Clay v. Dover School Board, Doc. No. 219-2013-CV-139 (Strafford Super. Ct., July 3, 2013) (Tucker, J.)




Jeffrey Thomas Clay


Dover, New Hampshire School Board
and School District, SAU 11

No. 219-2013-cv-139


Jeffrey Thomas Clay petitions for access to records of the Dover School Board to the extent allowed by the state Right to Know Law (RSA 91-A). As explained below, after a careful review of the materials submitted and the parties' arguments, the court finds it lacks information necessary to a final decision on all issues and defers a ruling on those matters. Otherwise, the petition is granted in part and denied in part. The school board's counterclaim for attorney's fees is denied.

I. The School Board's Procedural Arguments

The school board presents two grounds on which it says the petition may be dismissed without reaching the merits. Both are non-starters. First, the board contends that Mr. Clay has no standing to request the documents under RSA 91-A, because he "is neither a resident nor taxpayer in the City of Dover." School [2] Board's Answer, p. 1. The board made this contention in writing and again at the hearing on the petition, but it cites only the Supreme Court case of McBurney v. Young, 133 S.Ct. 1709 (2013) in support. The case is not all that helpful to the school board. It addresses the constitutionality of a Virginia law that requires a person to be a citizen of Virginia in order to obtain public records under the state's freedom of information act. But in dictum, the Supreme Court likened the Virginia law to New Hampshire's Right to Know Law, in that both make public records accessible to citizens of their state. McBurney, 133 S.Ct. at 1714.

RSA 91-A:4, I, provides that "[e]very citizen . . . has the right to inspect all governmental records in the possession custody, or control of [all] public bodies or agencies." The statute does not purport to limit access to residents of the community whose agency's records are sought or to those served by the work of a particular public institution. In the absence of any developed argument by the board about why "citizen" ought to be read to mean "resident" or "local taxpayer," it is not necessary to decide the precise scope of the term. It is at least broad enough to provide citizens of New Hampshire with access to the records of all public bodies and agencies.

[3] The board does not dispute that Mr. Clay is a citizen of New Hampshire. As a result, he has a right to seek the records and to file a petition under RSA 91-A if he believes his access was wrongly denied.

The board's second argument addresses Mr. Clay's supposed motive in requesting documents, which it also advances as a basis for its counterclaim for attorney's fees. The New Hampshire Supreme Court found long ago that a person's "lack of a sufficient personal reason for seeking the information" has no bearing on whether he is entitled to it. Mans v. Lebanon School Board, 112 N.H. 160, 162 (1972) So it is with respect to Mr. Clay. It does not matter why he wants the information because "an individual's motives in seeking disclosure are irrelevant to the question of access." Lambert v. Belknap County Convention, 157 N.H. 375, 383 (2008).

II. The Petition

Mr. Clay presents two central claims in the petition. The first is that the school board must disclose an unredacted version of an email an attorney sent to the superintendent of schools. The second includes observations of board practice, but appears at its root to contend the board is not entitled to [4] withhold certain documents because its sessions did not comply with the requirements of RSA 91-A.

A. E-mail from Attorney Loughman to superintendent Briggs Badger (February 4, 2013)

This request is for access to an unredacted email message that Attorney Barbara Loughman sent Dover school Superintendent Jean Briggs Badger. The email was in apparent response to a newspaper article the Superintendent forwarded to Attorney Loughman. Mr. Clay asked for a copy of the email under RSA 91-A, but the school board contended part of it was protected by the attorney-client privilege and disclosed a redacted version. Mr. Clay now petitions to see the entire communication. The School Board provided the court with the unredacted message under seal (Exhibit P) for in camera review.

The Right to Know law requires generally that government records be made public. RSA 91-A:4, I. It exempts confidential information from disclosure. RSA 91-A:5, IV. "Communications protected under the attorney-client privilege fall within the exemption for confidential information." Prof. Firefighters of N.H. v. N.H. Local Gov't. Center, 163 N.H. 613, 614 (2012). The School Board bears the burden of proving the attorney-client privilege justifies the redaction. Hampton Police Assoc. v. Town of Hampton, 162 N.H. 7, 14 (2011).

[5] The New Hampshire Supreme Court recently described "[t]he classic articulation of the privilege" as follows:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser unless the protection is waived by the client or his legal representatives.

Prof. Firefighters of N.H., 163 N.H. at 615 (quoting Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966) (internal citation omitted)). According to the School Board, it hired Attorney Loughman to examine "the propriety of the Superintendent and the Board's expenditure of surplus funds at the end of FY2012." Board's Answer, ¶ 16. Attorney Loughman conducted the investigation, prepared a report, and presented the report to the Board on January 24, 2013. Exhibit L (Correspondence from Attorney Barbara F. Loughman to Dover City Attorney Allen B. Krans, April 1, 2013). The email exchange at issue began on February 4, 2013. See Exhibit L.

After reviewing the unredacted communication, I find the only part of the email that is arguably covered by the privilege is the paragraph that begins "As to the merits of his comments." Assuming Attorney Loughman's report to the school board was made public, it is not clear whether the information imparted in this [6] paragraph was disclosed as part of her report. Therefore, the School Board shall provide the court with a copy of other records of the report in order that the court may make a comparison. In order for the court to better understand the scope of Attorney Loughman's services, the board shall also file a copy of any agreement under which it hired Attorney Loughman.

The board shall disclose all other portions of the email. These consist of the names of the sender and recipients of the communication, the date the communication was sent, and its subject. The attorney-client privilege protects none of this information. See Kenneth S. Broun, McCormick on Evidence, ยง 90, p. 551 (7th ed. 2013) (fact of consultation not privileged). Neither is there a privilege for the first two paragraphs of the message from Attorney Loughman, as they convey factual information rather than legal advice.

B. Records of Meetings

The balance of Mr. Clay's petition is based on objections to the board's refusal to provide certain meeting minutes, the manner in which it met to discuss certain issues, and its alleged failure to follow its own bylaws with respect to its meetings. In order to place the disputes in context, the court recounts part of the history of Mr. Clay's requests for [7] documents and the responses of the board as conveyed by the city's General Legal Counsel, Attorney Allan B. Krans, Sr.

On March 15, 2013, Mr. Clay sought records from the Superintendent that included

[a]ll Non-public documents classified by the Dover School Board as "sealed," but for which there is no public record available in which a proper motion was made, seconded, or roll call vote recorded to seal the documents, or, to the enter [sic] non-public session in which the minutes were in fact recorded.

Exhibit B. On March 27, 2013, Attorney Krans responded by rejecting the suggestion that the board entered nonpublic sessions improperly. To prove his point, he disclosed meeting minutes reflecting that the board met publicly before it went into nonpublic session. See Exhibit B. The board declined at that time to disclose the sealed minutes of the nonpublic portion of the meeting.

On April 2, 2013, Mr. Clay sent an email request (with a date of March 15, 2013) for email between the Superintendent and any attorney, as well as the "audio and written minutes" of the board's nonpublic meetings on specified dates. Exhibit C. Attorney Krans replied that no email communication between the Superintendent and an attorney was found on the Superintendent's computer. He also averred that the board kept minutes, but did [8] not make audio or video recordings of its public and nonpubllc meetings. In addition, he provided "recently unsealed" minutes of some nonpublic sessions to which Mr. Clay sought access on March 15. On May 1, 2013, he made available to Mr. Clay the minutes of two other nonpublic meetings that the board voted to unseal. He notified Mr. Clay that the minutes of two nonpublic meetings (those of November 5, 2012 and March 18, 2013) remained sealed. Exhibit C.

On May 7, 2013, Mr. Clay asked for "all non-public meeting minutes of Dover School Board meetings occurring between 2007 through present." Exhibit D. Attorney Krans responded on May 16, 2013 with minutes of all nonpublic sessions for the time frame, except for meetings on December 11, 2011, November 5, 2012, March 18, 2013, and April 8, 2013. Citing RSA 91-A:3 and A:5, he notified Mr. Clay that these minutes remained under seal because disclosure would render the proposed action ineffective and/or have an adverse effect on the reputation of a person who was not a member of the school board, or involved internal personnel practices. See Exhibit D.

On May 20, 2013, Mr. Clay filed a new request for the minutes of meetings from 2007 through 2013, which were described on the City's website as "executive sessions" of the school [9] board. Exhibit E. Attorney Krans replied on May 21, 2013 that "executive session" was the term the board used to describe its discussions concerning collective bargaining matters or consultations with its attorney. Since such conferences are outside the scope of the statute, no minutes were kept. Exhibit E (Correspondence from Attorney Krans to Mr. Clay, May 21, 2013 (8:00 a.m.)). Attorney Krans followed-up later in the day with a disclosure that there were minutes of some meetings Mr. Clay understood were executive sessions. He noted that these minutes were provided to Mr. Clay previously. See Exhibit E (Correspondence from Attorney Krans to Mr. Clay, May 21, 2013 (4:00 p.m.)).

1. Nonpublic Sessions

The minutes of the board's nonpublic sessions on December 11, 2011, November 5, 2012, March 18, 2013, and April 8, 2013 remain sealed. See Exhibit D (Correspondence from Attorney Krans to Mr. Clay, May 16, 2013 (10:30 a.m.)). Mr. Clay contends the board did not comply with the requirements of RSA 91-A:3 when it entered nonpublic session and that its failure to do so renders the meeting public and subject to rules governing disclosure of public meeting minutes.

[10] A public body may meet in a nonpublic session only for specified purposes. RSA 91-A:3, I (a). In order to enter nonpublic session, there must first be a motion (with a second) stating the "specific exemption which is relied upon as foundation for the nonpublic session." RSA 91-A:3, I (b). A roll call vote on the motion must follow, and a majority of members present must approve it. Id. Topics that qualify for nonpublic discussion include specific personnel issues described in the statute, and "[m]atters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the public body itself, . . . .' RSA 91-A:3, II (a)-(c). The board provided as an exhibit in the case the minutes of public meetings where it voted to enter nonpublic session. See Exhibit J. This order addresses those sessions where the nonpublic minutes remain sealed.

The minutes of the meeting on November 5, 2012 show the board did not comply with RSA 91-A:3. The statute requires that a motion to enter nonpublic session cite the specific exemption relied upon. The motion on November 5 was "to enter nonpublic session . . . to discuss private matters," which is plainly insufficient. The minutes reflect the board discussed "personnel," but the only personnel matters that may be discussed out of public view are those described in the statute. [11] These are "(a) [t]he dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her [subject to the employee's right to request that the meeting be public], and (b) the hiring of any person as a public employee." RSA 91-A:3, II (a), (b).

In order for the court to determine the appropriate remedy pertaining to the nonpublic session on November 5, the board shall file the minutes of the private meeting under seal for in camera review.

The motion to enter nonpublic session on March 18, 2013 appropriately specifies its purpose, and it appears from the minutes that the board complied with other statutory requirements. Therefore, the court declines to direct the disclosure of the nonpublic minutes from this meeting.

The court was unable to locate among the exhibits provided the public minutes for the meetings on December 11, 2011 and April 18, 2013. If it has not already done so, the board shall disclose to Mr. Clay the public minutes for those meetings. Mr. Clay may request review of the minutes by the court if he contends they do not comply with the statute.

[12] 2. Bylaws of the Dover School Board

Mr. Clay grounds his petition on allegations that the board did not comply with bylaws that govern its meetings. He cites Bylaw Article 4, Section 5 specifically, and notes that board meetings did not follow the schedule outlined in that section. See Exhibit 1, p. 2.

If the rules of the public body "require a broader public access to official meetings and records" than the statute, "such . . . guidelines or rules of order shall take precedence over the requirements of" RSA 91-A. RSA 91-A:2, II. However, the section of the bylaws cited pertains to the manner in which board meetings should be conducted. The bylaws do not give the public any greater access to meetings or records than the statute. Therefore, the court declines to enforce them under RSA 91-A.

3. Executive Sessions

Certain gatherings of members of a public body are not "meetings" under RSA 91-A. These include "[s]trategy or negotiations with respect to collective bargaining," and "[c]onsultation with legal counsel." RSA 91-A:2, I (a), (b). Citing these exemptions, the board met in what it termed "executive session" to discuss matters to which it says the requirements of the right to know law do not apply. See Exhibit [13] E (Correspondence from Attorney Allan B. Krans, Sr. to Jeffrey T. Clay, May 21, 2013).

Mr. Clay argues that the board was required to meet in public session first and then transition to its "executive session." I disagree. His argument finds no support in the statute, and the law is clear that there is no "meeting" to which RSA 91-A applies if members of a public body consult with legal counsel, discuss strategy or negotiations with respect to collective bargaining, or encounter one another at a social event.

It is true, as Mr. Clay points out, that "consultation with legal counsel" means legal counsel must participate. A meeting is not outside the law's scope if the body's members discuss legal matters without its lawyer. See Ettinger v. Town of Madison Planning Bd., 162 N.H. 785, 789 (2011). However, Attorney Krans describes the sessions that occurred under this exemption as "meetings with legal counsel." Exhibit E (Correspondence from Attorney Krans to Mr. Clay, May 21, 2013 (4:00 p.m.), p. 2). Nothing presented to the court suggests legal counsel was absent.

Neither side briefed or otherwise addressed the issue, but the purpose of certain executive sessions described in the May [14] 21 letter of Attorney Krans just referenced was said to concern "a collective bargaining matter involving a grievance." Exhibit E, Attorney Krans Letter, May 21, 2013, p. 1 (emphasis added). I note that such discussions could be construed as "meetings" subject to RSA 91-A, because conferences by board members on collective bargaining matters are outside the statute only if the subject is collective bargaining "[s]trategy or negotiations." RSA 91-A:2, I (a).

Attorney Krans properly makes the distinction in his letter between collective bargaining "grievances" and collective bargaining "negotiations." The board should review whether its executive sessions are appropriate for one, but not the other.


To summarize, the court rules as follows:

(1) The petition is granted in part as to the email between Attorney Loughman and the Superintendent. The board shall provide Mr. Clay with an unredacted version of the email between Attorney Loughman and the Superintendent, except it may maintain the redaction of the paragraph beginning "As to the merits of his comments," pending further order of the court.

To facilitate the court's decision as to the latter paragraph, the board shall within 20 days of the date on the [15] clerk of court's notice of this decision, provide the court with a copy or other record of Attorney Loughman's report, as well as a copy of any agreement under which Attorney Loughman was retained to provide the legal services at issue.

(2) The court reserves ruling on whether there were violations of RSA 91-A with respect to the nonpublic sessions for which the minutes remain sealed. The board shall provide the court with the minutes of the nonpublic session held on November 5, 2012. The minutes shall be submitted under seal and the court will review them in camera. The board shall disclose to Mr. Clay the public minutes for meetings held on December 11, 2011 and April 18, 2013, if it has not already done so. Mr. Clay shall have 20 days from receipt of the minutes (or 20 days from the date of this order if he is familiar with the minutes) to submit written argument on why the nonpublic session conducted on those dates did not conform to the statute.

(3) The petition is denied with respect to the claim that the board violated RSA 91-A by not complying with its bylaws. The sections of the bylaws cited by Mr. Clay do not provide any greater access to meetings or records than does RSA 91-A.

(4) The petition is denied as to the claim that the Dover School Board violated RSA 91-A in holding "executive sessions." [16] Conferences with legal counsel are not "meetings" controlled by the statute.

(5) The board's counterclaim for attorney's fees is denied. The petition was not frivolous as Mr. Clay prevailed on part of it.


Date: July 3, 2013    /s/   

Brian T. Tucker

Presiding Justice