Clay v. Dover School Board, Doc. No. 219-2013-CV-474 (Strafford Super. Ct., July 11, 2014) (Tucker, J.)




Jeffrey Thomas Clay


Dover, New Hampshire School Board, et al.

No. 219-2013-cv-474


Jeffrey Thomas Clay requests an order enjoining the Dover, New Hampshire School Board and School District SAU 11 from violating the state Right to Know Law (RSA 91-A). The complaint is dismissed, in part on the merits and on grounds of res judicata, but also because the history of the case makes injunctive relief unnecessary.


There is a litigation history between Mr. Clay and the defendants that bears on the present case. On April 11, 2013, Mr. Clay brought a Right to Know Law action against the defendants in which he charged them with entering nonpublic session improperly, discussing subjects outside the scope of those for which nonpublic sessions are authorized, and improperly sealing minutes of the meetings. See Clay v. Dover, New Hampshire School Board, et al. (Strafford Super. Ct. No. 219-2013-cv-139). He also asserted a [2] right to view e-mail exchanged between the Dover Superintendent of Schools and any attorney. Id., Petition, ¶ 24.

Between July 3, 2013 and November 1, 2013, the court issued orders on certain Right to Know Law violations by the School Board to Mr. Clay. On December 2, 2013, Mr. Clay filed the present complaint. He groups his claims into several categories, which are addressed separately.


1. Nonpublic Sessions

The first challenge is to the manner in which the Dover School Board entered into nonpublic session in the period between October 15, 2012 and October 7, 2013. As in his first complaint, Mr. Clay alleges the Board violated RSA 91-A:3 in various ways, including omitting to cite a specific purpose for entering nonpublic session, not taking proper votes to conduct a nonpublic meeting, discussing matters outside the scope of those authorized for consideration in a nonpublic setting, and improper sealing of nonpublic session minutes. His April 2013 case was based on allegations of similar violations at meetings held between August 11, 2008 and March 18, 2013.

The violations claimed by Mr. Clay through April 8, 2013 (Complaint ¶¶ 1-12) are barred by res judicata. "The doctrine of res judicata precludes the litigation in a later case of matters [3] actually litigated, and matters that could have been litigated, in an earlier action between the same parties for the same cause of action." In re Alfred P., 126 N.H. 628, 629 (1985) (citations omitted). For the doctrine of res judicata to apply "three elements must be met: (1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action." Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). "Cause of action" means "the right to recover, regardless of the theory of recovery." Eastern Marine Constr. Corp. v. First Southern Leasing, 129 N.H. 270, 274 (1987).

Since these issues were litigated in the prior proceeding, it would be redundant for the court to once again review the Board's compliance with RSA 91-A in meetings it held before it was put on notice of the violations described in the court's orders. Not surprisingly, in its Answer to Mr. Clay's complaint the Board admits various Right to Know Law violations in different meetings, all of which took place before the court issued its orders in 2013. Counsel for the defendants (who has succeeded their prior counsel) noted at the hearing on the complaint that there is a now a new school board whose members have undergone training in the Right to Know Law.

[4] Violations that occurred in meetings held after the court decided Mr. Clay's first suit would be a different matter, but injunctive relief is unnecessary as it pertains to the meetings identified in the complaint, since every one occurred before the court made its final ruling in the prior litigation. Therefore, the claims listed in paragraphs 13 through 20 of the complaint are dismissed and the request for injunctive relief is denied. See ATV Watch v. N.H. Dep't of Resources & Econ. Dev., 155 N.H. 434, 437-38 (2007) (whether to grant injunction is discretionary "after consideration of the facts and established principles of equity." (quotation omitted).

2. Disclosure of Records and Minutes

In paragraphs 21 through 34 of his Complaint, Mr. Clay contends the defendants conducted an inadequate search of their files in response to his request for email between the Dover School Superintendent and any attorney. He notes that acting through their new counsel, the defendants eventually did provide the documents he sought. Complaint, ¶ 33. However, he seeks a ruling that the defendants violated RSA 91-A as a result of the delay in making the documents available. Id. ¶ 34.

The claim is barred by res judicata, since the same issue was noted in the petition in the prior litigation, but was not pursued except to a limited extent. See No. 220-2013-cv-139, Complaint, [5] ¶ 24.1 Even if res judicata did not require dimissal, the present circumstances do not warrant an order on this subject. The information has been provided, which moots the need for an order requiring disclosure. Moreover, chastising the defendants for their conduct at this point would serve little purpose. As with the issues pertaining to nonpublic sessions, the Board appears to be making a fresh start that includes training in the law and a greater effort to respond to public record requests. For these reasons, the request for injunctive relief is denied.

3. Redactions and Sealing of Records

a. Paragraphs 35 through 40 and paragraph 42 of his Complaint, Mr. Clay challenges the defendants' decision to redact portions of certain email and memoranda based on attorney-client privilege. The attorney-client privilege applies "[w]here legal advice of any kind is sought from a professional legal adviser in his capacity as such," if "made in confidence" and "relating to that purpose." Prof. Firefighters of N.H. v. N.H. Local Gov't. Center, 163 N.H. 613, 615 (2012) (quotation omitted).

The defendants provided under seal for the court's review the unredacted version of each document for which Mr. Clay contests the privilege. See Exhibit A. I agree with the defendants that the email dated March 28, 2013 is an attorney-client protected [6] communication. See Prof. Fire Fighters, 163 N.H. at 614-15 (protected attorney-client communications come within "confidential information" exemption of RSA 91-A:5, IV.) With respect to the emails dated May 22, May 24, May 28, and two email messages on May 29, I find the documents are protected under the closely related work product doctrine.

"The work product of a lawyer consists generally of his 'mental impressions, conclusions, opinions or legal theories.'" Riddle Spring Realty Co. v. State, 107 N.H. 271, 275 (1966) (quotation omitted). The State Supreme Court has intimated that attorney work product is exempt from disclosure. See ATV Watch v. N.H. Dep't of Transportation, 161 N.H. 746, 761 (2011). And such information is protected under the federal Freedom of Information Act (5 U.S.C. ยง 552 (b)(5)). National Council of La Raza v. Dept. of Justice, 411 F.3d 350, 356 (2d Cir. 2005). The federal law often serves as a guide in construing the scope of the equivalent New Hampshire statute. 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 660 (2012).

Although a client was copied on the correspondence, the documents were not attorney-client communications transmitting legal advice, but were emails between two attorneys in which they discussed legal positions and strategy in their representation of the defendants in Mr. Clay's prior Right to Know Law action. The "emerging majority view" is that the work product privilege extends [7] to subsequent litigation in related proceedings. Jumper v. Yellow Corp., 176 F.R.D. 282, 286 (N.D. Ill. 1997). Therefore, I find these communications exempt from disclosure.

b. In paragraph 41 of the Complaint, Mr. Clay objects to the defendants' decision to partially seal the nonpublic session minutes of April 8, 2013. After review of the unredacted version of the document, I sustain the defendants' position that the information is privileged under RSA 91-A:3, II(c), in that it sets forth matters that would likely adversely affect the reputation of persons other than board members if disclosed publicly.

c. The unredacted documents identified as 19A, 20A, and 21A, are protected attorney-client communications. Therefore I dismiss the challenge to the sealing of those documents as expressed in paragraph 42 of the Complaint.

4. Consultations with Legal Counsel

Mr. Clay contends the defendants use "consultations with legal counsel" as a subterfuge in order to make decisions that should otherwise be made in meetings. Complaint, ¶ 43. This claim is made without any evidentiary support. Accordingly it is dismissed.

[8] Conclusion

The complaint is dismissed for the reasons given.


Date: July 11, 2014    /s/   

Brian T. Tucker

Presiding Justice

1 Mr. Clay focused on obtaining an unredacted email between the Superintendent and Attorney Loughman. See No. 220-2013-cv-139, Complaint, ¶¶ 22-27, 29-30, 33-34. The email was disclosed as a result of his suit. See id., Order, July 3, 2013, at 4-6; Order, Oct. 7, 2013, at 1-2.