New Hampshire Right to Life & a. v. Director, New Hampshire Charitable Trusts Unit & a.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 2015-0366
NEW HAMPSHIRE RIGHT TO LIFE & a.
v.
DIRECTOR, NEW HAMPSHIRE CHARITABLE TRUSTS UNIT & a.
Argued: January 13, 2016
Opinion Issued: June 2, 2016
Wadleigh, Starr & Peters, PLLC, of Manchester (Michael J. Tierney on the
brief and orally), for the plaintiffs.
Joseph A. Foster, attorney general (Megan A. Yaple, attorney, and
Lynmarie Cusack, assistant attorney general, on the brief, and Ms. Yaple
orally), for the defendants.
BASSETT, J. The plaintiffs, New Hampshire Right to Life and Jackie
Pelletier, appeal orders by the Superior Court (Mangones, J.) granting in part
and denying in part their petition for an order requiring the defendants, the
Director, Charitable Trusts Unit (CTU), the Office of the New Hampshire
Attorney General (AG), the New Hampshire Board of Pharmacy (Board of
Pharmacy), and the New Hampshire Department of Health and Human
Services (DHHS), collectively referred to as “the State,” to produce, under the
Right-to-Know Law, without redaction, all documents and other materials
responsive to the plaintiffs’ prior requests. See RSA ch. 91-A (2013 & Supp.
2015). The trial court ordered the State to produce certain documents, but
upheld the State’s withholding or redactions of other documents because it
determined that they were exempt from disclosure under the Right-to-Know
Law. See RSA 91-A:5, IV (2013). On appeal, the plaintiffs argue that in so
deciding and in denying their associated requests for attorney’s fees and costs,
the trial court erred. We affirm in part, reverse in part, vacate in part, and
remand.
I. Background
The relevant facts follow. New Hampshire Right to Life “is a New
Hampshire non-profit organization opposed to government support, by
taxpayer subsidies, of medical clinics that provide abortion services.” Appeal of
N.H. Right to Life, 166 N.H. 308, 310 (2014). At issue are three Right-to-Know
requests that the plaintiffs made of the State in July 2014 and September 2014
for documents and materials related to Planned Parenthood of Northern New
England (PPNNE) and/or its New Hampshire clinics. At oral argument, the
parties agreed that any issues regarding a fourth Right-to-Know request are
now moot. According to a declaration (a sworn statement filed as a pleading
with a court), and not apparently disputed by the plaintiffs, PPNNE is a private,
non-profit organization affiliated with Planned Parenthood Federation of
America (Planned Parenthood). See Right to Life v. Dept. of Health & Human
Serv’s, 778 F.3d 43, 49 (1st Cir.), cert. denied, 136 S. Ct. 383 (2015); see also
Ramelb, Note, Public Health Care Funding: The Battle Over Planned
Parenthood, 47 Val. U. L. Rev. 499, 510 (2013). Planned Parenthood provides
“medical services related to family planning, men and women’s sexual health,
and abortions.” Ramelb, supra at 510. PPNNE operates reproductive health
care clinics in six New Hampshire municipalities — Claremont, Derry, Exeter,
Keene, Manchester, and West Lebanon. Right-to-Life, 778 F.3d at 46.
The first request, sent on July 14, 2014, sought “copies of all of
[PPNNE’s] 2014-2015 [Limited Retail Drug Distributorship] licenses for its six
New Hampshire clinics” and “any documents related to these clinics either sent
or received by the Board [of Pharmacy].” (Bolding omitted.) See RSA 318:42,
VII, :51-b (2015). PPNNE has operated in New Hampshire for a number of
years as a licensed limited retail drug distributor pursuant to a contract with
DHHS. Appeal of N.H. Right to Life, 166 N.H. at 310; see RSA 318:42, VII,
:51-b. As a limited retail drug distributor, PPNNE must reapply annually to the
Board of Pharmacy to renew its licenses, the terms of which run from July 1 to
June 30 of each year. Appeal of N.H. Right to Life, 166 N.H. at 310.
The State responded to this request on July 31, 2014, by producing
certain documents and withholding others as “exempt from disclosure under
RSA 91-A:5 and RSA 318:30, I.” See RSA 91-A:5 (Supp. 2015) (setting forth
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categories of information that are exempt from disclosure under the Right-to-
Know Law); see also RSA 318:30, I (2015) (exempting from disclosure, under
the Right-to-Know Law, Board of Pharmacy investigations and information
discovered pursuant to such investigations “unless such information becomes
the subject of a public disciplinary hearing”). The State’s decision to exempt
certain documents from disclosure pursuant to RSA 318:30, I, is not at issue
in this appeal.
The second request, sent on July 28, 2014, sought “all documents, no
matter what form, including but not limited to, printed documents, electronic
documents, e-mails, or any other form of documents,” that constitute: (1)
communications “by, from or regarding” certain reproductive health centers
and individuals representing such centers; (2) “[a]ny and all documents in the
possession of the [AG] regarding any reproductive health facility”; (3) certain
specific materials, including “DVDs containing security camera footage from
July 10, 2014 and July 17, 2014 outside the Manchester clinic”; and (4) “[a]ny
and all documents in the possession of the [AG] regarding abortion clinic buffer
zones, reproductive health center patient safety zones, RSA 132:37 to 39 in
New Hampshire or in any other State.” The State responded to the plaintiffs’
second request on September 4, 2014, producing some documents and
informing the plaintiffs that other documents had been redacted or withheld
because they contained information exempt from disclosure under RSA 91-A:5,
IV.
The third request, made on September 11, 2014, sought specified
financial information about certain reproductive health clinics. The State
produced some information, but, with regard to the 2010 financial statements
of the Joan G. Lovering Health Center (Feminist Health Center), it redacted
certain monetary amounts.
The plaintiffs filed the within complaint for injunctive relief, attorney’s
fees, and costs on October 20, 2014. Subsequently, the State provided to the
trial court for in camera review approximately 1,500 pages of documents and
three DVDs. The documents and materials provided to the trial court
comprised those that had been produced to the plaintiffs and those that had
been withheld from disclosure. The State also provided to the court and to the
plaintiffs a “Table of Contents,” listing the previously-produced documents with
corresponding “bates-stamp” numbers1 and the withheld documents with
corresponding bates-stamp numbers. Following its in camera review of the
information withheld or redacted, and after holding a hearing, the trial court
ordered the State to produce certain documents and information, but upheld
most of the State’s decisions to redact or withhold. This appeal followed. The
1 A bates-stamp number is “[t]he identifying number or mark affixed to a document or to the
individual pages of a document in sequence, usu[ally] by numerals but sometimes by a
combination of letters or numerals.” Black’s Law Dictionary 181 (10th ed. 2014).
3
parties have not provided a transcript of the trial court hearing as part of the
appellate record. The record does not indicate whether the hearing was an
evidentiary hearing.
After this appeal was filed, we ordered the plaintiffs to identify, by bates-
stamp number, information that had been submitted to the trial court for in
camera review, but which they assert should have been, and was not,
disclosed. In a January 12, 2016 letter, the plaintiffs identified the following as
the documents and materials “at issue, addressed and argued in the Briefs”:
(1) three DVDs containing security footage of the area outside of the
Manchester office of PPNNE; and (2) documents bates-stamped W305-06
(declaration of Meagan Gallagher), W1475-76 (e-mail communications between
AG and clinic officials), W36-294 (e-mail communications between AG and
such offices in other states), W33-35 (correspondence regarding the DVDs),
P31-56 (license renewal applications filed with the Board of Pharmacy), and
P105-20 (documents related to the Feminist Health Center).
Thereafter, we ordered the superior court to transfer to this court the un-
redacted versions of the documents and materials so identified. Our analysis
in this case is limited to the DVDs and documents that the plaintiffs identified
by bates-stamp number in their January 12, 2016 letter. Although, in their
January letter, the plaintiffs also objected to the State’s claim of work product
and attorney-client privilege for unknown withheld documents, they have not
briefed that issue, and, accordingly, we deem it to be waived on appeal. See
Aubert v. Aubert, 129 N.H. 422, 428 (1987) (“Arguments not briefed are waived
on appeal.”).
II. Analysis
A. General Law and Standard of Review
Resolution of this case requires that we interpret the Right-to-Know Law.
“The ordinary rules of statutory construction apply to our review of the Right-
to-Know Law.” CaremarkPCS Health v. N.H. Dep’t of Admin. Servs., 167 N.H.
583, 587 (2015) (quotation omitted). “Thus, we are the final arbiter of the
legislature’s intent as expressed in the words of the statute considered as a
whole.” Id. (quotation omitted). “When examining the language of a statute,
we ascribe the plain and ordinary meaning to the words used.” Id. (quotation
omitted). “We interpret 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). “We also
interpret a statute in the context of the overall statutory scheme and not in
isolation.” Id. (quotation omitted).
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
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bodies, and their accountability to the people.” RSA 91-A:1 (2013); see
CaremarkPCS Health, 167 N.H. at 587. Thus, the Right-to-Know Law furthers
“our state constitutional requirement that the public’s right of access to
governmental proceedings and records shall not be unreasonably restricted.”
Montenegro v. City of Dover, 162 N.H. 641, 645 (2011); see N.H. CONST. pt. I,
art. 8. “Although the statute does not provide for unrestricted access to public
records, we resolve 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.” CaremarkPCS Health, 167 N.H. at 587 (quotation
omitted). “As a result, we broadly construe provisions favoring disclosure and
interpret the exemptions restrictively.” Id. (quotation omitted). We also look to
the decisions of other jurisdictions interpreting similar acts for guidance,
including federal interpretations of the federal Freedom of Information Act
(FOIA). 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 660 (2012).
Such similar laws, because they are in pari materia, are “interpretatively
helpful, especially in understanding the necessary accommodation of the
competing interests involved.” Montenegro, 162 N.H. at 645 (quotation
omitted).
“When a public entity seeks to avoid disclosure of material under the
Right-to-Know Law, that entity bears a heavy burden to shift the balance
toward nondisclosure.” Id. at 649. We review the trial court’s statutory
interpretation and its application of law to undisputed facts de novo. 38
Endicott St. N., 163 N.H. at 660.
At issue in this case is RSA 91-A:5, which identifies materials that are
exempt from disclosure under the Right-to-Know Law, including “confidential,
commercial, or financial information . . . and other files whose disclosure would
constitute invasion of privacy.” RSA 91-A:5, IV. The plaintiffs contend that the
trial court misapplied RSA 91-A:5, IV when it upheld the State’s withholding of
information that the State contended: (1) comprised attorney work product; or
(2) if disclosed, would constitute an invasion of privacy.
B. Information Withheld as Attorney Work Product
The information that the State withheld on work product grounds is
related to a pending federal civil rights action brought pursuant to 42 U.S.C.
§ 1983 (2012) challenging the constitutionality, facially and as applied, of RSA
132:38 (2015). See Verified Complaint at 13-22, Mary Rose Reddy & a. v.
Joseph Foster & a., No. 1:14-cv-00299-JL (D.N.H. July 7, 2014), ECF No. 1.2
2On April 1, 2016, the Federal District Court for the District of New Hampshire dismissed the
plaintiffs’ complaint on the ground that they lacked standing to bring it. See Corrected Opinion
and Order at 35-36, Mary Rose Reddy & a. v. Joseph Foster & a., No. 1:14-cv-00299-JL (D.N.H.
Apr. 1, 2016), ECF No. 83. The plaintiffs have appealed that decision to the First Circuit Court of
Appeals. See Notice of Appeal, Mary Rose Reddy & a. v. Joseph Foster & a., No. 16-1432 (1st Cir.
Apr. 21, 2016), ECF No. 86.
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RSA 132:38, I, provides that, during the business hours of a reproductive
health care facility, “[n]o person shall knowingly enter or remain on a public
way or sidewalk adjacent to” such a facility “within a radius up to 25 feet of
any portion of an entrance, exit, or driveway of” that facility. See RSA 132:38,
IV. For ease of reference, we refer to the federal litigation as the “buffer zone
litigation.”
The documents and materials at issue were created in anticipation of a
preliminary injunction hearing in that litigation. However, the hearing never
took place because the litigation was stayed before it could be held. Pelletier, a
plaintiff in this case, is also a plaintiff in the buffer zone litigation. See Verified
Complaint, supra at 1.
The plaintiffs specifically challenge the trial court’s determination that
the following are exempt from disclosure because they constitute attorney work
product: (1) a signed, undated draft declaration of Meagan Gallagher,
President and Chief Executive Officer of PPNNE, (the Gallagher declaration)
(W305-06); (2) July 2014 e-mail messages between the AG and Jennifer
Frizzell, Vice-President for Public Policy of PPNNE, and between the AG and
Dalia Vidunas, the Executive Director of the Concord Feminist Health Center
(W1475-76); and (3) e-mail messages between the AG and counterparts in
other States (W36-294).
1. Summary of Work Product Law
The parties do not dispute, and we agree with the trial court, that
attorney work product, like communications protected by the attorney-client
privilege, falls within the Right-to-Know Law exemption for “confidential”
information. RSA 91-A:5, IV; see Prof. Fire Fighters of N.H. v. N.H. Local Gov’t
Ctr., 163 N.H. 613, 614-15 (2012) (explaining that “[c]ommunications protected
under the attorney-client privilege fall within the exemption for confidential
information”); see also FTC v. Grolier Inc., 462 U.S. 19, 23 (1983) (interpreting
FOIA to exempt from disclosure information subject to the attorney work
product doctrine).
The trial court applied New Hampshire common law to determine
whether the challenged documents were subject to the work product doctrine.
In so doing, the trial court erred. The buffer zone litigation was pending in the
Federal District Court for the District of New Hampshire under that court’s
federal question jurisdiction. See Verified Complaint, supra at 3. Accordingly,
federal common law governs whether the documents challenged by the
plaintiffs are subject to the work product doctrine. See Gargiulo v. Baystate
Health, Inc., 826 F. Supp. 2d 323, 325 (D. Mass. 2011) (observing that “[w]ith
federal question jurisdiction, courts usually apply federal [privilege] law to the
federal claims and pendent state law claims”); Smith v. Alice Peck Day
Memorial Hosp., 148 F.R.D. 51, 53 (D.N.H. 1993) (same); Fed. R. Ev. 501.
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Thus, as a matter of comity with the federal court, and to ensure that the
Right-to-Know Law is not used as a means of circumventing the civil discovery
rules that govern the buffer zone litigation, we apply federal common law.
Although the trial court did not apply federal common law in its analysis, we do
so in the first instance because we review de novo the trial court’s application
of law to undisputed facts. 38 Endicott St. N., 163 N.H. at 660.
The work product doctrine safeguards the work of an attorney done “in
anticipation of, or during, litigation from disclosure to the opposing party.”
State of Maine v. U.S. Dept. of Interior, 298 F.3d 60, 66 (1st Cir. 2002); see
Hickman v. Taylor, 329 U.S. 495, 508-13 (1947) (declaring that witness
interviews conducted by opposing counsel in preparation for litigation are
protected by a qualified privilege); see also Fed. R. Civ. P. 26(b)(3). The doctrine
encompasses work done by non-lawyers at the direction of lawyers. United
States v. Nobles, 422 U.S. 225, 238-39 (1975).
Outside the FOIA context, federal courts “distinguish between ‘opinion’
work product and ‘ordinary’ work product,” and they “typically afford ordinary
work product only a qualified immunity, subject to a showing of substantial
need and undue hardship, while requiring a hardier showing to justify the
production of opinion work product.” In re San Juan Dupont Plaza Hotel Fire
Litigation, 859 F.2d 1007, 1014, 1015 (1st Cir. 1988); see Hickman, 329 U.S.
at 511-13. Opinion work product “encompass[es] materials that contain the
mental impressions, conclusions, opinions or legal theories of an attorney,” and
ordinary work product “embrac[es] the residue.” In re San Juan Dupont Plaza
Hotel Fire Litigation, 859 F.2d at 1014; see Hickman, 329 U.S. at 511-13.
However, for FOIA purposes, the distinction between “opinion” and
“ordinary” work product is immaterial. See FTC, 462 U.S. at 26-27; 38
Endicott St. N., 163 N.H. at 660 (explaining that we look to federal
interpretations of the federal FOIA when construing the Right-to-Know Law).
This is so because the test for disclosure under FOIA “is whether the
documents would be routinely or normally disclosed upon a showing of
relevance.” FTC, 462 U.S. at 26 (quotations omitted). Necessarily, information
that is protected from discovery under a qualified privilege is not “routinely or
normally disclosed upon a showing of relevance.” Id. (quotations omitted). As
the Supreme Court has explained, for FOIA purposes, “[i]t makes little
difference whether a privilege is absolute or qualified in determining how it
translates into a discrete category of documents that Congress intended to
exempt from disclosure under [FOIA]. Whether its immunity from discovery is
absolute or qualified, a protected document cannot be said to be subject to
routine disclosure.” Id. at 27 (quotation omitted); see A. Michael’s Piano, Inc. v.
F.T.C., 18 F.3d 138, 146 (2d Cir. 1994). “This approach prevents . . . FOIA
from being used to circumvent civil discovery rules.” U.S. Dep’t of Justice,
Guide to the Freedom of Information Act, Exemption 5, at 3 (2013 ed.),
available at https://www.justice.gov/sites/default/files/oip/legacy/2014/07/
7
23/exemption5.pdf; see United States v. Weber Aircraft Corp., 465 U.S. 792,
801 (1984) (explaining that a party cannot “obtain through . . . FOIA material
that is normally privileged” because this “would create an anomaly in that . . .
FOIA could be used to supplement civil discovery,” which is a construction of
FOIA that the Court has “consistently rejected”).
We adopt this paradigm in the context of the Right-to-Know Law based
upon similar concerns that the Right-to-Know Law could be used to circumvent
civil discovery rules. Indeed, at oral argument, the plaintiffs agreed that the
Right-to-Know Law should not be used to circumvent civil discovery rules.
Thus, we hold that the test for disclosure under the Right-to-Know Law “is
whether the documents would be routinely or normally disclosed upon a
showing of relevance.” FTC, 462 U.S. at 26 (quotations omitted). Accordingly,
because documents protected by work product are not “routinely or normally
disclosed upon a showing of relevance,” they are exempt from disclosure under
the Right-to-Know Law. Id. (quotations omitted).
2. Gallagher Declaration
The Gallagher declaration contains factual assertions about PPNNE,
interpretations of RSA 132:38 (the buffer zone statute), statements about
Gallagher’s authority within PPNNE, and statements about PPNNE’s intentions
with regard to creating buffer zones as authorized by statute. The record on
appeal establishes that the declaration was prepared at the direction of
attorneys at the Attorney General’s Office for use in the buffer zone litigation.
Applying state law, the trial court found that the Gallagher declaration is
subject to the work product doctrine because, although it “includes some
purely factual information,” it “also contains [Gallagher’s] policy statements
and opinions.” See State v. Chagnon, 139 N.H. 671, 676 (1995) (explaining, in
the context of a criminal case, that “[w]itness statements that contain purely
factual information should not be considered work product,” but “[i]f a report
also includes notes of the investigator or attorney recording his or her analysis,
mental process, impressions of what the witness said, or reflecting trial
strategy, such notes would fall within the work product doctrine and could be
redacted”). The trial court determined that, although the opinions were not
those of the attorney who prepared the declaration, the inclusion of such
statements “in a draft pleading may provide insight into the [AG’s] litigation
strategy in the ongoing federal litigation.” The trial court further determined
that the declaration was “not merely a witness statement or notes from a
witness interview,” but, instead, was “essentially a draft pleading for
submission into evidence at a hearing in . . . pending litigation.” The court
noted that the plaintiffs in the buffer zone litigation “would likely not have been
able to discover this [declaration] prior to its introduction into evidence in that
litigation.”
8
We conclude that the Gallagher declaration is subject to the work
product doctrine under federal law, and, therefore, agree with the trial court
that it is exempt from disclosure under the Right-to-Know Law. See Doyle v.
Comm’r, N.H. Dep’t of Resources & Economic Dev., 163 N.H. 215, 222 (2012)
(acknowledging that when “the trial court reaches the correct result on
mistaken grounds, we will affirm if valid alternative grounds support the
decision” (quotation omitted)). The declaration was prepared at the direction of
attorneys at the Attorney General’s Office for use in the buffer zone litigation
and, as such, constitutes attorney work product. See In re San Juan Dupont
Plaza Hotel Fire Litigation, 859 F.2d at 1016 (explaining that draft pleadings
constitute only ordinary attorney work product because they are “drawn with
the realization that they will be served upon the other parties to the case”); see
also Nobles, 422 U.S. at 238-39 (determining that the work product doctrine
protects documents drafted by non-attorneys at an attorney’s direction).
Accordingly, although we apply federal law and the trial court applied state
law, we reach the same conclusion as the trial court reached — the Gallagher
declaration is subject to the work product doctrine. We, therefore, agree with
the trial court that the Gallagher declaration was properly withheld from
disclosure under the Right-to-Know Law. See FTC, 462 U.S. at 26-27; see also
Doyle, 163 N.H. at 222.
Contrary to the plaintiffs’ assertions, the entire Gallagher declaration is
exempt from disclosure under the Right-to-Know Law, even though it arguably
contains some “purely factual information.” Federal courts have held that the
work product doctrine encompasses purely factual information. See Norwood
v. F.A.A., 993 F.2d 570, 576 (6th Cir. 1993) (acknowledging that the work
product doctrine protects factual material); see also Church of Scientology
Intern. v. U.S. Dept. of Justice, 30 F.3d 224, 237 n.20 (1st Cir. 1994) (noting
that “factual material contained within a document subject to the work product
privilege often will be embraced within the privilege”).
Moreover, even if the Gallagher declaration constitutes only “ordinary”
work product, and, therefore, would be discoverable under federal rules of civil
procedure upon a showing of substantial need, the Right-to-Know Law does not
mandate disclosure. See A. Michael’s Piano, Inc., 18 F.3d at 146 (explaining
that “[a]lthough factual materials falling within the scope of attorney work
product” may be discovered in non-FOIA cases upon a showing of substantial
need, under FOIA, “the test is whether information would routinely be
disclosed in private litigation” (quotations omitted)); Martin v. Office of Special
Counsel, MSPB, 819 F.2d 1181, 1187 (D.C. Cir. 1987) (ruling that FOIA
exemption for attorney work product protects documents regardless of whether
they contain purely factual information and concluding that FOIA did not
mandate disclosure of signed witness statements or of attorney’s interview
notes because such documents constituted attorney work product); Manna v.
U.S. Dept. of Justice, 815 F. Supp. 798, 814 (D.N.J. 1993) (observing that
“factual work-product materials are immune from disclosure” under FOIA),
9
aff’d, 51 F.3d 1158 (3d Cir. 1995); United Technologies Corp. v. N.L.R.B., 632
F. Supp. 776, 781 (D. Conn. 1985) (ruling that, if a document is attorney work
product, then the entire document is privileged from disclosure under FOIA,
even though it contains non-privileged factual material).3
The plaintiffs further assert that any privilege was waived when PPNNE
“shared” the Gallagher declaration with the AG, which did not represent PPNNE
in the federal litigation. As previously discussed, however, PPNNE prepared the
declaration at the direction of the AG. Moreover, although PPNNE was not a
party in the buffer zone litigation, the attorney general was one of the
defendants. In this context, there was no “waiver” of the work product
doctrine. See Nobles, 422 U.S. at 238-39 (explaining that the work product
doctrine extends to work performed by non-attorneys at the direction of
attorneys).
3. E-mail messages to and from Frizzell and Vidunas
The July 2014 e-mail messages between the AG and Frizzell concerned
the preparation of the Gallagher declaration. The e-mail messages between the
AG and Vidunas concerned the preparation, for the buffer zone litigation, of an
affidavit of another individual. The trial court found that the e-mail messages
were properly withheld because they were subject to the attorney-client
privilege and/or because they constituted attorney work product.
The plaintiffs conclude, without any analysis, that the messages do not
constitute attorney work product. The plaintiffs contend that, even if they do
constitute attorney work product, “any privilege [was] waived” because they
were communications between the AG and individuals who are not parties to
the buffer zone litigation. We disagree. The e-mail messages were created for
the buffer zone litigation either by attorneys at the Attorney General’s Office or
at their direction. The subject of the e-mail messages was the preparation of
pleadings for that litigation. The e-mail messages, thus, constituted attorney
work product, and, in this context, no “waiver” occurred. See Nobles, 422 U.S.
at 238-39. Given our conclusion, we need not address whether the e-mail
messages were also subject to the attorney-client privilege.
3 Although the First Circuit has not ruled directly upon this issue, it has cited A. Michael’s Piano,
Inc., 18 F.3d at 146, and Martin, 819 F.2d at 1186, with approval. See Church of Scientology
Intern., 30 F.3d at 237 n.20 (explaining that “factual material contained within a document
subject to the work product privilege often will be embraced within the privilege, and thus be
exempt from disclosure”).
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4. E-mail messages to and from AG and Offices of Attorneys
General in Other States
The e-mail messages at issue, which were exchanged between the AG
and offices of attorneys general in other States, were created in connection with
a case then pending before the United States Supreme Court: McCullen v.
Coakley, 134 S. Ct. 2518 (2014). The e-mail messages include draft amicus
briefs prepared for McCullen and concern the process by which the AG decided
whether to join or file amicus briefs in that case.
The trial court found that these e-mail messages were properly withheld
as “confidential” information because they constituted attorney work product
and/or privileged attorney-client communications. RSA 91-A:5, IV. Because
these e-mail messages contain the “mental impressions, conclusions, opinions
or legal theories of an attorney,” In re San Juan Dupont Plaza Hotel Fire
Litigation, 859 F.2d at 1014 (quotation omitted); see Hickman, 329 U.S. at
511-13, in connection with the McCullen litigation, we hold that they
constitute opinion work product, and were properly withheld from disclosure
under the Right-to-Know Law.
To the extent that the plaintiffs argue that any work product privilege
was waived because “the state of New Hampshire did not ultimately join other
States in filing an amicus brief” in the McCullen litigation, we disagree. “The
prevailing rule is that, because work product protection is provided against
adversaries, only disclosing material in a way inconsistent with keeping it from
an adversary waives work product protection.” Bourne v. Arruda, Civil No.
10–cv–393–LM, 2012 WL 2891099, at *3 (D.N.H. July 16, 2012) (quotations
and ellipsis omitted); see United States v. Massachusetts Institute of
Technology, 129 F.3d 681, 687 (1st Cir. 1997). Based upon the record before
us, we cannot say that the exchange of e-mail messages between the AG and
such offices in other states was inconsistent with keeping those messages, and
the documents they referenced, from the plaintiffs in the buffer zone litigation.
Having decided that these e-mail messages constitute attorney work product,
we need not address whether they also constitute privileged attorney-client
communications.
C. Information Withheld on Privacy Grounds
The plaintiffs next assert that the State wrongfully withheld certain
information on privacy grounds. The Right-to-Know Law specifically exempts
from disclosure “files whose disclosure would constitute invasion of privacy.”
RSA 91-A:5, IV. This section of the Right-to-Know Law “means that financial
information and personnel files and other information necessary to an
individual’s privacy need not be disclosed.” Lamy v. N.H. Public Utils. Comm’n,
152 N.H. 106, 109 (2005) (quotation omitted).
11
We engage in a three-step analysis when considering whether disclosure
of public records constitutes an invasion of privacy under RSA 91-A:5, IV. Id.First, we evaluate whether there is a privacy interest that would be invaded by
the disclosure. Id. If no privacy interest is at stake, the Right-to-Know Law
mandates disclosure. Id. Whether information is exempt from disclosure
because it is private is judged by an objective standard and not by a party’s
subjective expectations. Id.Next, we assess the public’s interest in disclosure. Id. Disclosure of the
requested information should inform the public about the conduct and
activities of their government. Id.Finally, we balance the public interest in disclosure against the
government interest in nondisclosure and the individual’s privacy interest in
nondisclosure. Id. “When the exemption is claimed on the ground that
disclosure would constitute an invasion of privacy, we examine the nature of
the requested document and its relationship to the basic purpose of the Right-
to-Know Law.” N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437,
440 (2003) (quotation and ellipsis omitted).
The purpose of the Right-to-Know Law is to provide the utmost
information to the public about what its “government is up to.” Union Leader
Corp. v. City of Nashua, 141 N.H. 473, 476 (1996) (quoting EPA v. Mink, 410
U.S. 73, 105 (1973) (Douglas, J., dissenting), superseded by statute on other
grounds); see Department of Defense v. FLRA, 510 U.S. 487, 497 (1994)
(explaining that “the only relevant public interest in the FOIA balancing
analysis [is] the extent to which disclosure of the information sought would
shed light on an agency’s performance of its statutory duties or otherwise let
citizens know what their government is up to” (quotations and brackets
omitted)). “[T]he central purpose of the Right-to-Know Law is to ensure that
the Government’s activities be opened to the sharp eye of public scrutiny, not
that information about private citizens that happens to be in the warehouse of
the Government be so disclosed.” Lamy, 152 N.H. at 113 (quotation omitted);
see U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 774 (1989)
(same under FOIA). “If disclosing the information does not serve this purpose,
disclosure will not be warranted even though the public may nonetheless
prefer, albeit for other reasons, that the information be released.” Lamy, 152
N.H. at 111 (quotation omitted).
“The party resisting disclosure bears a heavy burden to shift the balance
toward nondisclosure.” N.H. Civil Liberties Union, 149 N.H. at 440. Thus, in
this case, our review focuses upon whether the State “has shown that the
records sought will not inform the public” about the State’s activities, “or that a
valid privacy interest, on balance, outweighs the public interest in disclosure.”
Id. When the facts are undisputed, “we review the trial court’s balancing of the
12
public’s interest in disclosure and the interests in nondisclosure de novo.”
Lamy, 152 N.H. at 109 (quotation omitted).
The plaintiffs specifically challenge the State’s decision to withhold the
following on privacy grounds: (1) three DVDs; (2) correspondence regarding the
DVDs (W33-35); (3) the names of employees contained in license renewal
applications filed with the Board of Pharmacy (P31-56); and (4) information
contained in documents from the Feminist Health Center (P105-20).
1. DVDs
The DVDs contain footage from several security cameras at the
Manchester office of PPNNE. According to the State, it obtained the DVDs from
PPNNE in connection with the buffer zone litigation.
The DVDs show three different views of the sidewalk adjacent to the
PPNNE parking lot on July 10, 2014, and July 17, 2014, for a few hours on
each day. The DVDs show individual protestors walking on the sidewalk. The
protestors are shown talking to individuals, who appear to be in the parking lot
and are not seen on camera. The parking lot is partially bordered by a fence.
The protestors are shown walking on the sidewalk next to the parking lot. The
DVDs do not show protestors in the parking lot or near the building entrance.
The building entrance is on the opposite side of the parking lot from the
sidewalk on which the protestors are shown walking.
The DVDs also show passersby walking on the sidewalk who have no
apparent connection to PPNNE. Occasionally, individuals are shown walking
into the parking lot, however, the nature of their connection to PPNNE, if any,
is not obvious. The only individuals whose relationship to PPNNE is readily
ascertainable from the DVD footage are the protestors.
The DVDs also show vehicles that are entering, exiting, or parked in the
lot or adjacent to the lot. The license plates of some, but not all, of those
vehicles are visible. The DVDs show only the entrance to the parking lot. They
do not show the building entrance.
The trial court concluded that “the DVDs should be protected from
disclosure based on concerns for the personal privacy of individuals depicted in
the videos.” The trial court found that the State had articulated “a valid
privacy interest at stake—the identity of [PPNNE] patients and clients.” It also
found that the PPNNE patients and clients shown on the DVDs “have a privacy
interest in the health care providers from whom they choose to seek
treatment.”
The trial court further found that there was no “sufficient specific public
interest in the disclosure of the DVD footage.” The trial court stated that it
13
could not “discern how the contents of th[e] DVDs would shed light on the
activities and conduct” of the AG or of any other governmental entity.
Accordingly, the trial court determined that “[t]he privacy interest[s] of
individual[s] seeking treatment” from PPNNE substantially outweighed “this
minor or nonexistent public interest.”
We begin by assessing whether there is a privacy interest at stake. We
conclude that the non-protesting individuals shown, or whose vehicles are
shown, on the DVDs have at least some privacy interest in controlling the
dissemination of the DVD footage. See id. at 110; see also Planned Parenthood
v. Town Bd., 587 N.Y.S.2d 461, 463 (Sup. Ct. 1992) (concluding that disclosure
of police department photos of members of “Operation Rescue” would not
constitute an unwarranted invasion of privacy because “[t]hese individuals seek
notoriety in order to highlight and publicize their position against abortion”).
However, absent further fact-finding by the trial court, we cannot determine
whether those individuals have a heightened privacy interest at stake in the
nondisclosure of the DVD footage. Accordingly, we vacate the trial court’s
order upholding the State’s decision to withhold the DVDs and remand for
further proceedings consistent with this opinion.
“In our society, individuals generally have a large measure of control over
the disclosure of their own identities and whereabouts.” Lamy, 152 N.H. at
110 (quotation omitted); see National Ass’n of Retired Federal Emp. v. Horner,
879 F.2d 873, 875 (D.C. Cir. 1989). The United States Supreme Court has
referred to this as an interest in retaining the “practical obscurity” of private
information that may be publicly available, but difficult to obtain. Reporters
Committee, 489 U.S. at 762 (quotation omitted). Thus, in Lamy, we recognized
that residential customers of Public Service Company of New Hampshire had a
privacy interest in controlling access to their names and home addresses, even
though such information is “often publicly available.” Lamy, 152 N.H. at 110;
see FLRA, 510 U.S. at 500 (finding privacy interest in federal employees’ home
addresses even though they “often are publicly available through sources such
as telephone directories and voter registration lists”); see also Reporters
Committee, 489 U.S at 762, 771 (holding that an individual has a substantial
privacy interest in maintaining the practical obscurity of his or her “rap sheet”
even though events summarized therein “have been previously disclosed to the
public”).
Here, the non-protesting individuals shown, or whose vehicles are
shown, on the DVDs have a privacy interest in controlling access to the DVD
footage. See Lamy, 152 N.H. at 110; see also Advocates for Highway v. Federal
Highway Admin., 818 F. Supp. 2d 122, 129 (D.D.C. 2011) (holding that drivers
in a federal highway administration study had more than a de minimis privacy
interest in their videotaped images because they revealed “personal details,
captured up close and over a prolonged period of time, [which] are not generally
available in the ordinary course of daily life”). Although the DVDs show views
14
from a public sidewalk, “the fact that an event is not wholly private does not
mean that an individual has no interest in limiting disclosure or dissemination
of the information.” Reporters Committee, 489 U.S. at 770 (quotations
omitted). We, thus, disagree with the plaintiffs who assert that “[t]here is no
privacy interest in what can be seen from a public sidewalk.”
The fact that vehicle license plate numbers are publicly displayed is
similarly not dispositive of whether disclosure of the DVD footage implicates
privacy interests. See Jones v. U.S. Dept. of Justice, C/A No. 0:09–2802–RBH–
PJG, 2011 WL 704510, at *4 n.5 (D.S.C. Jan. 24, 2011) (observing that a
license plate number “without any context or private information” does not
constitute “a clearly unwarranted invasion of privacy as contemplated by
FOIA”). The vehicles with visible license plates are shown entering, exiting,
parked in, or near, the parking lot of a reproductive health care facility. If
those vehicles belong to PPNNE patients, then the disclosure of the DVDs
reveals an intimate detail about their lives — namely, that they sought medical
treatment at PPNNE. See National Sec. News Service v. U.S. Dept. of Navy, 584
F. Supp. 2d 94, 96 (D.D.C. 2008) (ruling that the patients listed in hospital
admission records “have a substantial privacy interest in avoiding disclosure of
the fact that they sought medical treatment”); cf. Mans v. Lebanon School Bd.,
112 N.H. 160, 164 (1972) (ruling that, in light of the legislature’s finding that
disclosure of the salaries of public school teachers is not a disclosure of
“intimate details,” such a disclosure does not “constitute an invasion of
privacy” (quotations omitted)). If those vehicles belong to PPNNE employees,
then disclosure of the DVDs could subject the employees to harassment. See
Sensor Systems Support, Inc. v. F.A.A., 851 F. Supp. 2d 321, 333 (D.N.H.
2012). On the other hand, if those vehicles belong to PPNNE vendors, then
disclosure of the DVDs does not implicate heightened privacy concerns. See
Lamy, 152 N.H. at 109 (analyzing whether the business customers of a public
utility have a privacy interest in the nondisclosure of their names and
addresses).
Absent additional information about the individuals shown, or whose
license plates are shown, on the DVDs, we cannot assess whether, in fact, the
DVDs implicate heightened privacy concerns. Nor can we determine the weight
to be given to the privacy interests at stake. Accordingly, it would be
premature for us to analyze whether there is a public interest in disclosure of
the DVDs and, if so, to balance that interest against the privacy interests in
nondisclosure. See id. at 109-10 (explaining that “[a]bsent a privacy interest,
the Right-to-Know Law mandates disclosure”). Rather, we vacate the trial
court’s order upholding the State’s decision to withhold the DVDs and remand
for additional fact-finding and any further proceedings the trial court deems
proper. In those additional proceedings, the parties may address whether the
trial court should require the redaction of the DVD footage so as to allow its
disclosure without compromising the privacy interests of the non-protesting
individuals shown, or whose vehicles are shown, on the DVDs. Cf. DeVere v.
15
State of N.H., 149 N.H. 674, 675-79 (2003) (upholding the determination by the
trial court that disclosing the names and home towns of drivers with low-digit
license plates did not constitute an unwarranted invasion of privacy because
the plaintiff had been ordered not to publish or disclose the information or to
contact the drivers and because individuals with low-digit license plates were
given an opportunity to opt out of the disclosure).
2. Correspondence About the DVDs
The correspondence about the DVDs consists of an undated envelope
addressed to the AG from a Concord law firm and pieces of mostly blank paper
demonstrating that the envelope contained the DVDs. The trial court ruled
that this correspondence was properly withheld for the same reasons as the
DVDs themselves. We conclude that, in so ruling, the trial court erred. The
State does not argue that the correspondence implicates any privacy concerns.
Accordingly, it was not properly withheld on that basis. “If no privacy interest
is at stake, then the Right-to-Know Law mandates disclosure.” Prof’l
Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H. 699, 707 (2010).
3. Individuals’ Names on Licensing Documents
a. Documents
The documents at issue are applications for the renewal of limited retail
drug distributor licenses for the July 1, 2014 to June 30, 2015 licensing
period, filed with the Board of Pharmacy by the Claremont, Derry, Exeter,
Keene, Manchester, and West Lebanon offices of PPNNE and the Greenland
office of the Feminist Health Center. Such licenses allow the clinics to
distribute medication without a pharmacist on site.
Each application lists the name and location of the clinic, its telephone
and fax numbers, whether the clinic’s “specialty” is family planning or sexually
transmitted disease prevention or some other specialty, whether it proposes to
administer or dispense non-controlled drugs, its hours of operation, the
address and telephone number of its medical director, the job title of the
person in charge of drug purchasing, drug dispensing records, and the security
provided at the particular clinic. It requires the signature, under penalties of
perjury, of the responsible party. The PPNNE applications are signed by the
Chief Financial Officer of PPNNE; the Feminist Health Center application is
signed by the center’s executive director.
On each of the PPNNE license renewal applications, the State has
redacted the names of PPNNE’s site managers, medical directors, and
consultant pharmacists. In place of names, the State has inserted titles, such
as “Medical Director” or “Licensed Pharmacist,” or the name “John Doe,” and a
16
corresponding number designation so that the plaintiffs could identify whether
individuals worked at more than one reproductive health care facility.
The Feminist Health Center application includes the name of the site
manager but does not include the name of the medical director, registered
nurse, or consultant pharmacist. The medical director, registered nurse, and
licensed pharmacist are identified as “Medical Director #2,” “Registered Nurse
#1,” and “Licensed Pharmacist #2,” respectively.
b. Prior State Litigation
The 2012-2013 renewal applications submitted by PPNNE locations were
the subject of prior state court litigation between plaintiff New Hampshire Right
to Life and the Board of Pharmacy. In that litigation, as in the instant
litigation, in response to requests under the Right-to-Know Law, the State
provided copies of PPNNE’s license renewal applications with the names of
PPNNE’s site managers, medical directors, and consultant pharmacists for its
Claremont, Derry, Exeter, Keene, and Manchester locations redacted for
privacy reasons. The Superior Court (McNamara, J.) concluded that the State
had “met its burden to demonstrate that there is a privacy interest at stake in
the disclosure of the identities of PPNNE’s site managers, consultant
pharmacists, and medical directors,” because such individuals “have a privacy
interest in their identities.” The court observed that the “release of their
identities could result in harassment, from any member of the public, and/or
safety concerns.”
With respect to the public interest in disclosure, the court concluded that
“[d]isclosing the names of the employees and independent contractors at issue
only provides . . . limited information” with regard to the activities of the Board
of Pharmacy. In response to the assertion that the public had an interest in
knowing “how PPNNE spends the tax money it receives through subsidies,” the
court noted that “PPNNE has not received any State subsidies since 2011 and
has ceased receiving Federal subsidies beginning January 1, 2013.”
Accordingly, the court denied the request for the names of site managers,
medical directors, and consultant pharmacists listed in PPNNE’s applications
for renewed licenses to distribute medication without a pharmacist on site, but
it ordered the State to “provide copies of [those] applications with said
employees labeled appropriately as John Doe 1, John Doe 2, Jane Doe 1, etc.”
This decision was not appealed.
c. Current Litigation
Like the court in the prior state litigation, the trial court in this case
found that the individuals whose names are redacted have a privacy interest
“in their identities and safety.” The court concluded that “[t]his privacy
interest” was “not negated by [the plaintiffs’] arguments.” The trial court then
17
determined that there was only “an attenuated public interest in the specific
identities of employees.” The trial court found that “[e]ven assuming that some
[PPNNE] salaries are being paid by . . . state grant funds, [the plaintiffs have]
not articulated how knowing the identities of particular employees who may or
may not be paid with state funding would shed light on the [Board of
Pharmacy’s] or . . . DHHS’s operations except with respect to how these
agencies are enforcing RSA 318:42, VII.” Because it found that the privacy
interest was “substantial” and the public interest in disclosure was
“attenuated,” the court determined that disclosure of individual employee and
independent contractor names is not required by the Right-to-Know Law.
However, because “regulatory requirements . . . specify that a clinic must
identify its consultant pharmacist and medical director on the [license renewal]
application,” the court decided that “disclosure of such persons’ professional
designation (e.g., M.D. or R.N.) would suffice to demonstrate the extent to
which [the Board of Pharmacy] is approving [license renewal] applications
according to law.”
d. Analysis
1. Privacy Interest
We agree with the trial court that individuals whose names were redacted
have a privacy interest in the nondisclosure of their identities as employees or
independent contractors of the reproductive health care facilities.
“Under some circumstances, individuals retain a strong privacy interest
in their identities, and information identifying individuals may be withheld to
protect that privacy interest.” Sensor Systems Support, Inc., 851 F. Supp. 2d
at 333. One such circumstance is when public identification “could
conceivably subject” those identified to “harassment and annoyance in the
conduct of their official duties and in their private lives.” Id. (quotations
omitted); see also Lesar v. United States Dept. of Justice, 636 F.2d 472, 487
(D.C. Cir. 1980) (FBI agents and informants involved in investigating Dr.
Martin Luther King, Jr. have a privacy interest in the nondisclosure of their
names because publicly identifying them “conceivably could subject them to
annoyance or harassment in either their official or private lives”); Bigwood v.
U.S. Agency for Intern. Development, 484 F. Supp. 2d 68, 77 (D.D.C. 2007)
(concluding that “a person avoiding harm to his life or liberty has a clear
interest in the withholding” of information that would identify him publicly
(quotation omitted)); cf. National Archives and Records Admin. v. Favish, 541
U.S. 157, 171 (2004) (citing Lesar with approval); National Sec. News Service,
584 F. Supp. 2d at 96 (ruling that, in the context of a request for individual
names contained in hospital admission records, “the privacy interest of an
individual in avoiding the unlimited disclosure of his or her name is significant”
(quotations and ellipsis omitted)). Indeed, as one court has observed,
“individuals have an even stronger privacy interest in avoiding physical danger
18
than in the accepted privacy interest in the nondisclosure of their names and
addresses in connection with financial information.” Bigwood, 484 F. Supp. 2d
at 77 (quotation omitted); see Judicial Watch, Inc. v. Food & Drug Admin., 449
F.3d 141, 153 (D.C. Cir. 2006).
The plaintiffs argue that the record does not support the trial court’s
finding that the clinic employees have a privacy interest in their “identities and
safety.” To the contrary, the record includes a police incident report from
March 2013 regarding a “Pro-life Protest Event” in which “somewhere between
150 and 200” individuals protested at the entrance to PPNNE’s Manchester
office. (Bolding omitted.) The report indicates that the sidewalk around the
perimeter of the office was “congested” and that the employee entrance was
“somewhat obstructed by [a] circulating group of protester[s].” Additionally, the
plaintiffs’ own exhibits include a newspaper article regarding New Hampshire
Right to Life’s 2015 “March for Life” in Concord, in which “hundreds of
supporters from across the state . . . marched down Main Street past the
Concord Feminist Health Center.” When it passed the buffer zone statute in
2014, the New Hampshire Legislature found that “[r]ecent demonstrations
outside of reproductive health care facilities have caused patients and
employees of these facilities to believe that their safety and right to privacy are
threatened.” Laws 2014, 81:1.
Moreover, as one court has recognized, the “history of violence associated
with the provision of [such] services is undeniable.” Glenn v. Maryland Dept. of
Health and Mental Hygiene, 132 A.3d 245, 251 (Md. 2016); see Judicial Watch,
Inc., 449 F.3d at 153 (holding that the agency “fairly asserted abortion-related
violence as a privacy interest for both the names and addresses of persons and
businesses” associated with the approval of an abortion-related drug). The
record includes a 2013 declaration from the director of health center
operations for PPNNE describing “a series of recent incidents involving threats
and/or harassment of PPNNE employees.” In one incident, “anti-abortion
protestors took photographs and video recordings of staff and patients.” In
another, an activist entered a PPNNE clinic, asked to speak to someone about
“baby killing,” and, while pointing at a PPNNE staff member, stated that PPNNE
employees “would go to hell.” (Quotation omitted). The declaration averred
that the incidents at PPNNE “are part of a larger pattern of threats,
harassment, and sometimes physical violence, including murder,” and
described some of the more recent examples of such conduct in Arizona and
Florida.
Given evidence of the protests at the Manchester PPNNE office and the
Concord Feminist Health Center and evidence of “the history nationally of
harassment and violence associated with the provision of abortion services,”
Glenn, 132 A.3d at 253, we cannot agree with the plaintiffs that the trial
court’s finding that the individuals at issue have a privacy interest in their
identities and safety is based upon mere speculation. See id. at 252-53
19
(finding that the “risk of violence is not speculative and is based on the ample
evidence presented” where affidavit “presented facts regarding the history of
violence that is associated too frequently with a career in providing surgical
abortion services” and facts regarding events in Maryland, including an
incident in which anti-abortion protestors appeared “at the middle school of a
child of the landlord of a surgical abortion facility” (quotation omitted)).
The plaintiffs assert that because the identities of the individuals whose
names were redacted “have been publicly disclosed by the clinics themselves”
in newspaper articles, the “State cannot assert a privacy interest” on behalf of
the clinics and their employees. However, the record on appeal does not
support the plaintiffs’ underlying factual assertion. The articles contained in
the record do not include the names of any of the individuals whose names
were redacted on the documents at issue. Further, according to the director of
health center operations for PPNNE, “employee information, including provider
and staff names, is not public record,” and “[p]roviders and staff are not
identified on PPNNE’s website or in other publicly-disclosed materials.” See
Planned Parenthood of Northern New England,
https://www.plannedparenthood.org/planned-parenthood-northern-new-
england (last visited May 4, 2016). More importantly, even if the names of the
individuals at issue had been previously made available to the public, “prior
revelations of exempt information do not destroy an individual’s privacy
interest.” Moffat v. U.S. Dept. of Justice, 716 F.3d 244, 251 (1st Cir. 2013); see
FLRA, 510 U.S. at 500 (explaining that “[a]n individual’s interest in controlling
the dissemination of information regarding personal matters does not dissolve
simply because that information may be available to the public in some form”).
2. Public Interest
We also agree with the trial court that the public interest in the names of
the individuals at issue is attenuated at best. The plaintiffs argue that “the
identities of the individuals being granted an exemption by the Board of
Pharmacy to dispense prescription drugs without a pharmacist will inform the
public whether the Board of Pharmacy is properly applying RSA 318:42(VII).”
The trial court concluded that “disclosure of such persons’ professional or
licensing designation is sufficient to demonstrate the extent to which the
[Board of Pharmacy] is approving [licensing] applications according to the law.”
We agree.
RSA 318:42, VII allows registered nurses “in clinics of nonprofit family
planning agencies under contract with [DHHS]” to dispense non-controlled
prescription drugs provided that certain conditions are met, including that the
clinic “possesses a current limited retail drug distributor’s license.” RSA
318:42, VII(d). Disclosure of the names of PPNNE’s site managers, medical
directors, and consultant pharmacists at each of the six clinics does not
20
further the public interest in assuring that the requirements of RSA 318:42, VII
are met.
The plaintiffs also assert that disclosure of the names of individuals on
the license renewal applications is necessary to show “who is running” the
clinics and “whose salary is being paid by taxpayer funds,” and to allow the
public to discover whether there is “corruption, incompetence, inefficiency,
prejudice and favoritism” at the Board of Pharmacy. (Quotation omitted.) To
support these assertions, the plaintiffs rely upon Professional Firefighters, 159
N.H. at 709. That reliance is misplaced.
At issue in Professional Firefighters was whether, under the Right-to-
Know Law, the Local Government Center, Inc. (LGC) could be compelled to
disclose the names and salaries of its employees. Prof’l Firefighters of N.H.,
159 N.H. at 702. LGC conceded that it was “a governmental entity subject to
the Right-to-Know Law.” Id. at 709. Although LGC argued that its employees
were private, and not public, employees, we disagreed, explaining that
“[w]hether records are subject to public disclosure depends upon whether the
entity itself is subject to the Right-to-Know Law.” Id. at 706-07. We also
rejected LGC’s assertion that the employees’ privacy interest in nondisclosure
outweighed the public interest in disclosure. Id. at 707-10. We explained that,
because LGC is a governmental entity and because “the bulk of [its] income”
comes from public funds, public access to the requested information directly
served “the very purpose underlying the Right-to-Know Law.” Id. at 709.
Public access to the salary information allowed scrutiny of “how a public body
is spending taxpayer money in conducting public business.” Id.; see Union
Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 684 (2011) (holding that
disclosure of records related to the retirement benefits of public employees is
required by the Right-to-Know Law because “[t]he public has an interest both
in knowing how public funds are spent and in uncovering corruption and error
in the administration” of the New Hampshire Retirement System, which is a
public body, administering public funds).
PPNNE is a private, non-profit organization, not a governmental entity
like LGC. See Right to Life, 778 F.3d at 49. In addition, there is no evidence in
the record that PPNNE, like LGC, receives the “bulk” of its income from public
funds. Prof’l Firefighters of N.H., 159 N.H. at 709. Moreover, the record does
not demonstrate that State funds pay the salaries of any of the employees
whose names were redacted. In contrast to Professional Firefighters, disclosure
of the individual employee names in this case would reveal nothing about the
government and its activities. See id. Therefore, any asserted public interest
in the names of PPNNE employees is attenuated.
21
3. Balancing
Because the public interest in disclosing the names of PPNNE employees
is, at best, attenuated and is based upon the plaintiffs’ “hypothetical
assessment” of the Board of Pharmacy’s performance, Lamy 152 N.H. at 113,
and because PPNNE employees have a cognizable privacy interest in
nondisclosure that outweighs such a negligible and speculative public interest,
we conclude that disclosure is not required by the Right-to-Know Law. See id.;
see also Favish, 541 U.S. at 174 (concluding that when information is sought
to show that an agency acted negligently, requester must produce “evidence
that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred”); Right to Life v. Dept. of Health
& Human Svcs., 976 F. Supp. 2d 43, 64 (D.N.H. 2013), aff’d, 778 F.3d 43 (1st
Cir.), cert. denied, 136 S. Ct. 383 (2015).
4. Feminist Health Center Documents
a. Financial Documents
The plaintiffs next assert that the trial court wrongfully upheld the
State’s redaction of monetary amounts contained in financial documents of the
Feminist Health Center. Those documents are: (1) a document that lists the
assets and liabilities of the Feminist Health Center for calendar year 2010
(P105-06); (2) a document that shows the center’s income and expenses for
calendar year 2010 (P107-09); (3) a document that lists the center’s cash flow
from operating, investing, and financing activities, the net increase/decrease in
cash during the year, how much was paid for interest, and how much was paid
for income taxes (P110-11); and (4) two copies of the same budget form for the
budget period July 1, 2012, to June 30, 2013, submitted with a request for
“STD/HIV/HCV Clinical Services” and “HIV/HCV Targeted Testing” (P119-20).
The trial court found that the center “has a privacy interest in the
redaction of [the] financial information as it relates to [the center’s] commercial
activities and competitive stance in the market relative to other health clinics.”
The court found that the public had an interest to the extent that the clinic
received State money, but that “even assuming that the clinic received [such]
funding during [the] time periods” reflected on the documents, “the financial
documents do not provide information about how the state grant money
specifically was spent.” Accordingly, the court concluded, because these
documents “primarily show the conduct of the clinic,” and “not any government
conduct,” the State had properly redacted them.
The plaintiffs declare, without any analysis, that the Feminist Health
Center has “little or no privacy interest” in the monetary amounts listed on the
financial documents. Such a bare assertion is not a sufficiently developed
argument. See Wyles v. Lees, 162 N.H. 406, 414 (2011). Accordingly, we
22
uphold the trial court’s determination. See Right to Life, 778 F.3d at 47, 50-51
(upholding trial court’s determination that PPNNE’s Manual of Medical
Standards and Guidelines, a letter describing the manual, policies about
collecting and setting fees, and a document outlining PPNNE’s operations and
fees were exempt from disclosure as confidential commercial information).
With regard to the public interest in disclosure, the plaintiffs argue that
the trial court erred when it held that the financial documents “primarily show
the conduct of the clinic, not any government conduct.” (Quotation omitted.)
We find no error in the trial court’s interpretation of the financial documents.
As the trial court found, the documents do not demonstrate how State grant
money was spent. Given the center’s strong privacy interest in nondisclosure
and the relatively weak public interest in disclosure, we conclude that the State
has met its heavy burden of demonstrating that the financial information is
exempt from disclosure under the Right-to-Know Law.
b. Other Documents
The plaintiffs also challenge the redactions of individual names from
certain other produced documents from the Feminist Health Center: (1) a June
2012 list of board members (P113); (2) a form identifying the clinic’s key
administrative personnel for fiscal years 2013 and 2014 (key administrative
personnel form) (P114); (3) the resume of the center’s director of STD/HIV and
outreach services (P117); and (4) the resume of the center’s staff nurse (P118).4
Although individual home addresses and private telephone numbers were also
redacted from some of these documents and from the resume of the center’s
executive director (P115), the plaintiffs appear to concede that redaction of an
individual’s home address was lawful, and do not argue that the State was
required to disclose an individual’s private telephone number. Thus, we
confine our analysis to the redactions of names from these documents.
The trial court found that individual board members and employees had
a privacy interest in their identities and their association with the Feminist
Health Center. Because the court did not find a sufficient public interest in
disclosing the names from employee resumes, it upheld the redaction of those
names. With regard to board members, the court found that the asserted
public interest in disclosing the names was not entitled to great weight. See
Lamy, 152 N.H. at 111-13. Thus, the court found that the board members’
privacy interest outweighed any public interest in the disclosure of their
names, and upheld the redaction of names from the board member list.
4 Although in their January 12, 2016 letter to this court, the plaintiffs identified documents bates-
stamped P112 and P116 as being at issue in this appeal, the record indicates that those
documents were produced without redaction. Moreover, the plaintiffs have not included those
documents in the record on appeal and have not briefed any argument about them. Accordingly,
we deem any such argument to be waived. See Aubert, 129 N.H. at 428.
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With respect to the key administrative personnel form, the court found
that there “is a privacy interest at stake in the disclosure of this information as
these employees work for a private entity that is not itself subject to the Right-
to-Know Law.” However, the court also found that the public had “some
interest in the finances of the clinics that receive state grant funding because
taxpayer dollars are flowing to the entity and funding certain services.” The
court determined that because the Feminist Health Center is not a
governmental entity or a “surrogate[ ]” thereof, the public need not know the
names of the individuals holding the positions at issue, but that the public did
have a right to know the salaries associated with those positions. Thus, the
court ordered the State to redact the individuals’ names, but to disclose the
salary information.
1. Privacy Interest
We begin by assessing whether the individuals have a privacy interest in
the nondisclosure of their names. The individuals at issue, like the PPNNE
employees whose names were redacted from the license renewal applications
submitted to the Board of Pharmacy, have a cognizable privacy interest in
controlling the dissemination of their names and their connection to the
Feminist Health Center. See Sensor Systems Support, Inc., 851 F. Supp. 2d at
333.
2. Public Interest
We next address the public interest in disclosure of the names of the
individuals. The public interest that matters for the Right-to-Know Law is
whether disclosure of the otherwise private information will provide the public
“the utmost information . . . about what its government is up to.” Lamy, 152
N.H. at 111 (quotation omitted). Here, the disclosure of the individuals’ names
will not tell the public anything directly about what the State “is up to.” Id.
(quotation omitted). The disclosure of these names will reveal nothing about
the State’s own conduct. See id.; see also Right to Life, 976 F. Supp. 2d at 62-
64 (ruling that federal agency had met its burden to justify nondisclosure of the
names and other identifying information of PPNNE middle- and lower-level
employees when such employees “do not even work for the federal government,
but for a private organization that receives part of its funding from the federal
government,” and the court could not “conceive of[] any public interest in that
kind of information”).
“The asserted public interest” upon which the plaintiffs rely for disclosing
the names “stems not from the disclosure of the redacted information itself, but
rather from the hope that [the plaintiffs], or others, may be able to use that
information to obtain additional information outside the Government files.”
Department of State v. Ray, 502 U.S. 164, 178 (1991); see Lamy, 152 N.H. at
111-12. The plaintiffs argue that there is “a great public interest” in disclosing
24
the names of the individuals because doing so will enable the public to
scrutinize whether the individuals have contributed to political campaigns and
whether those contributions have resulted in the State “showing undue
favoritism” to the Feminist Health Center. This kind of public interest is
derivative, and in Lamy, we held that when, as in this case, “the sole public
interest in disclosing the information” is derivative, it is entitled to little weight.
Lamy, 152 N.H. at 113.
3. Balancing
Because the only public interest in disclosing the names of the
individuals is derivative and because these individuals have a cognizable
privacy interest in nondisclosure that outweighs such a negligible public
interest, we conclude that disclosure is not required by the Right-to-Know Law.
See id.; see also Favish, 541 U.S. at 174.
D. Specificity of State’s Responses
The plaintiffs next argue that the trial court erred when it failed to
conclude that the State’s initial responses to the plaintiffs’ Right-to-Know
requests violated RSA chapter 91-A. The State counters that the plaintiffs have
“confuse[d] the requirements for an agency’s initial response to a Right-to-
Know request under RSA 91-A:4 with the requirements for a[ ] Vaughn [i]ndex.”
See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). “Generally, a Vaughn
index . . . include[s] a general description of each document withheld and a
justification for its nondisclosure.” Union Leader Corp., 142 N.H. at 548. The
State contends that its initial responses to the plaintiffs’ requests complied
with RSA 91-A:4, IV (2013) and that greater specificity is not required by that
statute. We agree with the State.
RSA 91-A:4, IV provides that, when denying a request to produce a
public record for inspection and copying, a public body or agency need only put
the denial “in writing” and provide “reasons” for the denial. As the trial court
found, and as the record supports, “[i]n response to each Right-to-Know
request, . . . the State cited statutory provisions, case law, or applicable
privileges indicating the exemption or other reason for non-disclosure.”
Although a Vaughn index requires more specificity than the State provided in
its initial responses, the State was not required to provide such an index in this
case. See Murray v. N.H. Div. of State Police, 154 N.H. 579, 583 (2006)
(explaining that an agency “is not required . . . to justify its refusal [to disclose]
on a document-by-document basis” and that “[w]hile . . . the preparation of a
Vaughn index may be sufficient to justify an agency’s refusal to disclose,” doing
so is not “necessarily required”). We, therefore, uphold the trial court’s implicit
ruling that the State’s written responses to the plaintiffs’ Right-to-Know
requests satisfied the requirements of RSA 91-A:4, IV.
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The plaintiffs next assert that the court erred “in only requiring the State
to provide [them] with a table of contents of withheld documents two months
after the February 2, 2015 deadline” for briefing, and in finding that the entries
in the table were sufficiently specific. (Emphasis omitted.) We decline to
address this assertion substantively because the plaintiffs have not
demonstrated that they preserved it for our review. See J & M Lumber &
Constr. Co. v. Smyjunas, 161 N.H. 714, 718 (2011). It is the burden of the
appealing party, here the plaintiffs, to demonstrate that they raised their issues
before the trial court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250,
(2004).
On March 27, 2015, the trial court ordered the State to provide it “with
two parallel packets of documentation, one as redacted and the other as
unredacted.” The order required that each packet “contain readily identifiable
and parallel page numbering” and include “a table of contents which identifies
the documents by a reasonable brief description and by reference to the
numbering stamp numbers or equivalent numbering.” The State was ordered
to provide the table of contents to the court and to the plaintiffs.
To the extent that the plaintiffs believed that the trial court erred by
ordering the State to provide the table and by finding its entries to be
sufficiently specific, it was incumbent upon them to so inform that court. See
LaMontagne Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 274
(2003); N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002).
However, the record submitted on appeal does not demonstrate that the
plaintiffs ever informed the court, in a motion for reconsideration or otherwise,
that the trial court erred by requiring the State to provide a table of contents or
in finding the entries in that table to be sufficiently specific. Thus, because the
plaintiffs have failed to demonstrate that they preserved their argument
regarding the table of contents for our review, we decline to review it
substantively. See Smyjunas, 161 N.H. at 718.
E. Costs and Attorney’s Fees
The plaintiffs next contend that the trial court erred by failing to award
them attorney’s fees and costs. We first address their request for attorney’s
fees.
RSA 91-A:8 governs remedies for violations of the Right-to-Know Law.
RSA 91-A:8 (2013). Under RSA 91-A:8, I, attorney’s fees shall be awarded to a
plaintiff if the trial court finds that: (1) “such lawsuit was necessary in order to
make the information available”; and (2) “the public body, public agency, or
person knew or should have known that the conduct engaged in was a
violation of RSA chapter 91-A.” Prof’l Firefighters of N.H., 159 N.H. at 710
(quotations and brackets omitted). We will defer to the trial court’s findings of
26
fact unless they are unsupported by the evidence or erroneous as a matter of
law. Id.
The plaintiffs argue that they are entitled to fees because: (1) the
Director, Charitable Trusts Unit (CTU) took 12 weeks to provide them with the
financial records they requested; (2) with regard to the buffer zone litigation
documents, the State “repeatedly refused to provide reasons for its
withholdings until ordered by the Superior Court in April 2015”; and (3) the
State knew or should have known that its conduct violated RSA chapter 91-A.
The plaintiffs contend that “[t]he State’s failure to provide the hundreds of
pages of financial records until 12 weeks after the request and [its] failure to
identify the documents it was withholding and the reasons for the withholding
until 9 months after [the] request were both knowing violations of RSA 91-A,”
and entitled them to an attorney’s fee award.
The trial court rejected these arguments. With regard to the CTU, the
court found that, although the CTU had received one of the requested
documents in August 2014, “it is unclear when [it received] the other
documents responsive to the [plaintiff’s September 11, 2014] request.” The
court further found that the CTU produced the responsive documents in
December 2014, “upon completion of the agency’s internal processing.” The
court concluded that “[a]lthough this lawsuit was pending at the time of
production,” it was not “necessary in order to enforce compliance.” (Quotation
omitted.) We uphold these factual findings because the plaintiffs have failed to
persuade us that the record does not support them or that they are legally
erroneous. See id. The trial court, having found that the plaintiffs’ lawsuit was
not necessary to enforce the CTU’s compliance with RSA chapter 91-A, did not
err by denying the plaintiffs attorney’s fees with regard to the documents
requested from the CTU. See ATV Watch, 155 N.H. at 442.
With regard to the buffer zone litigation documents, the trial court found
that, contrary to the plaintiffs’ assertions, the State sufficiently justified “its
exemptions and withholdings” by citing “statutory provisions, case law, or
applicable privileges indicating the exemption or other reason for non-
disclosure.” The record supports this finding. As previously discussed, no
more was required under RSA 91-A:4. See RSA 91-A:4, IV. Thus, the trial
court correctly denied the plaintiffs’ attorney’s fee request with regard to the
State’s production of the buffer zone litigation documents.
With regard to the State’s response in general, the trial court found that
although it had “concluded that certain redactions or withholdings by the State
did not meet Right-to-Know requirements, they were not so unreasonable
under current New Hampshire case law that the State knew or should have
known that disclosure was required.” The court, therefore, found that the
plaintiffs were “not entitled to an award of reasonable attorney’s fees as a
consequence of the specific disclosures mandated by [its] order.” We concur
27
with this reasoning. We hold, based upon “the record, the trial court’s
findings, and the law in this area,” that the State “neither knew nor should
have known that its conduct violated the statute.” Goode v. N.H. Legislative
Budget Assistant, 145 N.H. 451, 455 (2000). Accordingly, we hold that the trial
court properly denied the plaintiffs’ request for attorney’s fees. See id.We next address the plaintiffs’ request for costs. The trial court denied
the plaintiffs costs because they had “not specifically requested” such an
award. Even if we assume without deciding that the trial court erred in this
respect, we affirm its denial of costs. See Catalano v. Town of Windham, 133
N.H. 504, 508 (1990) (explaining that “when a trial court reaches the correct
result, but on mistaken grounds, [we] will sustain the decision if there are valid
alternative grounds to support it.” (quotation and brackets omitted)).
The plaintiffs argue that they are entitled to costs, as a matter of law,
because “[t]he Superior Court found that the State violated RSA 91-A in
responding to [their] right to know requests in several respects.” However,
under RSA 91-A:8, I, the trial court must award costs to a plaintiff only when it
“finds that [the plaintiff’s] lawsuit was necessary in order to enforce compliance
with,” or “to address a purposeful violation of,” the Right-to-Know Law. RSA
91-A:8, I; see ATV Watch, 155 N.H. at 439 (explaining that costs must be
awarded if State violated the Right-to-Know Law “and a lawsuit was necessary
in order to make the information available”). As previously discussed, the trial
court found, and the record supports its finding, that the plaintiffs’ lawsuit was
not necessary to enforce compliance with RSA chapter 91-A. Therefore, we
uphold the trial court’s denial of costs to the plaintiffs.
Affirmed in part; reversed
in part; vacated in part;
and remanded.
DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.
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