manager handles personnel matters. About two days later, Scott went the office of the Assistant City Manager and requested the same information he had requested from the Finance Director. The Assistant City Manager told Scott that he had the requested data and would send it to Scott within a few days. Around May 24, 2004, Scott returned to the office of the Assistant City Manager and personally delivered a hand-written letter to him. This letter requested salary data on the City Manager, the Assistant City Manager, and various department heads and other employees, for the years 1998 and 2003. Specifically, Scott's letter asked for the IRS, W-2 summaries of these various individuals. DCSG asserts the Assistant City Manager said in response that he had to "clear the release of those documents with the City Attomey." (See Pet. For Req. for Discl. of Pub. Docs., doc. no. 1).

Around May 28, 2004, Scott returned to the office of the Assistant City Manager with a type-written letter confirming his request. DCSG and City dispute whether the Assistant City Manager responded to Scott's type-written request. DCSG claims the City did not respond to Scott's requests until June 7, 2004. The City claims on May 28, 2004, the Assistant City Manager faxed a response letter to Scott, explaining that the IRS rules may prohibit disclosure of [3] a pay itemization. The City also claims, later that same day, the Assistant City Manager faxed annual budget reports and a seventeen page response, which depicted itemized salary budget and actual expenditure amounts for each of the City's departments for the fiscal years 1998 and 2003. (See Def.'s Mot. to Dismiss, doc. no. 6) The City also contends that on June 1, 2004, Mr. Scott faxed a letter back to the Assistant City Manager requesting further budget itemization sheets for fiscal year 1998, and that the Assistant City Manager met his request by re-faxing annual budget reports for fiscal year 1998. DCSG did not mention either correspondence in its motions to the court or during the hearing.

Both parties agree that on June 7, 2004, the City received a number of worksheet templates and a petition from Scott and the DCSG. This petition sought detailed payroll and expense reimbursement data on the City Manager and various department heads for fiscal years 1998 and 2003. At the hearing, Scott testified he provided this template to the City so that the City would separate out the data for each city employee for whom the information was sought. Scott believed if the City parsed the infomation according to the template format, he could better ascertain how much the City specifically compensated the city manager and each department head.

On June 11, 2004 the City sent Scott a letter acknowledging the receipt of his petition and indicating it would send a followup response. On June 25, 2004, the City Attorney, George Wattendorf, mailed a response to Scott, informing him that he could pick-up the data on the entire budget for fiscal years 1998 and 2004 in the City Clerk's Office. DCSG claims, while the information provided by the City Attorney was 895 pages long, it only contained general information for the proposed budgets of 1999 and 2004. Both parties agree the June 25th letter from the City Attorney indicated that the DCSG could contact the City Attorney for it cost [4] estimate if DCSG was willing to pay a fee to have the Finance Department perform the requested analysis.

On July 12 and 13, 2004, DCSG sent requests to Paul Beecher, the City Manager, seeking, under the State Freedom of Information Act, all of his financial data, "includ[ing] but not [] limited to," gross monthly salary, expense reimbursements, health care payments, and any sick or vacation pay for the calendar years 1998 and 2003. (See Def.'s Ex. D-1) In a follow-up letter to the City Manager on July 20th, DCSG expressed disappointment in the City's failure to respond to its requests and cited RSA 91-A:4, IV, claiming the citizens of Dover should not be required to pay any additional costs when they ask the City for copies public information. (See Def.'s Ex. D-3)

On July 27, 2004, when Scott met with the City Manager at the City Manager's office, Scott received a memorandum from the City's Legal Division, which listed all the gross salaries of the department heads and managers for the years 1998 and 2003 and included tables and charts listing health plan and employee retirement costs. The memorandum informed Mr. Scott that the City would have to do in-depth research to compile a list of the expense reimbursement data in the format requested, and that this was a very lengthy task for which City staff was not available. (See Def.'s Ex. D-4) The memorandum also directed Scott to make an appointment with Linda Ross at the Accounting Office of the City's Finance Department if he wanted to view the requested expense reimbursement data.

On August 6, 2004, DCSG, sent a letter to the City requesting the same financial data for the City Manager as Scott requested in the letters he sent on July 13th and 14th but, this time, he requested data for the years 1999, 2000, 2001, and 2002. On August 13, 2004, the City responded to this request with a list of the gross salary for the City Manager for each individual [5] year, 1999 through 2002. This letter stated that the type of insurance plan in which an employee chose to partake was private, and again directed Scott to make an appointment with the Accounting Office of the City's Finance Department if he wanted to view the requested expense reimbursement data for the years 1999 through 2002. At the hearing, Scott stated he did not make an appointment with the Accounting Office to view the records because he believed that breaking down a list of expenses according to each employee should have been the City's standard procedure.

II. The Right-To-Know-Law

The legislature created the Right-To-Know Law 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 (2004); see Liberty Union v. City of Manchester, 149 N.H. 437, 438 (2003). The Right-to-Know Law "helps further our State Constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted." Goode v. N.H. Legis. Budget Assistant, 148 N.H. 551, 553 (2002). The court resolves questions under the Right-to-Know Law "with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents." Id. at 554. Therefore, the court construes "provisions favoring disclosure broadly, while construing exemptions narrowly." Id.

DCSG concedes the City provided some of the requested information, but DCSG takes issue with the format in which the City provided the information, with the City's inability to breakdown the expense reimbursements by employee and per year, and with the City's allegedly untimely and incomplete disclosure of all the requested information. DCSG alleges that the City [6] may have re-arranged financial data or disclosed incorrect salary information to alternative sources in order to hide substandard accounting practices.

The City counters that it provided, in good faith and to the best of its accounting abilities, the information requested by Scott on behalf of DCSG. For the hearing, the City provided the court with documentation of its repeated attempts to meet the requests of DCSG during its various meetings and mail and fax correspondences with Scott. Further, the City of Dover Finance Director testified about the process with which the City records and files its expense reimbursements, and stated that, in order to meet DCSG's demands, the City would have to allocate days or weeks of employee labor to ascertain such information. The Finance Director indicated that, after Scott asked to view the expense reimbursement information in a specific format, the City called an outside auditor for a quote on the cost of perusing the City expense reports and providing the information in the requested format. The Finance Director testified that the outside auditor quoted the City five to seven thousand dollars to perform this task. Finally, the City agrees that, to the best of its abilities, it should provide DCSG with most of the requested information. The City asserts, however, that to breakdown the number of sick and vacation days the City Manager used during each calendar year, and to provide details about the benefits package the City Manager has chosen, falls within Right-To-Know Law's narrow exemption and would invade the City Manager's privacy. The City also contends that it records its information based on a fiscal year calendar, and therefore, cannot provide DCSG with its requested calendar year computations.

A public body does not violate the Right-to-Know Law if it requires a citizen to schedule a mutually convenient time with the public body to examine public records. Brent v. Paquette, 132 N.H. 415, 423 (1989). Requiring a citizen to schedule an appointment to view public [7] records, in some cases, helps public offices run more efficiently and helps ensure citizens they will view the records at a specific, scheduled time rather than wait an indeterminable amount of time for "the keepers of the records" to help them. Id. at 424. If a public body is unable to make the records available for immediate inspection, the public body must produce the document within five days of the citizen's request, or deny the request in writing with reasons. Id. at 424-425 (citing RSA 91-A:4, IV (1988)). "The [Right-To-Know] statute does not require public officials to retrieve and compile into a list random information gathered from numerous documents, if a list of this information does not already exist." Id. at 426.

In Gallagher v. Town of Windham, the plaintiff claimed the Town of Windham ("the Town") denied her access to public records when the Town removed proposed industrial park plans from its office without making copies of these plans for the plaintiff to view. See 121 N.H. 156, 158 (1981). The Gallagher Court addressed the issue of whether the provisions of the Right-To-Know Law required the Town to make copies of the proposed industrial park plans for the plaintiff. Id. In its decision, the Court "interpret[ed] . . . what the statute require[s]" and factored in the significant "expense and labor involved in preparing copies of the plans . . . on the equipment available to the town's employees . . . ." Id. (quotations omitted).

After reviewing the plaintiff's requests, the Gallagher Court held the Town did not violate the Right-to-Know Law because the language of the RSA 91-A:4 does not impose "an absolute duty on towns . . . to provide copies of public records to citizens." Id. Instead, the statute only requires that "public records be made available to individual members of the public for their inspection and reproduction" because the statute, which is substantively the same now as it was in 1981, only provides citizens with the "right to inspect all public records and to make memoranda, abstracts, photographic or photostatic copies . . . ." Id. (emphasis in original) [8] (quoting RSA 91-A:4 (1972)). After acknowledging municipalities are representatives of the citizenry and "should assist the members of the community in obtaining public documents whenever it is reasonable to do so," the Court found it was not mandatory, under the Right-To-Know Law, to provide citizens with copies of public documents. Id. Thus, in Gallagher, the Town complied with the Right-to-Know Law by making the plans available to the plaintiff to copy for her own use. Id.

The facts of this case are similar to those facts previously articulated from the Brent and Gallagher cases. When Scott, on behalf of DCSG, requested annual expense reimbursement compilations for specific employees, the City informed him that he could make an appointment to come into the City's accounting office, view the records, and copy them himself. The City also offered to hire someone to compute the requested information if DCSG was willing to pay for the cost of completing the task. As the Finance Director testified, to complete this task for just one employee's data, the City would have to expend a substantial amount of labor and financial resources. Although the requested data was not in the format requested by Scott, the City offered Scott or any member of DCSG the opportunity to make an appointment and come into the City's accounting office to review the requested data. Ultimately, Scott chose not to pursue the City's offer.

This court has no reason to believe the requested data does not exist. Thus, the Right-to-Know Law does not require the City to compile and format the requested data at its own expense nor does it require the City to compute the requested data according to calendar year as opposed to fiscal year. See Gallagher, 121 N.H. 156; see also Brent, 132 N.H. 415. The Right-To-Know Law merely requires the City to provide the public with access to public information, which the City has suitably and properly done in this case.

[9] "With a View to providing [the public with] the utmost information," a court should narrowly interpret the Right-To-Know Law exemptions, which are provisions that specify what a public body need not disclose. Mans v. Lebanon Sch. Bd., 112 N.H. 160n, 162-163 (1972) (citation omitted). In Mans, the Court devised a balancing test to determine if public records are confidential, or, in other words, to determine if disclosing these records would constitute "an invasion of privacy." See id. at 164.; see also RSA 91-A:5, IV (1988). To determine if the requested records are confidential and consequently exempted from the Right-To-Know Law disclosure requirements, a court must balance "the benefits of disclosure against the benefits of nondisclosure." Mans, 112 N.H. at 164. The Mans Court found that disclosing the salaries of the teachers in the school district to the general public would not constitute an invasion of privacy, because this information was not "intimate details . . . the disclosure of which might harm the individual." Id. at 164 (citation omitted).

DCSG asked the City to breakdown the City Manager's gross pay into various categories to indicate how much of his pay was allocated to each category. Two of these categories included the City Manager's health benefits program and the compensation he receives for unused sick and vacation days. The court agrees with DCSG that the public has right to know the City Manager's gross salary. In contrast to the facts of the Mans case, however, this case involves not only a request for disclosure of the City Manager's gross salary, but also a request, essentially, for what health care plan the City Manager has chosen, how much it costs, and how many sick and vacation days he decided to, or needed to, take each year. The disclosure of this information would not give the public any more information than it already has; the City has already disclosed how much money the City Manager makes annually. However, disclosing this information could divulge to the public whether if the City Manager has any health problems or [10] how the City Manager has allocated his personal time. Therefore, releasing this information to DCSG and the public falls into the category "invasion of privacy" and thus, should be considered confidential and within the narrow exemptions of the Right-To-Know Law. See Mans, 112 N.H. at 162-163.

Accordingly, by allowing DCSG access to the public expense reports, by providing the information requested by DCSG in the format available to the City, and by releasing the annual gross salary amounts of the City Manager and of various department heads, the City has satisfactorily complied with the Right-To-Know Law requirements.

The fact that the City does not keep its financial records in the format that Scott suggests it should, is not a basis for relief under RSA 91-A. Indeed, Scott testified that he believes there are accounting flaws in how the City maintains its financial records. While that may, or may not, be so, it is not within the court's jurisdiction to decide, or even enter, what can only be described as a political debate for the citizens of the City of Dover.

Accordingly, the petition under RSA 91-A is DENIED.

So Ordered.

10/6/2004    /s/   

DateBruce E. Mohl

Presiding Justice