Albert S. Brandano v. Superintendent of New Hampshire School Administrative Unit 16 & a. ( 2023 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2022-0084, Albert S. Brandano v.
Superintendent of New Hampshire School Administrative Unit
16 & a., the court on November 3, 2023, issued the following
order:
The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiff, Albert S. Brandano, appeals an order of the Superior Court (Ruoff, J.)
dismissing his complaint under the Right-to-Know Law, RSA chapter 91-A
(2023). We affirm in part, reverse in part, and remand.
I. Background
The following facts either were found by the trial court or reflect the
content of documents in the appellate record. On July 4, 2021, the plaintiff
sent a Right-to-Know Law request to defendant Superintendent David Ryan,
in his capacity as Superintendent of New Hampshire School Administrative
Unit 16 (SAU 16), requesting the following documents relating to Diversity,
Equity, Inclusion and Justice (DEIJ) committees and activities between July
1, 2019 and June 30, 2021 “in SAU16 or any School District in SAU16.”
a. Request No 1: All charters, member lists, or other records establishing
or setting out the purposes, goals, or objectives of all DEIJ
Committees;
b. Request No 2: All postings, agendas, materials distributed to
committee members, presentations, work products, videos, chat logs,
and minutes, for all meetings of all DEIJ Committees;
c. Request No 3: All emails or other written communications, between
any DEIJ Committee Chairperson or other group leader or facilitator,
and any SAU16 Officer, concerning a DEIJ Committee or DEIJ
Activity;
d. Request No 4: All records of any DEIJ Activity of any School Board or
Committee of a School Board. Such records include but are not
limited to postings, agendas, materials distributed to members,
presentations, work products, videos, chat logs, and minutes;
e. Request No 5: All records of any DEIJ Activity of any SAU16 Officer;
f. Request No 6: All contracts, agreements, or grant applications that, in
whole or in part, concern a DEIJ Committee or seek to enable DEIJ
Activity;
g. Request No 7: All records of expenses incurred in support of a DEIJ
Committee or DEIJ Activity, and the budgets from which they were
paid or will be paid; and
h. Request No 8: All records of any DEIJ-Activity-related curriculum
materials, for example books, that were distributed, assigned,
recommended, or suggested to any SAU16 teachers or students.
Ryan emailed the plaintiff on July 7, 2021, acknowledging receipt of the
requests, explaining that most of the information the plaintiff sought was
available on the SAU 16 website, and indicating that SAU 16 would need an
additional five days to respond to Request Nos. 6 and 7, and an additional
45 days to respond to Request No. 3. Ryan emailed the plaintiff again on
July 16, 2021, attaching documents responsive to Request Nos. 6 and 7 and
indicating that budget information for the DEIJ position could be found on
the SAU 16 website. In the same email, Ryan indicated that he still intended
to provide documents responsive to Request No. 3 within “the 45 days
previously indicated.”
On August 16, 2021, the plaintiff emailed Ryan and, among other
things, informed him that he believed that SAU 16 had not provided certain
documents responsive to his requests because he had obtained responsive
documents from other sources. He provided specific examples of documents
that he believed were responsive to his requests but which had not been
provided by Ryan. Ryan did not respond to the email.
On August 23, 2021, the plaintiff again emailed Ryan and others. In
the email, titled, “SAU 16 – RIGHT TO KNOW 91A’s – July 4, 2021 – Notice
of Delinquency,” the plaintiff reminded Ryan of the 45-day deadline to
respond to Request No. 3 and of his August 16 email.
On August 27, 2021 the plaintiff again emailed Ryan and others,
stating:
Public notice
REF: Notice of Delinquency Aug 23, 2021
Superintendent Ryan you are now in Violation of Section 91-A:4.
Your inaction as well as violation of the spirit of the law for full
disclosure, leaves me no other option than to proceed under NH
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State Law; 91-A:7 Violation and 91-A:8 Remedies.
On September 28, 2021, the plaintiff filed a Right-to-Know Law complaint
requesting that the court order Ryan and SAU 16 to immediately produce
the information he had requested, and to award him attorney’s fees and
costs.
On October 14, 2021, Ryan sent an email to the plaintiff stating:
Please find attached three invoices, which we have requested
and obtained from the following schools and districts: Newfields
School District, East Kingston Elementary School, Kensington
Elementary School, and Swasey Central School. The SAU
neither contracted with, nor paid for the services provided by,
2revolutions. We have been informed by the schools that there
do not exist any written contracts relating to these invoices or
2revolutions. These documents are being produced to you as a
courtesy. Although they may be “governmental records” of
entities other than the SAU, they are not within the scope of the
SAU’s obligations under RSA 91-A.
On October 18, 2021, the defendants filed a verified motion to dismiss,
to which the plaintiff objected. A hearing was held on October 20, 2021.
The defendants had not yet produced any documents in response to Request
No. 3 as of the date of the hearing. Nevertheless, the trial court granted the
motion to dismiss on December 9, 2021, stating, in relevant part:
[T]he Court provisionally GRANTS Defendants’ motion to
dismiss pending Defendants’ production of documents, in their
possession, responsive to Plaintiff’s Request No. 3 within 45-
days of the Clerk’s Notice of Decision accompanying this Order.
If Defendants comply with this deadline, the instant action will
be dismissed. Should Defendants fail to comply with the
deadline, the Court will be open to rehearing argument related
to the costs and fees related to securing such documents.
The clerk’s written notice of decision was dated December 9, 2021. The
plaintiff filed a motion to reconsider, which the trial court denied on January
14, 2022.
The defendants provided additional documents to the plaintiff on
December 16, 2021. Ryan sent an email to the plaintiff which read, in part:
In response to your July 4, 2021 RSA 91-A request, specifically
#3, we have searched the SAU 16 email accounts of all SAU 16
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officers and any other relevant individuals and are providing you
with all emails during the time period identified which constitute
“governmental records” as defined in RSA 91-A:1-a, III.
Attached to the email were ten PDF files containing emails in which some
personal identities had been redacted that were responsive to Request No. 3.
On January 20, 2022, Ryan emailed the plaintiff and informed him that SAU
16 had provided all responsive documents regarding Request No. 3, and that
he had personally checked to ensure that all of the responsive documents
had been provided.
On January 24, 2022, the plaintiff filed a verified motion to compel.
On February 14, 2022, the plaintiff appealed the order granting the motion
to dismiss. The trial court denied the motion to compel on February 28,
2022. The plaintiff did not separately appeal the trial court’s order on the
motion to compel, but argues in his brief that the trial court erred in denying
the relief he requested in the motion. Accordingly, at issue in this appeal are
whether the trial court erred when it: (1) provisionally granted the
defendants’ motion to dismiss; (2) denied the plaintiff’s motion to compel;
and (3) denied the plaintiff’s request for attorney’s fees.
II. Analysis
The Right-to-Know Law ensures “both the greatest possible public
access to the actions, discussions and records of all public bodies, and their
accountability to the people.” RSA 91-A:1. To effectuate this purpose, the
law guarantees “[e]very citizen . . . the right to inspect . . . and to copy” all
governmental records, with limited exceptions. RSA 91-A:4, I; see RSA 91-
A:5. In reviewing trial court orders in Right-to-Know Law cases, we defer to
the trial court’s findings of fact if they are supported by the evidence and are
not erroneous as a matter of law, and review the trial court’s interpretation
of the Right-to-Know Law de novo. Provenza v. Town of Canaan, 175 N.H.
121, 124 (2022).
A. Defendants’ Motion to Dismiss
The defendants moved to dismiss the plaintiff’s Right-to-Know Law
complaint, arguing that: (1) most of the requested documents do not fall
within the definition of “governmental records”; (2) the defendants are the
wrong parties because the documents sought are in the possession of the
individual school districts, and not SAU 16; and (3) they have produced all of
the responsive documents. The trial court assumed without deciding that
the requested records fell within the definition of “governmental records,” but
found that the defendants were obligated to turn over only documents in
their possession, not documents in the possession of individual school
districts, and that the defendants’ search for responsive documents was
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reasonably calculated to discover the requested documents. Regarding the
documents responsive to Request No. 3, the trial court stated:
Defendants acknowledge that they have yet to fulfill Plaintiff’s
Request No. 3 and represent that they are working diligently to
produce responsive documents. The Court accepts this
representation; however, in the interest of compliance with the
spirit of the Right-to-Know law, see RSA 91-A:1—and a
mindfulness of the strain that the Covid pandemic restrictions in
schools, coupled with the holiday season, can have on the public
school system—Defendants have 45-days to produce the
documents, in their possession, responsive to Plaintiff’s Request
No. 3.
The plaintiff argues that the trial court erred “in absolving SAU 16
from searching for and producing responsive documents in the possession of
individual school districts.” The defendants argue that the trial court
correctly concluded that because SAU 16 is a separate legal entity from the
seven individual school districts that are members of SAU 16, the Right-to-
Know Law requires SAU 16 to turn over only those responsive documents
that are in SAU 16’s possession, and that it was not obligated to search for,
and turn over, records that were in the possession of the individual districts.
Because resolution of this issue requires an interpretation of the
Right-to-Know Law, our review is de novo. Provenza, 175 N.H. at 124.
When interpreting the Right-to-Know Law, we apply our ordinary rules of
statutory interpretation. Union Leader Corp. v. Town of Salem, 173 N.H.
345, 350 (2020). We look first to the language of the statute itself, and if
possible, construe that language according to its plain and ordinary
meaning. Anderson v. Robitaille, 172 N.H. 20, 22 (2019). We give effect to
every word of a statute whenever possible and will not consider what the
legislature did not see fit to include. In re J.P., 173 N.H. 453, 460 (2020).
The Right-to-Know Law requires a “public body or agency” to make
governmental records “within its files” available upon request. RSA 91-A:4,
IV(a). The statute defines “[p]ublic agency” as “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. By its plain
language, the statute identifies a school district as a public agency separate
from a school administrative unit. Compare RSA ch. 194 (2018 & Supp.
2022) (“School Districts”), with RSA ch. 194-C (2008 & Supp. 2022) (“School
Administrative Units”); see RSA 194:1 (“Each town shall constitute a single
district for school purposes); RSA 194-C:2 (Supp. 2022) (setting forth
process to establish, join or withdraw from a school administrative unit).
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Given the distinction created by the legislature, we affirm the trial court’s
determination that a “school district” and a “school administrative unit” are
separate public agencies within the meaning of the Right-to-Know Law.
The Right-to-Know Law states that “[e]ach public body or agency shall
keep and maintain all governmental records in its custody.” RSA 91-A:4, III.
“Governmental records” means
[a]ny information created, accepted, or obtained by, or on behalf of,
any public body, or a quorum or majority thereof, or any public agency
in furtherance of its official function. Without limiting the foregoing,
the term “governmental records” includes any written communication
or other information, whether in paper, electronic, or other physical
form, received by a quorum or majority of a public body in furtherance
of its official function, whether at a meeting or outside a meeting of the
body. The term “governmental records” shall also include the term
“public records.”
RSA 91-A:1-a, III. Accordingly, each individual school district is required by
RSA 91-A:4, III to keep and maintain documents relating to its official
function, and SAU 16 is required to keep and maintain documents relating
to its official function.
We disagree with the plaintiff that Ryan had a responsibility to search
for and produce responsive documents that were in the possession of
individual school districts, which the legislature has identified as
independent public agencies for purposes of the Right-to-Know Law. Our
interpretation of the statute is consistent with at least one court interpreting
the federal Freedom of Information Act, see Prado v. Ilchert, No. C-95-1497
MPH, 1997 WL 383239 at *3 (N.D. Cal. June 10, 1997) (dismissing Freedom
of Information Act complaint because “[t]hough the INS and EOIR are closely
related in the organization of the DOJ, they are clearly distinct agencies”),
and the plaintiff cites no authority for the proposition that an agency is
responsible for collecting, maintaining, and producing the records of another
associated agency.
To the extent that the plaintiff challenges the finding that the
defendants failed to conduct a reasonable search for documents responsive
to Request Nos. 1, 2, 4, 5, 6, 7, and 8, we disagree. To determine whether a
search for documents was legally adequate, we follow the standard applied
under the federal Freedom of Information Act. See ATV Watch v. N.H. Dep’t
of Transp., 161 N.H. 746, 753 (2011). The “issue is not whether relevant
documents might exist, but whether the agency’s search was reasonably
calculated to discover the requested documents.” Id. The “agency must
show beyond material doubt that it has conducted a search reasonably
calculated to uncover all relevant documents.” Id. (quotation omitted). An
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agency can meet this burden “by producing affidavits that are relatively
detailed, nonconclusory, and submitted in good faith.” Id. (quotation
omitted).
Although the defendants did not submit an affidavit in this case, their
motion to dismiss was verified by Ryan. It was therefore appropriate for the
trial court to accord the same weight to the assertions made in the motion as
if they had been included in an affidavit submitted by Ryan. Cf. Vette v. K-9
Unit Deputy Sanders, 989 F.3d 1154, 1163 (10th Cir. 2021) (verified
complaint may be treated as an affidavit for purposes of summary judgment
if it alleges facts based on the plaintiff’s personal knowledge and has been
sworn under penalty of perjury). According to the verified motion,
[Defendants] have provided [plaintiff] with all documents that are
within the scope of the SAU’s obligations under RSA 91-A. And
[defendants] have gone further. They have requested and obtained
additional documents from individual districts and individual school
boards—each their own separate public agency and body,
respectively—and have produced to [plaintiff] such additional
documents, despite not being required under RSA 91-A to do so. The
SAU also intends to produce numerous emails that do not constitute
“governmental records.”
. . . [Defendants] have devoted significant time to responding to
[plaintiff’s] broad requests and lengthy emails, despite, in large part,
having no obligation to do so under RSA 91-A. [Defendants] did so in
addition to the day-to-day administration of a massive SAU, which
includes seven individual school districts, twelve individual schools,
and a 32-member joint Board to which the Superintendent reports.
[Defendants] did so in addition to the added responsibilities incurred
as a result of a global pandemic. And, at the time, the Superintendent
was addressing more than five Right to Know law requests. The SAU
continues to dedicate significant time, reviewing two years-worth of
emails that are unlikely to fall within the scope of its RSA 91-A
obligations but which the SAU intends to produce.
Ryan was present at the hearing on the motion to dismiss. At the hearing,
counsel for the defendants described the defendants’ search for responsive
records as follows:
So what the SAU did here was it took these requests,
which were narrow requests. Which is nice because a lot of
public agencies are receiving extremely broad requests. Took
these specific requests, looked at the records that they
maintained, conducted that search. It took them 30 hours, five
different people.
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And it’s continuing to take them additional time as they
produce voluntarily materials that they don’t maintain that are
in SAU records. But it took them 30 hours to respond to these
requests. And what came up was the records that existed within
that scope, plus additional records that existed within the scope
of other agencies’ right to know law maintenance duties.
We conclude from our review of the record that the defendants
demonstrated, beyond material doubt, that, as of the date of the hearing,
they conducted a search reasonably calculated to uncover all relevant
documents, and that they had produced those records, except those records
identified in Request No. 3. We understand the plaintiff to argue on appeal
that the search was not reasonably calculated to uncover all relevant
documents because: (1) the defendants failed to produce a contract with
2Revolutions, a consulting firm, that had been provided in response to a
Right-to-Know Law request made by another Right-to-Know Law requester;
and (2) the defendants’ descriptions of the search were conclusory and
lacked sufficient detail, and the defendants failed to disclose the
methodology to the plaintiff.
Regarding the 2Revolutions contract, the plaintiff argues that the
defendants’ search of records should have, but did not, result in the
disclosure of a contract between the SAU and 2Revolutions, as well as
2Revolutions invoices. According to the plaintiff, another Right-to-Know Law
requester was provided with a copy of a contract between 2Revolutions and
the SAU that had not been provided to him. But the defendants’ verified
objection to the motion to reconsider stated that the other requester’s
request was for 2Revolutions documents generally, a fact that the plaintiff
does not dispute. By contrast, the plaintiff’s Right-to-Know Law requests
inquired only about DEIJ materials. The contract that was provided to the
other requester reflects that 2Revolutions was providing services to the SAU
unrelated to DEIJ initiatives, and, therefore, the contract was not responsive
to the plaintiff’s Right-to-Know Law requests. The invoices produced in
response to the other requester’s request related to DEIJ services provided
by 2Revolutions to individual school districts, and were, therefore records
maintained by the school districts.
Regarding the plaintiff’s argument that the defendants’ descriptions of
the search were conclusory and lacked sufficient detail, we agree with the
defendants that our decision in ATV Watch is instructive. ATV Watch, 161
N.H. at 753-54. There were no sworn assertions in ATV Watch. Id. The only
statements made in support of the reasonableness of the search were made
by counsel for the State, who stated:
I’m not sure if [plaintiff] is saying that there were some documents that
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he should have gotten that he didn’t get. Without a specific allegation
of some document that exists, . . . all I can do is represent to the
Court that the DOT went through its files and was very thorough. As
far as I know, there’s no other document out there that was not
gathered in its search.
....
The DOT properly gave the scope of its search to its employees. The
DOT knows what documents it has and who it should refer that to.
. . . the DOT knows who’s involved in this issue, how long the issue’s
been going on, and they—they did a reasonable search of their
records.
Id. With respect to these statements, we noted that “[w]hile counsel’s
representations are conclusory and not particularly detailed, the State had
witnesses at the hearing who were presumably prepared to testify.” Id. at
754. We also noted that the plaintiffs “did not object to the procedure or
seek to examine the State’s witnesses.” Id.The defendants’ representations in this case were far more detailed.
Furthermore, the plaintiff did not challenge those assertions and did not ask
the defendants about their specific search methodologies, and did not seek
to examine Ryan. Instead, the plaintiff suggested that the court order a
third party vendor to conduct the search, arguing, in part, that the
defendants’ alleged failure to produce a document – the 2Revolutions
contract – justified such relief. Only after he filed his motion to reconsider
the order on the motion to dismiss did the plaintiff argue that the scope of
the defendants’ search was not reasonable, inquiring, “Where did they
search? How did they search?” Following our review of the record, we
conclude that the trial court did not err when it concluded that the
defendants had met their burden to show that their search was reasonable,
and that the plaintiff failed to rebut this by showing that the search was
unreasonable or not conducted in good faith. Id. at 753.
B. Plaintiff’s Motion to Compel
The trial court’s December 9, 2021 order provisionally granting the
defendants’ motion to dismiss stated that the action would be dismissed if
the defendants produced documents responsive to Request No. 3 within 45
days of the notice of decision accompanying the order. On December 16,
2021, Ryan sent an email to the plaintiff attaching ten PDF files containing
emails in which some personal identities had been redacted. On January
20, 2022, Ryan emailed the plaintiff and informed him that the SAU had
provided all responsive documents regarding Request No. 3.
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On January 24, 2022, the plaintiff filed a verified motion to compel,
requesting that the court compel the defendants to disclose “344 missing
email pages,” as well as the “documents and information contained in those
emails,” and requesting costs and attorney’s fees. The defendants objected
and the trial court denied the motion in a margin order on February 28,
2022, stating: “Upon review of the prior order, all related pleadings and the
SAU’s objection, the Motion is Denied. The Court concurs with all but one of
the arguments and conclusions of the SAU. Thus, the Motion is DENIED.
The Court does not find that this pleading implicates RSA 91-A:8, II.”
The defendants’ verified objection to the motion to compel (referred to
in the trial court’s order as the “SAU objection”) states, in part:
To be very clear: [Defendants] have fully complied with
their obligations under RSA 91-A and as further clarified in this
Court’s December 9, 2021 Order. [Defendants] have produced all
emails and documents that pertain to a function of the SAU and
are in the SAU’s possession. [Defendants] went further and even
produced emails to which a SAU officer was copied for whatever
reason by the sender, even though those emails did not pertain
to any SAU function. This was the product of broad search
criteria—involving numerous emails sent to or from both SAU
officers as well as individuals associated with DEIJ efforts in
individual districts or schools that relate to any matters of DEIJ,
DEI, or diversity—designed to decrease the response time to
[plaintiff’s] request and attempt to avoid unnecessary litigation.
[Defendants] have further provided, as this Court recognized in
its Order, documents that were not in the SAU’s possession and
which did not pertain to a SAU function. With respect to the
email production responsive to [plaintiff’s] Request #3,
[defendants] produced all emails responsive to that request. As
noted in [defendants’] Objection to [plaintiff’s] Motion for
Reconsideration, at 11, n.9, much of the information and many
of the documents referenced in those emails had already been
produced to [plaintiff] via link to the SAU’s public website.
Additional documents were available via live links in the email
production.
Regarding redactions, the verified objection noted that Request No. 3 was for
emails and communications “between any DEIJ committee Chairperson or
other group leader or facilitat[or] and any SAU16 Officer,” and that the
defendants had “redacted names of individuals who did not fall within that
request, who did not serve any official SAU function, and whose privacy
interests were implicated under RSA 91-A:5, IV, including “parents, vendors,
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and similar individuals who did not meet [plaintiff’s] definition of ‘SAU
Officer’ and who are not employees of any school district or SAU office.”
(Quotation and emphases omitted.) Finally, regarding the missing pages, the
defendants noted that they removed advertisements and “junk mail,” and
messages entirely unrelated to the plaintiff’s request. Even if we were to
assume that, despite the plaintiff’s failure to appeal the trial court’s order
denying his motion to compel, these issues are properly before us, we
conclude, based upon our review of the record on appeal, that the trial court
did not err in denying the motion.
Regarding the 344 pages that were allegedly missing from the
production, we cannot conclude that the trial court erred in accepting the
representation made in the defendants’ verified objection that the missing
pages included advertisements and “junk mail” and messages entirely
unrelated to the plaintiff’s request. Regarding the documents attached or
linked to the emails that were not produced, we have reviewed each of the
emails and conclude that the attachments to which the emails refer did not
pertain to an SAU function, were not in the SAU’s possession, and/or were
already publicly available. Cf. Triestman v. U.S. Dept. of Justice, Drug
Enfor., 878 F. Supp. 667, 671 (S.D.N.Y. 1995) (“[T]o require an agency to
collect and produce information that has already been made public would
not further the general purpose of FOIA, which is to satisfy the citizens’ right
to know what their government is up to” and “FOIA does not obligate an
agency to serve as a research service for persons seeking information that is
readily available to the public.” (quotation omitted)). Regarding defendants’
redaction of the names of certain individuals, we have reviewed the
documents and conclude that the redactions were appropriate for the
reasons stated in the defendants’ verified objection to the motion to compel.
C. Plaintiff’s Request for Attorney’s Fees
In denying the plaintiff’s request for attorney’s fees, the trial court
found that the defendants “did not ‘knowingly’ violate the Right-to-Know Law
and that their search for responsive documents was adequate and
reasonable under the circumstances.” Based on this finding, the trial court
stated that it was unable to find that “the instant action was ‘necessary in
order to enforce compliance with the provisions’ of the Right-to-Know law.”
See RSA 91-A:8, I. Regarding the fact that the defendants produced certain
documents only after the Right-to-Know Law complaint was filed, the trial
court stated: “Because Defendants did not have a legal obligation to turn
over documents in the possession of individual school districts, the fact that
some documents—which were in possession of individual school districts
and schools . . . were turned over after Plaintiff initiated the instant action
does not render their search unreasonable.” The trial court order did not
specifically address the question of whether the defendants’ failure to meet
their self-imposed deadline on the production of responses to Request No. 3,
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or their failure to respond to the plaintiff’s further inquiries about Request
No. 3, violated the Right-to-Know Law.
The plaintiff argues on appeal that the “complete lack of response to
Request No. 3 from July to December 16, 2021 is a clear violation of the
response deadline set forth in RSA 91-A:4, IV,” and, therefore, the trial court
erred when it denied the plaintiff’s request for attorney’s fees. RSA 91-A:8, I,
provides:
If any public body or public agency or officer, employee, or other
official thereof, violates any provisions of this chapter, such
public body or public agency shall be liable for reasonable
attorney’s fees and costs incurred in a lawsuit under this
chapter, provided that the court finds that such lawsuit was
necessary in order to enforce compliance with the provisions of
this chapter or to address a purposeful violation of this chapter.
Fees shall not be awarded unless the court finds that the public
body, public agency, or person knew or should have known that
the conduct engaged in was in violation of this chapter or if the
parties, by agreement, provide that no such fees shall be paid.
Accordingly, an award of attorney’s fees shall be made pursuant to 91-A:8, I,
if the Right-to-Know Law is violated and: (1) the lawsuit was necessary to
make public information available; and (2) the body, agency, or person knew
or should have known that the conduct engaged in was a violation of RSA
chapter 91-A. See WMUR Channel Nine v. N.H. Dep’t of Fish & Game, 154
N.H. 46, 50 (2006).
RSA 91-A:4, IV(a) mandates that an agency make governmental
records
available “immediately,” but the statute also sets forth the procedure to be
followed by the agency if it is unable to make the records immediately
available. RSA 91-A:4, IV(b) provides that, in these circumstances, the
agency shall, within five business days of the Right-to-Know Law request:
“(1) make such record available; (2) deny the request; or (3) provide a written
statement of the time reasonably necessary to determine whether the request
shall be granted or denied and the reason for the delay.” As we have stated,
“the time period for responding to a Right-to-Know request is absolute.” ATV
Watch v. N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434, 440 (2007)
(interpreting prior version of the statute).
In this case, Ryan emailed the plaintiff on July 7, 2021, within
five business days of the request, stating that the defendants would
need an additional 45 days to respond to Request No. 3. Ryan emailed
the plaintiff again on July 16, 2021, indicating that he still intended to
provide documents responsive to Request No. 3 within the 45 days.
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Thereafter, Ryan did not communicate with the plaintiff at all
regarding Request No. 3, despite receiving an email from the plaintiff
on August 23, 2021, reminding him of the 45-day deadline to respond
to Request No. 3 and receiving another email from the plaintiff on
August 27, 2021, asserting that the defendants were in violation of
RSA 91-A:4. The plaintiff filed the Right-to-Know Law complaint on
September 28, 2021, but documents responsive to Request No. 3 were
not provided until after the hearing on the motion to dismiss. At no
point did the defendants assert that they were not required to produce
documents responsive to Request No. 3; they simply stopped
responding to the plaintiff’s inquiries and provided documents only
after the trial court order setting a deadline for them to do so. Having
provided the plaintiff with a statement of the time by which the
defendants would provide a response to Request No. 3, the defendants
were, at the least, obligated to respond to the plaintiff’s subsequent
inquiries about the production and explain why they were unable to
meet the deadline and state how much more time would be required.
Under these circumstances, we conclude that the lawsuit was
necessary to make public information available. We also conclude that
the defendants “knew or should have known” that they were in
violation of RSA chapter 91-A. RSA 91-A:8, I. Accordingly, we
conclude that the trial court erred when it denied the plaintiff’s
request for attorney’s fees.
The defendants argue that the time it took them to respond to
the plaintiff’s Right-to-Know Law requests was not unreasonably long
because they provided a prompt production of the documents
responsive to Request Nos. 1, 2, 4, 5, 6, 7, and 8, and that, “with
respect to the request for two years-worth of emails involving
numerous ‘SAU Officers’ it simply took [defendants] longer.” (Emphasis
omitted.) We are not unsympathetic to the challenges faced by the
defendants, particularly given that they were required to respond to
this request while, in their words, they were in the midst of “one of the
most challenging school years in modern history—dealing with the
pandemic and the struggles of remote and hybrid learning.” However,
in ruling that the plaintiff is entitled to an award of attorney’s fees, we
do not conclude that the defendants took an unreasonably long time to
produce the responsive documents. Rather, we conclude that having
set a deadline for themselves of 45 days, it was incumbent upon them
to respond to the plaintiff’s subsequent inquiries after they failed to
meet that self-imposed deadline.
In light of our conclusion that the trial court did not err in finding that
the defendants had complied with the Right-to-Know Law with respect to
Request Nos. 1, 2, 4, 5, 6, 7, and 8, the plaintiff is not entitled to recover any
attorney’s fees attributable to claims made regarding those requests. On
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remand, the trial court shall award to the plaintiff only those attorney’s fees
incurred as a consequence of having to file a lawsuit to compel the
production of documents in response to Request No. 3.
The plaintiff’s request in his brief for an award of appellate attorney’s
fees and costs is denied without prejudice. The plaintiff may renew this
request by filing a properly supported motion for appellate fees and costs
with this court on or before December 7, 2023.
Affirmed in part; reversed in part;
and remanded.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred; HOURAN,
J., retired superior court justice, specially assigned under RSA 490:3, sat for
oral argument but did not participate in the final vote, see N.H. CONST. pt.
II, art. 78.
Timothy A. Gudas,
Clerk
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