Censabella v. Hogan, Doc. No. 226-2017-CV-0135 (Hillsborough South Super. Ct., June 23, 2017) (Mangones, J.)

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HILLSBOROUGH, SS. 226-2017-CV-00135






The plaintiff, Lisa Censabella, has filed a petition against the defendant, Dennis Hogan, in his capacity as the Hillsborough County Attorney, seeking relief pursuant to RSA 91-A, New Hampshire's Right to Know law. The defendant moves to dismiss, asserting that the plaintiff is not an aggrieved party, and, therefore, has no standing to maintain this action.

The Court held a hearing on this matter on April 14, 2017, at which both parties were represented by counsel. The parties have since filed supplemental memoranda. After considering the pleadings, the arguments, and the applicable law, the defendant's motion to dismiss is granted.

[2] Background

The Court draws the following facts from the record. The plaintiff's attorney, Tony Soltani, Esq., had contacted the Hillsborough County Attorney's Office ("HCAO") numerous times seeking the production of certain documents pursuant to RSA 91-A. The Court summarizes some of the parties' communications as follows:

1. On December 28, 2015, Attorney Soltani sent a letter to the defendant seeking production of "any and all information, documents, memoranda, reports, and other material in whatever form kept and by whatever name called regarding Kimberley McSweeney ...." The subject line in the letter is "Re: Right to Know Request- Kimberley McSweeney." This letter did not mention the plaintiff's name or that Attorney Soltani was seeking the information on behalf of a client.
2. On January 8, 2016, the defendant responded to Attorney Soltani's letter. He provided a record of Ms. McSweeney from his "file management systems." He also noted that "You have not identified yourself or your office as representing Kimberly McSweeney. Therefore any personnel information we have is not available to you."
3. On January 26, 2016, Attorney Soltani wrote a letter to the defendant, which stated in part: "I am in receipt of your response dated January 8, 2016 regarding my Right to Know Request." (Emphasis added.) Attorney Soltani also indicated that he did not represent Ms. McSweeney. Again, however, he did not mention that he was seeking the documents on behalf of the plaintiff or any other client.
4. On March 2, 2016, Attorney Soltani wrote four letters to the defendant requesting information regarding Weare, New Hampshire police officers. All of the letters stated "This request is being made under the New Hampshire Right to Know Law (RSA 91-A)." On March 7, 2016, Attorney Soltani wrote a similar letter requesting information regarding State Representative Neal Kurk. These letters did not mention the plaintiff's name nor did they indicate that Attorney Soltani sought the information on behalf of a client.
[3] 5. On April 8, 2016, Attorney Soltani responded to the defendant's "response dated March 31, 2016 regarding my Right to Know Request of Kimberly McSweeney." In that letter, Attorney Soltani indicated that he was trying to narrow his request to "mitigate the ... expenditure on my client's behalf for material that we may not need." The letter, however, does not mention the client's name.
6. On July 22, 2016, Attorney Soltani wrote a letter to the defendant. Attorney Soltani noted that his law firm, the MuniLaw Group, "initially filed a right to know request ... relative to Sergeant Kimberly McSweeney." The letter does not indicate that Attorney Soltani was seeking the information on behalf of a client.
7. In another follow-up letter dated September 29, 2016, Attorney Soltani indicated that "This Office has been retained to represent former Chief John Velleca." There is no mention of any other clients. At the very end of this letter, it states: "Cc: Client(s)."
8. On November 21, 2016, Attorney Soltani wrote to the defendant in regards to "my Right to Know Requests involving Kimberly McSweeney." (Emphasis added.) In the letter, Attorney Soltani indicated that he was still unsatisfied with the defendant's responses and threatened litigation. There was no mention of the plaintiff's name. At the very end of this letter, it states: "Cc: Client(s)."
9. On November 29, 2016, the defendant wrote to Attorney Soltani. The defendant enclosed "six sheets of paper containing the information you requested in your November 21, 2016 letter." The defendant indicated that "[t]wo portions of the information required redaction."

(Pl.'s Ex. 1; Def.'s Ex. A.)

Unsatisfied with the information received, the plaintiff filed this petition on March 30, 2017. She alleges that she "is a citizen and resident of the State of New Hampshire who has been aggrieved by violations of RSA 91-A occurring between December 28, 2015 through November 29, 2016, by the Defendant Hillsborough County Attorney Dennis Hogan, which violations have not been remedied ...." (Pet. ¶ 6.)

[4] The defendant now moves to dismiss. He asserts that the plaintiff "is not identified directly or indirectly in any of the requests cited in the petition nor do any documents reflect that requests were proffered on her behalf." (Def.'s Mot. Dismiss ¶ 4.) As such, the defendant maintains that the plaintiff lacks standing under RSA 91-A to bring this petition.

Standard of Review

"Generally, in ruling upon a motion to dismiss, the trial court is required to determine whether the allegations contained in the [plaintiff's] pleadings are sufficient to state a basis upon which relief may be granted." K.L.N. Constr. Co. v. Town of Pelham, 167 N.H. 180, 183 (2014) (citation omitted). "To make this determination, the [C]ourt would normally accept all facts pled by the [plaintiff] as true, construing them most favorably to the [plaintiff]." Id. (citation omitted). "When the motion to dismiss does not challenge the sufficiency of the [plaintiff's] legal claim but, instead, raises certain defenses, the trial court must look beyond the [plaintiff's] unsubstantiated allegations and determine, based on the facts, whether the [plaintiff] ha[s] sufficiently demonstrated [her] right to claim relief." Id. (citation omitted). "A jurisdictional challenge based upon lack of standing is such a defense." Id. (citation omitted).


It is black letter law that "[f]or a court to hear a party's complaint, the party must have standing to assert the claim." GE v. Comm'r, N.H. Dep't of Revenue [5] Admin., 154 N.H. 457, 461 (2006) (quotation omitted); see also State ex rel. Thomson v. State Bd. of Parole, 115 N.H. 414, 419 (1975) (noting that the purpose of the law of standing is to protect against improper plaintiffs). "In evaluating whether a party has standing to sue, [the Court] focus[es] on whether the party suffered a legal injury against which the law was designed to protect." Birch Broad., Inc. v. Capitol Broad. Corp., Inc., 161 N.H. 192, 199 (2010) (quotation omitted). Because the defendant's standing argument is statutorily based, the Court is required to interpret RSA 91-A.1

"The ordinary rules of statutory construction apply to [the Court's] review of the Right-to-Know Law." N.H. Right to Life v. Dir., N.H. Charitable Trs. Unit, 169 N.H. 95, 102-03 (2016) (quotation omitted). "When examining the language of a statute, [the Court] ascribe[s] the plain and ordinary meaning to the words used." Id. at 103 (quotation omitted). The Court gleans "legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. (quotation omitted). The Court "also interpret[s] a statute in the context of the overall statutory scheme and not in isolation." Id. (quotation omitted). The Court may also "look to the decisions of other jurisdictions interpreting similar acts for guidance, including federal interpretations of the federal Freedom of information [6] Act (FOIA)." Id. (quotation omitted). "Such similar laws, because they are in pari materia, are interpretatively helpful ...." Id.

RSA 91-A:4 provides, in relevant part:

Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.

RSA 91-A:4, IV. In the event the public body or the agency fails to comply with the "request," "[a]ny person aggrieved by a violation of this chapter may petition the superior court for injunctive relief." RSA 91-A:7.

The issue in this case is whether the plaintiff is a "person aggrieved" and therefore entitled to maintain this action. The term "person aggrieved" is not defined in RSA 91-A. The New Hampshire Supreme Court, however, has held that the "plain and ordinary meaning of the term 'aggrieved'" is one "having a grievance; specifically suffering from an infringement or denial of legal rights." In re Williams, 159 N.H. 318, 324 (2009) (quotation and brackets omitted). Thus, it follows that an "aggrieved party" in the context of RSA 91-A is one who has had his or her right of inspection and/or access to public records denied by a public body. See also McDonnell v. United States, 4 F.3d 1227, 1237 (3d Cir. 1993) (legislative history of FOIA indicated "Congress's intent to identify the person [7] making the request with the person aggrieved when a request is denied"); Osterman v. U.S. Army Corps of Eng'rs, No. CV13-1787-BJR, 2014 U.S. Dist. LEXIS 154058, at *4 (W.D. Wash. Oct. 30, 2014) ("In the context of FOIA, standing is conferred on an individual whose FOIA request has been denied in whole or part.").

Here, it appears undisputed that the plaintiff herself never requested any of the documents she seeks in her petition, and, therefore, never had her right of access denied by the defendant. While her attorney could have requested the documents on her behalf, the plaintiff's name does not appear in any of Attorney Soltani's letters to the defendant. See Brown v. EPA, 384 F.Supp.2d 271, 276-77 (D.D.C. 2005) (holding that plaintiff had standing to challenge denial of attorney's FOIA request that was expressly made on plaintiff's behalf). In one of his letters, Attorney Soltani had written that he represented a party, but it was a different party -a Chief John Velleca. Attorney Soltani also routinely wrote in the first person in many of his letters. See Three Forks Ranch Corp. v. Bureau of Land Mgmt., Little Snake Field Office, 358 F.Supp.2d 1, 3 (D.D.C. 2005) (dismissing FOIA action where attorney "wrote in the first-person and did not specifically state that he was making the request 'on behalf of' Three Forks Ranch" because "an attorney must adequately identify that he is making the FOIA request for his client in order for the client to have standing to pursue a FOIA action").

Indeed, every federal court interpreting FOIA has held that a previously undisclosed client does not have standing to bring an action under these [8] circumstances. Mahtesian v. U.S. OPM, 388 F.Supp.2d 1047, 1048 (N.D. Cal. 2005) (noting that under FOIA, "every court that has considered the issue has held that" there is no standing).2 Because the New Hampshire Supreme Court has repeatedly found federal courts' interpretation of FOIA to be instructive in construing RSA 91-A,3 the Court finds these cases to be persuasive.


The following orders are entered by the Court:

1. The Court concludes that the plaintiff is not a "person aggrieved" under RSA 91-A:7, and, therefore, does not have standing to proceed with this action.

[9] 2. To the extent that plaintiff seeks to go forward with this action, plaintiff shall have thirty (30) days from the date of the Clerk of Court's notification of this order in which to file a motion seeking to correct the issue of standing. If defendant objects to the motion, defendant shall have the customary ten (10) days in which to file an objection.

3. Absent a successful correction of the issue of standing, as determined by the Court, defendant's motion to dismiss shall be granted.


   6.23.17       /s/   

Date Philip P. Mangones

Presiding Justice

1 There is also a constitutional dimension to the standing inquiry. See Duncan v. State, 166 N.H. 630, 642 (2014) (noting that "[a]lthough the standing requirements under Article III of the Federal Constitution are not binding upon state courts and although the State Constitution does not contain a provision similar to Article III, as a practical matter, Part II, Article 74 imposes standing requirements that are similar to those imposed by Article III of the Federal Constitution") (internal citations omitted).

2 See, e.g., Wetzel v. U.S. Dep't of Veterans Affairs, 949 F. Supp. 2d 198, 202 (D.D.C. 2013) (stating that "courts routinely dismiss FOIA cases for lack of standing by a plaintiff where plaintiff's counsel submitted a request without including plaintiff's name or clearly indicating that the request was being filed on the plaintiff's behalf"); Wingate v. U.S. Dep't of Homeland Sec., No. 8:11-cv-223-T-33AEP, 2012 U.S. Dist. LEXIS 75270, at *2 (M.D. Fla. May 31, 2012) (plaintiffs had no standing when FOIA requests were made by attorney without naming plaintiffs as requesting parties); Fieger v. Fed. Election Comm'n, 690 F. Supp. 2d 644, 649 (E.D. Mich. 2010) ("There must be an identity between the requesting person and the party bringing the lawsuit."); Haskell Co. v. U.S. DOJ, No. 05-1110(RMC), 2006 U.S. Dist. LEXIS 12892, at *2 (D.D.C. Mar. 13, 2006) (dismissing case for lack of standing because FOIA request was "submitted solely by" plaintiff's attorney and plaintiff was "not the real party in interest"); Brown, 384 F.Supp.2d at 276 (D.D.C. 2005) (noting that "several courts have dismissed FOIA claims for lack of standing where plaintiff's counsel submitted a request for documents to an agency without including the plaintiff's name on the request or stating that the request was being filed on behalf of the plaintiff"); see also Craig A. Rolfe, P.L.L.C. v. Lake Templene Improvement Bd., No. 327513, 2015 WL 9487695, at *3 (Mich. Ct. App. Dec. 29, 2015) (client could not maintain Michigan FOIA action where the "facts show that [the attorney] sent FOIA requests in his own name on September 18, 2014 and that these FOIA requests included absolutely no mention of [the client] or the fact that [the attorney] had been retained by [the client]"); Macris v. Guam Mem'l Hosp. Auth., No. CV0117-07, 2008 WL 1749476, at *6 (Guam Apr. 11, 2008) ("Under the Sunshine Act, the agent must identify the principal in making the information request, for the principal to have standing to institute proceedings pursuant to section 1O111(b).")

3 See Reid v. N.H. Att'y Gen., 169 N.H. 509, 522 (2016) (looking to United States Supreme Court's interpretation of term in FOIA); 38 Endicott St. N., LLC v. State Fire Marshal, 163 N.H. 656, 667 (2012) (looking to federal circuit court's interpretation of FOIA); ATV Watch v. N.H. Dep't of Transp., 161 N.H. 746, 753 (2011) (looking to federal's courts interpretation of FOIA regarding reasonableness of search efforts by agency); Lodge v. Knowlton, 118 N.H. 574 (1978) (adopting six-prong test under FOIA for evaluating requests for access to police investigative files).