Scott v. City of Dover, Doc. No. 219-2005-E-170 (Strafford Super. Ct., November 29, 2005) (Fauver, J.)




David Scott


City of Dover

Docket No. 05-E-170


On October 11, 2005, this court (Fauver, J.) granted the plaintiffs Right-to-Know Petition requesting the City of Dover ("the City") to release the names and salaries of all City employees earning over $60,000 annually. The petitioner now moves the court to approve his request for the reasonable attorney's fees and costs that he incurred while pursuing that petition. The City objects, aguing it did not know nor should it have known that its refusal to release the names of its employees violated RSA 91-A. After review of the parties' arguments and the applicable law, the court finds and rules as follows.

In the court order issued on October 11, 2005, the court stated, in pertinent part:

Even if disclosing the names of the respondent's employees did invoke the privacy rights of the respondent's employees, the disclosure of this information serves the public purpose maintaining an accountable government. See Union Leader Corp. v. City of Nashua, 141 N.H. 473, 476 (1996) (quotations and citations omitted). Merely providing the salaries and the positions of these individuals does not satisfy the public's right to have "full disclosure of the mode and manner of public expenditures." Mans v. Lebanon Sch. Bd., 112 N.H. 160, 162, 164 (1972)]. This court accepts that the safety and effectiveness of certain undercover law enforcement personnel may be jeopardized if the names of these individuals were released. Beyond these few, specific individuals, however, the respondent has not demonstrated that the City, itself, has an interest in nondisclosure. Thus, even if this court assumes the respondent's employees have a privacy interest in the nondisclosure of their names, and then balances the privacy interests of the respondent's employees in having their names withheld from the public [2] against the interest of the public in maintaining an open and accountable government, the court finds in favor of releasing the information the petitioner seeks.

(Doc. no. 9, Order at 5-6).

The petitioner contends the court should award him attorney's fees because the City had no reasonable basis to refuse to release the names of its employees who earn over $60,000 on an annual basis. The petitioner also contends, because the City did not comply with the requirements of RSA 91-A, the petitioner was forced to retain counsel and pay legal costs in order to obtain information from the City, which is freely and routinely released by other public bodies in this State.

The City avers it should not be ordered to pay the petitioner's attorney's fees because the City believed it had no legal duty to release the requested information. According to the City, the City refused to fulfill the petitioner's request for information in the exact format requested because of the implicit privacy interests at stake.

The applicable portion of RSA 91-A:8 (I) provides:

If any body or agency or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a public record . . . such body, agency, or person shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter provided that the court finds that such lawsuit was necessary in order to make the information available to 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 a violation of this chapter . . . .

(2005). The word "shall in the statutory provision concerning attorney's fees . . . acts as a mandate if the necessary findings to support an award of attorney's fees are made." N.H. Challenge v. Comm'r, N.H. Dep't of Educ., 142 N.H. 246, 250 (1997) (citation omitted). From this statute, it follows that an award of attorney's fees would be proper only if the City knew or should have known the petitioner had a right to know the names of the City employees who earn over $60,000 annually. See Voelbel v. Town of Bridgewater, 140 N.H. 446, 448 (1995).

In Mans v. Lebanon Sch. Bd., 112 N.H. 160, 162-163 (1972), the New Hampshire Supreme Court dealt with a Right-to-Know request regarding the disclosure of the names of public employees. [3] In making its decision, the Mans Court balanced the privacy interests of the employees against the public's right to know the requested information. See id. at 164. The Court then specifically 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).

In the case at bar, the court finds the City should have known it is was required to disclose the requested information. If the City had reviewed the case law interpreting the Right-to-Know disclosure requirements, the City would have discovered the requested information was information the terms of RSA 91-A requires to be disclosed to the public.

Accordingly, the petitioner's motion to award reasonable attorney's fees and costs is GRANTED. The City is ordered to pay the petitioner's reasonable attorney's fees and costs in the amount of $4,990.00, within 30 days of receiving the Clerk's notice of this order.

So Ordered.

11/29/05    /s/   

DatePeter H. Fauver

Presiding Justice