Condodemetraky v. Barnes, Doc. No. 450-2002-SC-187 (Laconia Dist. Ct., June 11, 2003) (Scheffy, J.)

Pages: 1 2 3



Belknap, ss Laconia District Court

Docket No. 02-SC-0187





This case was tried on April 11, 2003, and testimony was given by the Plaintiff, George Condodemetraky, the named Defendant, Terry Barnes, and Paul Deschenes, the Stratham Town Administrator. The Court adopts the Statement of Facts and Issue of Law contained in the Defendant's Memorandum of Law dated April 10, 2003. For the reasons that follow, it is the Court's opinion that all documents in the possession of the Stratham Building Inspector relative to the subject real estate are part of the public record. Plaintiff, therefore, had the right to "inspect . . . and to make . . . copies of the records."

The Court begins with the strong (nearly irrebutable) presumption of the Statute (RSA 91-A) that, a) any record in the hands of a governmental agency is a public record; and b) as such, the public should be given the greatest reasonable access to the records.

The Defendant argues that the Court should apply the balancing test described in Brent v. Paquette, 132 N.H. 415 (1989). That is to say, the benefit to society of having access to the type of record in this situation should be weighed against the privacy interest of the particular homeowner. It is relevant to point out here that the Plaintiff was permitted to see the building plans but not to copy them. A distinction between the two based on a privacy interest would be hard to define. The relevant [2] part of the Brent decision related to pupil information held by a school. The Court opined that such records came under the exemption of RSA 91-A, 5, IV. It also noted that Federal law prohibited giving out such information to the public.

The Defendant also argues that because the building plans might later have been returned to the homeowner, they were, ipso facto, not a public record. This argument is similarly uncompelling. Even if they ceased to be a part of the public record, they certainly were a part of it while in the Town's custody. The plans were the basis upon which a building permit was issued in the first place and, thereafter, the basis on which the construction in progress was monitored. Access to the whole record, building plans included, might be essential for the townspeople if they suspected some malfeasance was occurring in the building department and anted evidence to prove or disprove it.

The Perras case (Perras v. Clements, 127 N.H. 603 (1986),) also cited by the Defendant, held that a property owner could not have access to appraisal information for his property, nearby properties in the process of condemnation and for properties already taken. The glaring distinction between the fact patterns of that case and this is that the information related to litigation (at least potential litigation) and confidential financial information. The information, compiled by the State would have greatly undermined the State's ability to negotiate with property owners in the course of condemnation proceedings.

Finally, the Defendant argues that the property owner's expectation of privacy should be honored. There was no evidence as to what those expectations were nor what the Building Inspector may have inferred they were.

[3] It is hard to avoid the conclusion that the tempers of both parties in this case were flaring. What might have been resolved quite easily became the subject of litigation in a Court some substantial distance from the site of the problem. It is the Court's opinion that the Plaintiff should have been granted access to the records but that his damages are nominal. The sum of $1 is awarded to the Plaintiff.

June    11   , 2003    /s/   

Brackett L. Scheffy

Presiding Justice