Martin v. Rochester, Doc. No. 219-2018-CV-172 (Strafford Super. Ct., February 8, 2019) (Houran, J.)

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Paul Martin


City of Rochester

Docket No. 219-2018-CV-00172


The plaintiff, Paul Martin ("Dr. Martin") filed this petition against the City of Rochester ("the City") seeking declaratory and injunctive relief pursuant to RSA 91-A, the Right-to-Know Law. (Court index #1.) The defendant filed an answer and, among other things, requested dismissal of the petition. (Court index #5.) The matter was tried to the court on November 29, 2018, and the last post-trial pleading was filed on December 28, 2018. After considering the evidence presented at the trial, the parties' pleadings and arguments, and the applicable law, the court finds and rules as follows.


The court finds the following facts based on the evidence presented at the hearing. The Technical Review Group ("TRG") is a "self-directed work team" in the City originally established by a former City Manager.1 The City Manager is the sole appointing authority for the TRG, and has the ability to dissolve or expand the TRG without the approval of the City Council. The City Manager can appoint or remove members at will. Neither the City Council nor the City Planning Board ("Planning Board") have any input or authority over the TRG. The TRG is not included in the City charter or any City ordinance.

Blaine Cox ("Mr. Cox"), the current City Manager, testified that the TRG is an advisory committee to both planning applicants and the Planning Board, although it has no binding [2] decision-making authority and operates only within furtherance of its charge designated by the City. Jim Campbell ("Mr. Campbell")2, Director of Planning and Development for the City, testified that the TRG as a whole and the individual staff members that make up the committee have no authority to grant or deny conditional use permits, waivers, or variances. The TRG is made up of City employees, including the Chief Planner or designee, City Engineer, Director of Code Enforcement, Fire Marshall, Police Captain, Economic Development Manager or designee (who chairs the group), and a representative of the Conservation Commission. (Def.'s Ex. B.) The TRG does not have a separate budget and is funded by the departments from which the representatives come. The TRG is currently chaired by Jenn Marsh, an employee of the Economic Development Department. Mr. Campbell testified that the City has a constitutional duty to assist applicants and that the TRG is part of meeting that obligation.

According to its October 2017 Statement of Purpose ("2017 SOP"), the purpose of the TRG is to "review projects that are submitted for review to the Planning Board, including site plans and subdivisions." (Def.'s Ex. B.) The applicant or the applicant's agent presents plans to the TRG which then comments on the plans and suggests changes in accordance with various City regulations, laws, and policies. (Id.)

Karen Pollard ("Ms. Pollard")3, the Economic Development Director for the City, testified that the TRG is a group of City employees who work in an informal setting where the applicant can ask questions to prepare applicants for their time in front of the Planning Board. She testified that if the TRG did not exist, the applicant would still have to speak to each one of the staff members separately before going in front of the Planning Board. The TRG acts to streamline the process for the applicants by having all of the pertinent department representatives available to applicants in one place. The TRG functions as follows:

The Economic Development Manager or designee is chair of the Technical Review Group. The Planning Department creates the schedule of meetings for the year and distributes the schedule to the TRG members and to engineers/agents. Meetings are held at 10:00am on Thursdays, on the Thursday [3] the week after new submittals and the week prior to Planning Board regular meetings and workshops.
An email is sent to the TRG a few days before the meeting to remind them of the upcoming meeting and to let them know which projects will need signoffs. If there are no commercial projects to discuss it is helpful to point that out to the Economic Development Manager, or designee, so that they need not attend.
The TRG members will need to complete the sign off sheet when a project is ready for final action by the Planning Board.
Members should sign off on projects by the TRG meeting prior to the Planning Board meeting at which approval is expected. If members cannot attend the meeting or are not ready to sign off they should come to the planning office or enter their comments into Viewpermit by the end of the day Friday following the TRG meeting so that their comments can be incorporated into the Staff Recommendations.

(Id.) The 2017 SOP states that the TRG meetings are not considered public meetings for public notice purposes, and that therefore no notices are sent and no minutes are taken at the meetings. (Id.) However, the dates and times of the TRG meetings are usually listed on the City's website under the Planning Department page. TRG meetings take place in the City Hall Annex Building. Public participation and observation are not part of the process, and the TRG does not permit other applicants or the public to observe TRG interactions with applicants for fear other applicants would read into the comments or requests made for one project and assume they are universally applicable. Ms. Pollard testified that if a member of the public showed up at a meeting, he or she would be asked to leave. The TRG does not hold electronic meetings.

Crystal Galloway ("Ms. Galloway"), the Secretary for the Planning Department, is responsible for scheduling the TRG meetings, and does so via email. Prior to a TRG meeting, Ms. Galloway sends to members of the TRG electronic copies of the meeting agenda, the application(s) that will be reviewed during the meeting, and the accompanying plans. Seth Creighton ("Mr. Creighton")4, Chief Planner in the Planning and Development Department for the City, testified that meeting agendas do not get put into the Planning Board file kept for each project plan, but Ms. Galloway testified that the both the application and the project plans do and [4] are available for inspection by the public. Generally, the TRG members do not make comments to each other, and the email addresses they use are typically their City email addresses, although there is no regulation or rule that says they have to use their City email addresses. Although TRG members may communicate frequently in their capacity as City employees, they rarely communicate about TRG matters, other than if a member cannot attend a meeting. Emails sent using City email addresses are captured on the City email server can be requested by the public for inspection.

An applicant may choose to submit the applicant's plan to the TRG prior to its submission to the Planning Board. However, an applicant is not obligated to do so. Mr. Creighton stated that if an applicant chooses to submit the applicant's plan to the TRG, the TRG group would assemble approximately one week after receiving the application. Between the time the application is submitted and the group assembles, TRG members review the application individually. When the TRG members meet with the applicant, the applicant is asked to give a short verbal summary of what the applicant is proposing. Thereafter, each TRG staff member tells the applicant their understanding of the proposed project, explains to the applicant the result of each member's review, explains how the applicant appears to be either conforming or not conforming to City development rules and regulations, and gives the applicant their comments and recommendations to get the application to a point at which the Planning Board might approve it. The applicant may choose to adopt the recommendations or proceed with the plan as is. Additionally, the applicant is free to meet with the TRG again before presenting the applicant's plan in front of the Planning Board. If a plan came before the TRG that was not ready for the Planning Board, the planning staff would suggest that it be delayed until the data was correct. The TRG does not make decisions as a group; each individual has his or her own area of expertise and each person contributes and makes suggestions based on that person's specific knowledge. One member may say the project appears ready for approval based on that member's individual area of expertise, while another staff member may say that there appear to be problems with another aspect of the project.

Ms. Pollard testified that the Planning Board is not a "rubber stamp" for the TRG. She stated she has observed instances in which individual members of the TRG have indicated that a project appears ready for approval and the project does not get approved by the Planning Board, instances where members of the TRG think a project is not where it needs to be and it gets [5] approved by the Planning Board, and instances where the Planning Board ignores the TRG comments altogether. The TRG on its own can neither advance nor stop a project from moving forward.

After a TRG meeting, the applicant may still have contact with the individual staff members of the TRG. Staff members assist with applications well after the initial meeting, and an applicant can request additional TRG meetings to review plan modifications, or an applicant can be sent back to the TRG by the Planning Board. Not all applications are approved by the Planning Board the first time. Applications can stay at the Planning Board stage for months or even years depending on the case, and during that time applicants still communicate with staff members assigned to the TRG and may possibly attend additional TRG meetings.

Mr. Creighton testified that he puts together a summary of comments made by TRG members during the meeting that is then given to the applicant and placed in the Planning Board file (or "project file") for that project, which is public. He stated that sometimes individual departments submit their own comments in a separate memo. Any such memos would also be included in the file. Ms. Pollard testified that the TRG does not have records of its own, as its only function is to review applications and assist applicants. She stated that comments made by individual TRG staff members are loaded into a City database called Viewpermit so that the Planning Board can view the comments. Joseph Devine ("Mr. Devine"), Compliance Officer for the City, testified that Viewpermit is an online database that is used when people apply for permits. The permit application is put into the database which is linked to all City departments. All departments can view the applications and make and see comments which are saved in the system. If a permit is issued, it is done so electronically.

Viewpermit is a cloud-based system, and comments and input from the TRG are captured and stored in that system. Mr. Creighton testified that Viewpermit is accessible to the public. An individual interested in accessing the system would need to create a free account in order to view documents within Viewpermit. An individual can access information about properties by either the permit number or by the property address, and any permits associated with the address will be pulled up. A user would be able to view any comments made on any applications, including comments made by TRG members, or other City employees, when the application was uploaded to the system. Mr. Creighton testified that there is, however, no final version of the permit contained in Viewpermit.

[6] Mr. Campbell testified that he staffs the Planning Board meetings, and while the Planning Board members receive the TRG comments summary in the Planning Board packet they receive with the application prior to meeting with applicants, the TRG comments are not always discussed at the Planning Board meeting. The Planning Board considers the comments made by the TRG, but does not necessarily accept them. When an applicant modifies an application based on TRG member comments, there would be a new set of plans with the notes that would go into the project file. Each iteration of a project is contained in the project file and the applicant or the public can go back and see all the versions of the project from the beginning. Any details or numbers reviewed by the TRG would be in the Planning Board project file, which is available to the public for inspection through the planning department.

Applicants may apply for waivers when a developer seeks relief from a rule. Mr. Campbell testified that applicants can apply for a waiver as part of their initial application, and other times waivers are initiated by the Planning Board, depending on the situation. The applicable technical department comments on a waiver application, and either Mr. Creighton or another member of the planning staff writes a memo regarding its recommendation concerning the waiver. The Planning Board does not always adopt the recommendations, and it is ultimately up to the Planning Board to grant or deny any waiver request. Applicants may raise waiver requests and seek comments on them at a TRG meeting.

Dr. Paul Martin ("Dr. Martin") moved to Rochester in 2014. Dr. Martin is a veterinarian and a retired professor from the veterinary college at Iowa State University. In early 2016, Dr. Martin was an opposing abutter to the Jeremiah Lane project. At that time, Dr. Martin became interested in matters concerning the Planning Board and the TRG.

As an abutter of the Jeremiah Lane project, Dr. Martin became concerned that a vernal pool was not being treated as such. Dr. Martin stated he became particularly concerned with the number of waivers requested by the developers of the project. In 2015, the developers requested nine waivers for the project, which Dr. Martin felt were at odds with the intent of the City in allowing developments in Rochester. At that point, no waivers were granted. However, at some point later, five waivers were approved in connection with the development, including three sidewalk waivers, one drainage waiver, and one slope waiver. Dr. Martin was interested in whether the previous four waivers requested by the developers had been withdrawn by the applicant or if they had been denied based on comments by the TRG.

[7] Dr. Martin inquired of the Planning Development office as to whether he could attend the TRG meetings. Each of the four staff members in that office responded that he could not attend the meetings. Dr. Martin was concerned about his inability to attend the TRG meetings, so he wrote a message to either then City Manager Fitzpatrick or the City Attorney stating that he had concerns about the way the Planning Board was conducting its meetings, as well as questions about the TRG. He met with both the City Manager and the City Attorney to discuss his concerns and was told the TRG meetings were not public and that he could not attend. At some point, Dr. Martin made an oral request for TRG meeting minutes. His request was denied and, upon further inquiry, he was informed there were neither TRG minutes nor agendas.

Mr. Creighton testified that he has had many interactions with Dr. Martin. Mr. Creighton testified that starting in 2017, Dr. Martin inquired about attending TRG meetings. Although he could not recall his response to Dr. Martin, he testified that Dr. Martin attended one or two TRG meetings. Mr. Creighton testified that he is not sure why Dr. Martin was allowed to attend the meetings, as they are not public meetings, and stated it could have been error or a lack of understanding of the process. Dr. Martin testified that he showed up at a meeting one day to see if he would be allowed to attend. Dr. Martin stated that Mr. Creighton told him that he would be allowed to attend the meeting when the applicant presented the plan, but that he would not be able to ask questions. Dr. Martin testified that he attended two TRG meetings.

At some point, Dr. Martin sent an email directly to the City Mayor asking to view certain records, which included the applications of members of the Planning Board and documents concerning the procedures of the Planning Board. Dr. Martin testified he was interested in seeing how the Planning Board did business. The Mayor referred him to the City Attorney, at which point the City Attorney's paralegal responded and stated they had received his request and would be handling it according to the City's "Administrative Procedure, Subject: Right to Know Requests for Information" ("PPM"). (See Pl.'s Ex. 1; Def.'s Ex. C.) Dr. Martin eventually received copies of the applications of all members serving on the Planning Board and the bylaws.

Ms. Galloway testified that, although she does not handle Right-to-Know requests, she has assisted Dr. Martin with inspecting and reviewing files and copying the files. Ms. Galloway testified that she has always provided Dr. Martin with the requested files, including the agendas [8] she creates for TRG meetings and emails she sends to TRG members scheduling TRG meetings.5 She stated that in all her interactions with Dr. Martin, she is unaware of any known document that exists and has been requested that has not been provided to him. Ms. Galloway testified that she believes Dr. Martin requested to see emails between and among the TRG members and a Right-to-Know request was filed through the City Attorney's office. She received a copy of the request and provided the City Attorney's office with the requested agendas and emails creating the TRG meetings, which took a few days to produce. She then left it to the City Attorney's office to give the documents to Dr. Martin. Ms. Galloway stated she never gave the requested documents directly to Dr. Martin and does not know whether or not he received them. Dr. Martin testified that although he received one or two agendas from Mr. Creighton when he made specific inquiries about Jeremiah Lane and whether it would be on the agenda for that particular TRG meeting, he received the majority of the requested TRG agendas for 2014 through 2018 from the City only as a result of this legal action. (See Pl.'s Exs. 3-4.)

The former City Manager, Daniel Fitzpatrick, first created the PPM in 2012, with revisions made in 2015. (Pl.'s Ex. 1; Def.'s Ex. C.) Mr. Cox testified that the PPM was created to provide guidance to City staff on how to handle Right-to-Know requests, and is not directed at the general public. He stated the PPM does not require the public to do anything in particular when making a Right-to-Know request and does not limit the public's rights under the Right-to- Know Law. The PPM states it "seeks to balance openness and transparency (in accordance with RSA 91-A) versus staff time and City resources." (Pl.'s Ex. 1.) Mr. Cox testified that the PPM was created for the purpose of helping the citizens requesting the information so that they could be as specific as possible with their requests. However, citizens are not required to fill out the form in order to receive documents. (See Pl.'s Ex. 1; Def.'s Ex. C.) If a citizen does not want to fill out the form, the relevant office will fill it out on behalf of the citizen making the request and forward it to the City Attorney's office. (Pl.'s Ex. 1; Def.'s Ex. C.) Mr. Cox stated he believes the City Attorney may refer citizens to other departments. If the citizen does not want to tell the City official their name or why they want access to the information, the City official will fill in the form with whatever information the requesting party provides. According to the PPM, "[a]ll [9] requests for information per RSA 91-A should be referred to the City Attorney's Office. The intent here is that there is but one point of contact for our offices and one point of information dissemination." (Pl.'s Ex. 1.) However, if the information is readily available for immediate inspection, the City must allow that to occur. (Pl.'s Ex. 1; Def.'s Ex. C.) Mr. Cox testified that he understands that if documents are not immediately available for inspection upon request, the City has five business days to make the records available. If a citizen does not give their name or contact information, Mr. Cox stated the City would likely indicate the person needed to come back in five days and the documents would be ready for them, or they would be encouraged to leave their contact information. Conversely, he understands that if the documents are available electronically, the City is obligated to provide those documents in that form.

The City charges individuals a fee for making copies of City records or files. Mr. Cox testified that the City has established its own mechanism for determining what the fee structure is for making copies of City records or files.6 The City's administrative procedure states the following regarding costs of copies:

2. The individual requesting a copy of a governmental record will be charged the actual cost of providing the copy. The City has established the following rate for all items:
a. Black and White photocopies of documents and of black and white computer-printed documents will be charged at $0.50 per page for the first 10 pages of any document for letter (8.5 x 11) size, legal (8.5 x 14) size and ledger (11 x 17) size and $0.10 per page thereafter. For example, since each document is treated separately for purposes of these charges, if a person wanted copies of both a 10 page document and a 20 page document, there would be a $5.00 charge for the first document ($0.50 x 10) and a $6.00 charge for the second document ($0.50 x 10 + $0.10 x 10), not a $7.00 charge for the two documents.

(Pl.'s Ex. 1.) (emphasis in original). Mr. Cox stated he understands that the City may only charge for the cost of copying, and not for the labor associated with making the copies. While Mr. Cox testified that he has not done a comparison of the cost of copying that is being passed [10] along to the citizen and the cost which the City must incur in order to provide those copies, the cost of copying includes the cost of leasing the machines, their maintenance, and the cost to purchase paper from Office Supply. Mr. Cox testified that the cost of copying must take into account the capital costs of the copiers that are incurred at the end of the lease agreement. According to the City's FY19 copier allocations, $53,280.83 is the actual lease total for the City copiers and $6,223.92 is the total cost of the maintenance for the black and white copiers. (See Pl.'s Ex. 5A.) Based on his previous years as Finance Director for the City, Mr. Cox testified that he believes that the City is charging a reasonable approximation of the actual costs to the City. He testified that payments for copying are not a revenue source and do not produce a profit. Dr. Martin testified that when he has requested documents, he has received both paper and electronic copies. He stated the City charged him fifty cents for the first ten pages and ten cents for every page after that regardless of how many documents he requested.


Dr. Martin seeks statutory and injunctive relief against the City, arguing that he is aggrieved by the City's failure to fulfill his requests for public information. (Pl.'s Memo. Law § I.) Further, Dr. Martin argues he is aggrieved by the City's assertions that it has the right to hold TRG meetings that are not open to the public, and its contention the TRG does not fall within the ambit of the Right-to-Know law pursuant to RSA 91-A. (Pl.'s Memo. Law § I.) Additionally, Dr. Martin argues the copy fee structure assessed by the City is meant to chill and deter public access and is not related to the actual costs of making copies. (Id. at § II. (B).) Dr. Martin argues he is entitled to his costs and fees associated with this litigation. (Compl. ¶ F.) The court addresses these claims in turn.

I. Right-to-Know Law

Dr. Martin argues that the TRG is a public body under RSA 91-A:1-a, VI(d), a public agency under RSA 91-A:1-a, V, and an advisory committee under RSA 91-A:1-a, I, and is therefore subject to the requirements of the Right-to-Know mandates of public notice, open meetings, maintenance of and publication of minutes, open votes, and the ability of the public to record. (Pl.'s Memo. Law § II. (A).) Dr. Martin asserts that the TRG is charged with "getting the business of government done" and does so by meeting, discussing, deliberating, and advising developers and the Planning Board regarding how, under what conditions, and with what changes a project is to be expedited, approved, and completed. (Id.) Additionally, Dr. Martin [11] argues that as a public body, public agency, or advisory committee, the TRG must also maintain all government records, including notes, handouts, and minutes at a known place and make them available for public inspection and duplication during normal business hours pursuant to RSA 91-A:4. (Id.)

Dr. Martin further argues the City's PPM is void as it is against the law, and that a person requesting documents need not identify himself or herself, nor provide any reason or basis for their request as it is irrelevant to the information sought. (Compl. ¶ D; Pl.'s Memo. Law § II. (A).)

The City concedes that the TRG is part of a public agency and is therefore susceptible to the RSA 91-A governmental records inspection requirement applicable to both public agencies and public bodies, RSA 91-A:4. (Def.'s Summ. 6.) The City recognizes that subject to certain exceptions, all govermnent records produced by, for, with, or in the possession of the City must be made available to the public for review. (Id. at 7.) However, the City argues that the TRG, although made up of City employees appointed to it by the City Manager, is not a public body and that its meetings are accordingly not required to be open to the public. (Id. at 6.) The City points out that while both pubic agencies and public bodies are subject to the Right-to-Know Law's records inspection requirement, RSA 91-A:4, only public bodies are subject to the Law's open meetings requirement, RSA 91-A:2. (Id. at 6-7.) The City asserts a group of employees with no foundation in the City charter, City ordinance, Land Use regulations, with no budget, authority, and no power, and that can be dissolved at any time by the City Manager, is not what the Legislature intended when it defined "public bodies" in RSA 91-A:1-a. (Id. at 7.) The City also asserts that there has been no showing that the PPM violates the law, or how Dr. Martin has been aggrieved by the existence of the PPM. (Id. at 8-9.)

RSA 91-A sets out the Right-to-Know Law in New Hampshire. RSA 91-A guarantees that "[e]very citizen . . . has the right to 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 . . . ." RSA 91-A:4, I. RSA 91-A also guarantees that all meetings of public bodies "shall be open to the public." RSA 91-A:2. The statute addresses "public agencies," "public bodies," and "advisory committees," and defines each of those terms.

[12] A "public agency" means "any agency, authority, department, or office of the state or of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision." RSA 91-A:1-a, V.

A "public body" means any of the following:

(a) The general court including executive sessions of committees; and including any advisory committee established by the general court.
(b) The executive council and the governor with the executive council; including any advisory committee established by the governor by executive order or by the executive council.
(c) Any board or commission of any state agency or authority, including the board of trustees of the university system of New Hampshire and any committee, advisory or otherwise, established by such entities.
(d) Any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto.
(e) Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.

RSA 91-A:1-a, IV. The portion of the definition of "public body" potentially applicable to this case is RSA 91-A:1-a, IV(d),

An "advisory committee" means

any committee, council, commission or other like body whose primary purpose is to consider an issue or issues designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of any public policy or legislation that may be promoted, modified, or opposed by such authority.

RSA 91-A:1-a, I.

The City recognizes that, subject to certain exceptions, all government records produced by, for, with, or in the possession of the City must be made available to the public for review (Def.'s Summ. 7), and concedes that the governmental records inspection requirement applicable to both public agencies and public bodies, RSA 91-A:4, applies to the TRG. (Id. at 6.) The court accordingly assumes without deciding that the public records inspection requirements applicable to public agencies as set out in RSA 91-A:4 apply to the TRG.

[13] The question presented by this litigation is not just whether the TRG is subject to the records inspection provisions of RSA 91-A:4 but whether the TRG is an "advisory committee" or is otherwise a "public body," and thus subject to the open meetings requirements of RSA 91-A:2.

"Public bodies" are subject to the mandates of the Right-to-Know Law regarding meetings, meaning all meetings must be open to the public and noticed, any person is permitted to record the meetings, and meeting minutes are promptly recorded and must be open to the public for inspection within five business days of the meeting. RSA 91-A:2, II.

RSA 91-A:1-a, VI(d) expressly states that "public bodies" include any "agency" or "advisory committee thereto." The question then is whether the TRG is an "advisory committee" or an "agency" within the meaning of RSA 91-A:1-a, VI(d). The court concludes that it is not.

The term "advisory committee" has a particularized definition in the Right-to-Know Law. Pursuant to RSA 91-A:1-a, I, an "advisory committee" is a committee "designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of any public policy or legislation that may be promoted, modified, or opposed by such authority." The TRG is not constituted to advise or make recommendations concerning formulation of public policy or legislation. It instead is a group of staff members from various City departments brought together to advise applicants concerning the applicants' proposed projects, and then to advise the Planning Board as to the view of each department concerning the applicant's proposed project. Most such advisory committees, those not charged with providing advice or recommendations concerning formulations of public policy or legislation, "are not public bodies and are not themselves subject to the Right-to-Know law meeting requirements. However, any information an advisory committee provides to the agency will be subject to the governmental records requirements." ATTORNEY GENERAL'S MEMORANDUM ON NEW HAMPSHIRE'S RIGHT-TO-KNOW LAW, RSA CHAPTER 91-A, n.1 (March 20, 2015) (last accessed Feb. 5, 2019) ( The TRG is not an "advisory committee" within the meaning of RSA 91-A:1-a.

As the Attorney General's Memorandum on New Hampshire's Right-to-Know Law points out, there is an unresolved issue concerning whether and to what extent State and [14] municipal "agencies" are intended by the Right-to-Know Law to be considered "public bodies" subject to open meeting requirements:

Members of the former Right-to-Know Commission have publicly commented that the inclusion of "agency" in the definition of a municipal public body was unintended. The Right-to-Know law otherwise distinguishes a public agency from a public body. Generally, public bodies are subject to the open meeting requirements and public agencies are not. Such municipal agencies and authorities are subject to the governmental records requirements of the Right-to-Know law because they fall within the definition of a public agency. The courts have not yet had occasion to interpret whether the existing paragraph imposes public meeting requirements on a municipal agency. Applying public meeting requirements to an agency would be impractical and it is expected a court would find application of the public meeting requirement on a municipal public agency an absurd construction of the statute. Legislation introduced in 2009, House Bill 53, would have removed the words "agency" and "authority" from the definition of a municipal public body. House Bill 53 was retained in the House Judiciary Committee and vetoed after passage in the 2010 legislative session.

Id. at n. 4.

In order to resolve the current litigation, however, the court need not resolve this issue, because the TRG is not a City "agency" (nor is it a board, committee, subcommittee, or subordinate body or the like of any City "agency").

"The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 660 (2012) (quotation omitted). "It thus furthers our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted." Id.; see also N.H. CONST. pt. I, art. 8. While the statute does not provide for unlimited access to public records, the court resolves questions regarding the Right-to-Know Law with "a view to providing the utmost information in order to best effectuate these statutory and constitutional objectives." 38 Endicott St. N., 163 N.H. at 660. Therefore, the court broadly construes provisions favoring disclosure and interprets the exemptions restrictively. Taylor v. Sch. Admin. Unit #55, 170 N.H. 322, 326 (2017). "A public entity seeking to avoid disclosure under the Right-to-Know Law bears a heavy burden to shift the balance toward nondisclosure." 38 Endicott St. N., 163 N.H. at 660 (quotation omitted).

[15] However, "[n]ot all organizations that work for or with the government are subject to the right-to-know law." Bradbury v. Shaw, 116 N.H. 388, 389-90 (1976). In classifying an organization, the court recognizes that "any general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done," and the court must "construe[] the right-to-know law to further the statutory objectives of increasing public access to governmental proceedings." Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540, 547 (1997) (quotations and citations omitted).

In Bradbury v. Shaw, 116 N.H. 388, 390 (1976), the Court affirmed the trial court's ruling that the Industrial Advisory Committee's "involvement in governmental programs and decisions brought it within the scope of the right-to-know law." Id. The Industrial Advisory Committee was established by the Mayor of Rochester and consisted of prominent businessmen, newspapermen, and members of the city council. Id. at 389. There was no statute or ordinance that established or provided for the committee-it derived its authority from the Mayor who created the committee and called its meetings. Id. The committee met once a month for six months and performed a number of functions, such as contacting businesses it believed might be interested in moving to Rochester, gathered information which potential investors might find useful, and devoted time to the sale of city-owned land, which included arranging transactions and participating in negotiations. Id.

In Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 N.H. 540, 547 (1997), the Court dealt with an entity that was "not easily characterized as solely private or entirely public." The statutory intent in creating the New Hampshire Housing Finance Authority (the "Authority") was to create a "state housing finance authority," but was also considered a "body politic and corporate having a distinct legal existence separate from the state and not constituting a department of state government." Id. (citations omitted). Many of the Authority's day-to-day operations functioned independently from the State. Id. The Court found, on balance, that the Authority was subject to the Right-to-Know Law because the Authority was created "to encourage the investment of private capital . . . through the use of public financing" and that it was deemed "to be a public instrumentality and the exercise by the authority of the powers conferred by [RSA chapter 204-C] shall be deemed and held to be the performance of public and essential governmental functions of the state." Id. (citations omitted). Additionally, [16] the Authority "performs the essential government function of providing safe and affordable housing to the elderly and low income residents of our State." Id.

In Professional Firefighters of New Hampshire v. HealthTrust, Inc., 151 N.H. 501, 504 (2004), the Court was confronted with a similar quasi-public entity. HealthTrust existed as a distinct legal entity, provided products and services also supplied by private entities, and competed with private entities in the market for the sale of those products and services. Id. (citations omitted). The Court ultimately found that HealthTrust was subject to the Right-to-Know Law because it was an organization comprised exclusively of political subdivisions, which are subject to the Right-to-Know Law; it was governed entirely by public officials and employees; it provided health insurance benefits for public employees through a pooled risk management program deemed by the legislature to be an "essential government function"; it operated for the sole benefit of its constituent governmental entities and for the sole purpose of managing and providing health insurance benefits for public employees and; it managed money collected from governmental entities and enjoyed the tax-exempt status of public entities. Id.

In determining this issue, the court broadly construes the evidence in favor of disclosure. The TRG is a self-directed work team that is made up of City employees. During its meetings, the TRG members discuss with individual applicants the land use plans the applicants seek to present to the Planning Board for approval. Applicants are not obligated to meet with the TRG. Applicants may choose to meet separately with the applicable individual City departments before presenting their plans to the Planning Board, or may choose to present their plans to the Planning Board directly, without any departmental input.

The TRG does not have its own budget and was not created by any City ordinance, charter, or regulation. Rather, the TRG was created by the City Manager, and the City Manager has sole discretion to dissolve the group, or to add or remove members. The City Mayor, City Council, and the Planning Board have no input as to how the TRG is managed.

The City is constitutionally obligated to provide assistance to applicants. The Supreme Court has "consistently held that municipalities have a constitutional obligation 'to provide assistance to all their citizens' under Part I, Article 1 of our State Constitution." Kelsey v. Town of Hanover, 157 N.H. 632, 638 (2008) (quoting Carbonneau v. Town of Rye, 120 N.H. 96, 99 (1980)); see also Richmond Co. v. City of Concord, 149 N.H. 312, 314 (2003); Savage v. Town of Rye, 120 N.H. 409, 411 (1980). The Supreme Court has "reminded towns that it is their [17] function to provide assistance to their citizens, and that the measure of assistance certainly includes informing applicants not only whether their applications are substantively acceptable but also whether they are technically in order." Richmond Co., 149 N.H. at 315 (internal quotation and citation omitted).

The TRG is nothing more, or less, than one of the ways the City Manager has implemented compliance with this constitutional requirement. Each of the City's departments is obligated to assist applicants as the applicants try to determine whether their applications are substantively acceptable and technically in order. See id. There is no argument that an applicant's department-by-department meetings with staff members to get input as to whether an application is viewed as substantively acceptable and technically in order is a meeting open to the public within the meaning of RSA 91-A:2. The City Manager has chosen to bring the relevant department staff members together to perform that function in this working group as a way to streamline the constitutionally mandated process for applicants and as a way to increase efficiency for City department staff members. Doing so does not render a process which is outside of the open meetings provisions of RSA 91-A subject to those requirements.

Further, although the TRG members provide recommendations and comments to the applicants, they have no decision-making authority, nor any power to suspend, hinder, or facilitate any land use proposals or waiver requests. In addition, the Planning Board is neither required to nor does it always agree with or consider the comments made by TRG members, nor is the Planning Board a "rubber stamp" for the TRG. There was, for example, testimony that it is not uncommon for TRG members to either recommend or decline to recommend applications for approval, with the Planning Board ultimately ruling the other way. The Planning Board maintains the sole authority to grant or deny land use applications and waiver requests.

Dr. Martin's main contention is that he is not able to attend TRG meetings or gain access to TRG meeting minutes. Because the TRG does not fall within the definition of a public body under RSA 91-A, it is not required to hold public meetings.7 Accordingly, neither Dr. Martin nor any other member of the general public, is entitled to attend TRG meetings. The TRG does not take meeting minutes (nor is it required to do so), but its members do produce work product, including comments or suggestions concerning applications, and that work product becomes part [18] of the Planning Board project file that can be accessed by the public. The City maintains the records of the TRG and allows the public to access these records. Just as with departmental staff comments or recommendations made to the Planning Board after a meeting between an individual department member and an applicant, the comments or recommendations made by a TRG member after an applicant meeting become part of the public file, and just as with such individual meetings, the TRG meetings with applicants are not public meetings.

Lastly, the court finds that the City's PPM is not unlawful. Mr. Cox testified that the PPM exists only for use by City employees, as it provides them guidance on how to process Right-to-Know requests for governmental records. This form is not intended for use by the general public. Members of the public are not required to fill out the PPM form or provide identifying information in order to access City records. If the documents are readily available, members of the public are allowed to immediately inspect them. If they will take longer to produce, the City official may ask for contact information or ask the individual to come back after five days. Moreover, Dr. Martin testified that he has never had to fill out a PPM form and has never been asked to provide information when he has requested records subject to disclosure under the Right-to-Know Law. Further, the evidence presented shows that Dr. Martin has been able to access the TRG agendas, TRG emails, and the Planning Board project files containing TRG comments, and these materials appear to be the entirety of the material generated by the TRG.

II. Copy Fee Structure

Dr. Martin argues the City's copy fee structure chills and deters public access. (Pl.'s Memo. Law § II. (B).) Dr. Martin asserts that the City could not proffer any reason for its fee structure, nor provide an explanation as to why the price drastically differs from the first page of a document to the eleventh page of the document. (Id.) Dr. Martin argues that an analysis based on the City's own documents and numbers indicate that, at most, the actual cost of copying is 3.9 cents a copy, and not the fifty cent and ten cent rates assessed by the City. (Id.) The City argues that Dr. Martin has not presented evidence that anyone, including himself, has ever been denied access to governmental records based on the City's fee structure. (Def.'s Summ. 9.) The City notes that the fee structure is only triggered when a citizen requests the City to make copies of documents, and that citizens may inspect and copy the records themselves for free. (Id.) Furthermore, the City argues that to the extent Dr. Martin is arguing the City is charging too [19] much for copies, he has failed to meet his burden. (Id. at 10.)8 The City argues its fee schedule is reflective of operating costs and maintenance associated with the copiers, and that it is commensurate with fees charged by other New Hampshire municipalities. (Id.)

Pursuant to RSA 91-A:4, VI,

If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency. No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of governmental records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.

Id. In Taylor v. School Administrative Unit #55, 170 N.H. 322, 327-28 (2017), the Court found that the School Administrative Unit #55's fee of $7.49 for a thumb drive it sold to individuals making Right-to-Know requests was the actual cost of a thumb drive and that the fee complied with RSA 91-A:4. Id.

The court finds the copying fees assessed by the City are commensurate with "the actual cost of providing the copy," RSA 91-A:4, IV, as evidenced by testimony of City officials and by comparison with other fees assessed in comparable municipalities across the state. The City currently charges fifty cents per page for the first ten pages of any standard black and white document and ten cents per page thereafter. Mr. Cox testified that the fee structure is based on the actual cost of copying, and not for the labor associated with making the copies. These costs include the cost of leasing the machines, their maintenance, and the cost to purchase paper from Office Supply. Mr. Cox testified that the cost of copying must take into account the capital costs of the copiers that are incurred at the end of the lease agreement. Although not determinative, the City presented strongly persuasive evidence of fee schedules from other towns or cities: Derry charges twenty-five cents per page for a photocopy; Dover charges fifty cents per page; Portsmouth charges two dollars for the first page and fifty cents thereafter; Somersworth charges ten dollars for up to ten pages and any page beyond that is one dollar per page; Claremont [20] charges twenty-five cents to one dollar per page depending on the paper size; Nashua charges seventy-five cents for the first page and ten cents per page after that; Laconia charges one dollar per page; and Manchester charges one dollar for the first copy and fifty cents for each additional copy. (Def.'s Ex. D.)

The court finds that the City's fee structure of fifty cents per page for the first ten pages and ten cents per page thereafter is in compliance with RSA 91-A:4, VI, nor is there any evidence that it chills or deters public access.

III. Attorney's Fees

Dr. Martin argues he is entitled to costs and attorney's fees pursuant to RSA 91-A:8, the redemption of a public right doctrine, and under the Harkeem9 doctrine. (Compl. ¶ F.) The City argues that it should prevail on the issues, and therefore attorney's fees would not be appropriate. (Def.'s Summ. II.) Alternatively, the City argues that if Dr. Martin prevails, he would not be entitled to attorney's fees because he is unable to prove that the City knew or should have known that its actions constituted a violation of RSA 91-A. (Id.)

Because Dr. Martin has not prevailed, he is not entitled to attorney's fees or costs associated with litigation.


In sum, for the foregoing reasons the court denies Dr. Martin's request for declaratory and injunctive relief pursuant to RSA 91-A.

So Ordered.

February 8, 2019    /s/   

Steven M. Houran

Presiding Justice

1 The current City Manager, Blaine Cox, testified that through his membership and involvement with the International City Manager's Association, he became familiar with the term "self-directed work team." Mr. Cox explained that a self-directed work team is a staff committee formed by the chief executive, or in the City's case, the City Manager. The staff committee is given a charge or a charter with a specific purpose, and its members are self- directed to determine how they are going to achieve the directive they have been given. Mr. Cox stated the IT self- directed work group and the Employee of the Month Selection Committee are other examples of self-directed work teams in the City.

2 In his capacity as head of the Planning Department, Mr. Campbell makes sure the department runs smoothly and supervises his staff, including the Chief Planner, Senior Planner, and the Administrative Assistant. He is also the resource person for the Planning Board. When he was first hired in 2012, he was the Chief Planner and was required to staff the TRG meetings.

3 Ms. Pollard has been the Economic Development Director since October 2003. Her job duties include assisting businesses that want to grow and expand in Rochester. When she started in 2003, the TRG was already in existence. Ms. Pollard stated she attends TRG meetings infrequently.

4 Mr. Creighton has been the Chief Planner for the City since August 2013. His duties and responsibilities include a multitude of zoning and planning interpretations, including reviewing applications and building permits for conformance with zoning ordinances and the City site plan subdivision regulations, and long term planning for the City. Prior to working for the City, he worked in the field of planning with the Lakes Region Planning Commission and for the City of Laconia Planning Committee.

5 Ms. Galloway testified that she cannot remember whether the request for the TRG agenda was from the City Attorney's office or directly from Dr. Martin. She also stated she could not remember if she personally gave the documents to him or whether there were redactions contained within the documents. Additionally, Dr. Martin could not recall if he made a Right-to-Know request for the TRG agendas.

6 Mr. Cox testified that he does not believe the City consulted copying rates in Dover, Somersworth, Portsmouth, or Derry in arriving at its decision to charge its copying rates. The City produced fee schedules from the following local towns or cities: Derry charges twenty-five cents per page for a photocopy; Dover charges fifty cents per page; Portsmouth charges two dollars for the first page and fifty cents thereafter; Somersworth charges ten dollars for up to ten pages and any page beyond that is one dollar per page; Claremont charges twenty-five cents to one dollar per page depending on the paper size; Nashua charges seventy-five cents for first page and ten cents per page after that; Laconia charges one dollar per page and; Manchester charges one dollar for the first copy and fifty cents for each additional copy. (Def.'s Ex. D.)

7 The City Manager's 2003 and 2017 SOPs concerning the TRG make it clear as well that TRG sessions are not public meetings. (See Def.'s Exs. A-B.)

8 The court assumes without deciding that it is the City's burden to prove reasonableness, not Dr. Martin's burden to prove unreasonableness. Cf. Murray v. N.H. Div. of State Police, 154 N.H. 579, 583 (2006) (government's obligation to show exemption to disclosure applies).

9 Harkeem v. Adams, 117 N.H. 687 (1977).