Heighton v. Town of Milton, Doc. No. 219-2012-CV-408 (Strafford Super. Ct., November 26, 2012) (Tucker, J.)


The State of New Hampshire


Jim Heighton d/b/a Sterling Consulting


Town of Milton

No. 219-2012-cv-408


Jim Heighton d/b/a Sterling Consulting, brings a claim against the Town of Milton, seeking injunctive relief and attorney's fees under RSA 91-A (Supp. 2011). He contends the Town violated the law in a variety of ways. Following an evidentiary hearing and for the reasons that follow, the petition is granted in part and denied in part.

Heighton asserts that statutory violations occurred in four different settings. The order addresses each claim separately.

1. Selectboard Meetings of April 16 and April 30, 2012


On May 11, 2012, Heighton sent an email request for "audio availability and cost for the April 16th and April 30th 2012 selectboard meetings." Exhibit 1 (May 31, 2012 Email from "Jim Heighton" to "Doreen"). "Doreen" was once the secretary to the town [2] selectboard, but she worked for the town highway department when Heighton sent his email. The evidence suggests Doreen forwarded Heighton's email to the Milton town administrator, Anthony Mincu (Exhibit 1 [June 4, 2012 Email from Doreen to Heighton]), but Mincu testified he had no memory of receiving it and made no response.

Heighton repeated his request by email on May 31, 2012. Doreen's reply on June 4, 2012, was that she was "forwarding your request again to the Town Administrator, Tony Mincu, as I no longer work for the Selectmen." Id. Doreen noted the April 16 and April 30 minutes were approved and posted on the town website. Id. On June 4, 2012, Heighton sent an email to town administrator Mincu directly. See Exhibit 2 (Email from "Jim Heighton" to "Tony Mincu"). Mincu testified that this email was his first notice of Heighton's interest in the audio recordings of the April 2012 selectboard meetings.

Mincu responded to Heighton's email on June 5, 2012. He advised Heighton that "We do not maintain audio recordings as a rule. They are only available for the note takers convenience and then are no longer kept beyond the period of when the draft minutes are approved." Exhibit 2 (Email from Mincu to Heighton). Heighton testified that he read this to say he could not obtain a copy of the recording, but Mincu said he understood audio recordings of selectboard meetings were available for public inspection until they were erased, and that erasure did not occur until the draft minutes from the selectboard meeting were approved. Since the selectboard usually approved the minutes within two weeks and posted the minutes on the town website within 5 days of approval, he assumed the recordings from meetings held in April were already [3] destroyed. As it turned out, the recording for the April 16 meeting was misplaced and not erased, so it was available and has since been offered to Heighton for review and copying. In any event, Mincu insisted he did not intend to convey to Heighton that Heighton could not listen to audio recordings if the Town still had them.


To the extent there was a delay in the town administrator making a direct reply to Heighton's email requests for the audio recordings, the delay is attributable to Heighton sending his first request to "Doreen," in the mistaken belief that she still worked for the selectboard. While Doreen indicates she forwarded Heighton's email to the town administrator, the administrator said he did not see it. Once Heighton sent his inquiry to the town administrator directly, he received a prompt response.

The reply from the administrator is somewhat ambiguous and could be read to say the audio recordings are off-limits to the public. However, the context in which it was written gives it a different meaning. The administrator wrote the email with the understanding that the audio recordings of selectboard meetings were erased routinely with the publication of the final minutes. The Town was not required to disclose audio recordings used to compile meeting minutes after the final minutes were approved. Brent v. Paquette, 132 N.H. 415, 420 (1989). See RSA 91-A:4, III-b. The final minutes were on file at the town hall, and as the email from Doreen indicates, they were posted also on the town's website.

In light of the foregoing, the court finds no violation of RSA 91-A as it pertains to the request for audio recordings of the April 2012 selectboard meetings.

[4] 2. Planning Board Meetings of May 1, 2012 and July 17, 2012


Heighton makes two claims with respect to meetings of the Town Planning Board. First, he alleges that on May 4, 2012, he asked for a copy of the draft minutes from the May 1 planning board meeting. He says he was told he could read the minutes, but not make a copy of them. A copy of the same draft minutes was mailed to an attorney who made a subsequent request for them on Heighton's behalf.

Heighton testified town officials informed him it was town policy that minutes could not be copied while they were in draft form. A town official confirmed the policy, which permits inspection of draft minutes, but not their copying. The practice arose from an event involving what the Town viewed as a misuse of draft minutes by a newspaper. The draft minutes are, however, posted and available for public inspection at the town hall.

Heighton's second claim is that even though the minutes from the July 17, 2012 planning board meeting were approved on August 6, 2012, they were not posted on the town's website until September 20, 2012. The town employee responsible for posting the minutes to the website testified she typically did so on the day after the Board approved them. However, she had surgery on August 7, 2012, and did not realize the minutes were not on the website until shortly before the hearing in this case. Still, the approved minutes were available for inspection in a book maintained at the town hall.

[5] Discussion

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 inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5. In this section, "to copy" means the reproduction of original records by whatever method, including but not limited to photography, photostatic copy, printing, or electronic or tape recording.

Since the Town made draft minutes of its planning board meetings available for inspection by the public, and mailed an attorney a copy of the draft minutes sought by Heighton, Heighton should have been permitted to copy the draft minutes as well as read them. The Town violated the statute with its prohibition on copying.1

With respect to the delay in posting the July 17 minutes to the town website, the statute only requires that the minutes be available for inspection "on the regular business premises" of the public body. Heighton does not contend the July planning board minutes were unavailable to him at the town hall. Accordingly, the court finds the Town did not violate RSA 91-A when it failed inadvertently to make a prompt website posting of the same minutes.

[6] 3. Tax Card


Heighton asked the Town for a copy of the new tax card for an entity known as MTJ Realty Trust. He says the Town violated RSA 91-A in not responding to his request.

Kathy Wallingford is the town's assessing clerk. She agreed that Heighton requested the card in an email sent in July 2012. Since the new tax card was not then complete, she consulted with the town assessor and the town's legal counsel. It was determined there was no requirement to make the tax card available until it was in final form, which did not occur until August 27, 2012. At that time, the card was sent to the client of Heighton on whose behalf the Town understood he had made the request. But the card was not sent to Heighton and Wallingford admitted that due to confusion or oversight, no one from the Town explained the delay or acknowledged Heighton's request.


The tax card was arguably exempt from disclosure until it was in final form. See RSA 91-A:5, IX. But RSA 91-A:4, IV required the Town to at least acknowledge the request and provide basic information to Heighton about why it would not be provided at that time. In not doing so, the Town violated the statute.

[7] 4. Copying Charges


Heighton sought a copy of land sales as reflected in town records. According to Wallingford, she understood Heighton wanted the information organized by location - that is, by street address and date. See Exhibit A. The Town keeps sales records by map and lot number rather than by street. Therefore, Wallingford told Heighton she would have to create a separate report, which would take her up to one and one-half hours to generate. The charge, she told him, would be fifty dollars. Heighton did not dispute that he asked for the information "by location," but he did not recall speaking with Wallingford about the format. He maintained that if he did speak with her, he would have told her to provide the information in whatever form it was available.


There appears to have been an honest misunderstanding of what information Heighton sought. I credit the testimony of Wallingford on this issue, and accept the Town's position that it responded to the request based on RSA 91-A:4, VII, which excused it from "assembl[ing] information into a form in which it is not already kept or reported."

The proposal to charge a $50.00 fee to reassemble the information into the format Wallingford thought Heighton wanted served, in effect, as a denial of the request as the Town understood it. Since the reason for denying the request was valid, the court need not decide whether the proposed fee was reasonable.

[8] 5. Remedies

a. Injunctive relief

The court finds that the Town is likely to abide by the ruling that members of the public must be permitted to Copy draft minutes. Town officials acknowledged their awareness of the requirement that they respond to requests to inspect documents and the court accepts their representations that the failure to do so in the instances cited was due to the particular circumstances under which the requests were made. Accordingly, the request for injunctive relief is denied.

b. Attorney's Fees

The court finds the lawsuit was necessary in order to make the draft planning board minutes available for copying. See RSA 91-A:8, I. Therefore, Heighton is awarded his reasonable attorney's fees as they relate to that specific issue. The parties shall attempt to agree on what fee is reasonable under the circumstances. In the absence of agreement, Heighton may submit a properly supported motion for fees, with the Town having 10 days from receipt of the motion to file an objection.

c. Costs

Heighton is awarded reasonable costs, which shall be determined by the clerk of court.

[9] 6. Requests for Findings of Fact and Rulings of Law

The order describes the findings of fact and rulings of law on which the decision is based. Therefore, the court has not addressed the separate findings and rulings proposed by the parties. See Geiss v. Barassa, 140 N.H. 629, 632-33 (1996).


Date: November 26, 2012    /s/   

Brian T. Tucker

Presiding Justice

1 The parties disagree over whether the Town was required to do as Heighton requested and mail the documents to him, electronically or otherwise. However, the issue with respect to each claim revolves around whether Heighton was entitled to a copy of the record in question. This is not a case in which the Town would have allowed Heighton to copy the record if he came to the town hall. Therefore, the court does not reach the issue of whether the Town was obligated to send the record to Heighton in lieu of requiring him to make a copy at the town building.