THIS BLOG POST IS A GUEST EDITORIAL.
Author: Maxim Ledoux
“These lawsuits are an absurd practice and noxious to open government.” That’s how the Associated Press quotes University of Kansas journalism professor Jonathan Peters, speaking about a troubling trend in recent years of government bodies suing citizens who seek disclosure of public documents through open-records laws. You can read the whole article at AP (“Governments turn tables by suing public records requesters”).
I know all about these types of absurd lawsuits. Last year the Tuftonboro board of selectmen (at the time: Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) sued me and another Tuftonboro New Hampshire resident, Bob McWhirter, when we requested to inspect government records. They spent around $20,000 (and counting) in a vain attempt to charge us $.25 per page to inspect the records, even though New Hampshire’s Right to Know law states that “no fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” The selectmen’s attorney, Richard Sager of Ossipee, argued in court that the law doesn’t make sense because, if read literally, it meant that the selectmen couldn’t charge us a fee. And they wanted to charge us a fee.
They lost their lawsuit when Carroll County Superior Court Judge Amy Ignatius ruled that they couldn’t charge us a fee. But as the AP quotes Mike Deshotels in its article, “You can lose even when you win.” Deshotels was sued by the Louisiana Department of Education when he requested school enrollment data. The DOE lost in court, like the Tuftonboro selectmen, but Deshotels incurred legal costs, like Bob and me, defending himself from an attack on his right to know what his government was doing.
These types of abusive lawsuits are happening all over the country, according to the AP. But in Michigan, the state House of Representatives unanimously (108–0) passed a bill this spring that would prohibit government bodies from suing citizens who are requesting documents. The bill needs to be passed by the Michigan Senate before becoming law.
Tuftonboro selectmen spent $20,000 of taxpayers’ money in an effort to make it more difficult to get access to public records. Would they have done that if it was their own $20,000? It’s easy to spend other people’s money. Even after the court’s ruling on August 8, the selectmen have yet to turn over a single email to me or Bob.
New Hampshire should make it illegal for government bodies to sue citizens who are requesting documents.
The New Hampshire Supreme Court ruled today, September 21, 2017, that School Administrative Unit 55 is allowed to charge $7.49 to provide a 3-page email in electronic format. In the case of Taylor v. SAU 55, the court ruled that the charge for a thumb drive covers the actual cost of making a copy. The court ruled that the No Fee Provision of RSA 91-A:4, IV allows providing an email by thumb drive, reading delivery to mean the transfer of the email within the SAU, not delivery to Taylor. Taylor had asked that the email be forwarded to him, instead. The SAU had argued that forwarding the email would be a security risk and would not allow reliable confirmation of receipt. The court agreed with both points. The full court opinion is available here.
The Town of Tuftonboro, N.H. lost it’s effort to charge $0.15 per page to redact emails provided electronically. Judge Amy Ignatius in Carroll County Superior Court ruled that redacting emails electronically does not substantively change their format nor does it incur actual costs that can be charged. The town had not sought to be reimbursed for the time it takes employees to redact the emails, and they provided no evidence of other expenses.
Unlike most Right-to-Know Law cases where a citizen sues for access to records or meetings, in this case the Town of Tuftonboro took 2 of its residents to court. The town basically wanted the court to declare whether the town could charge for redacted records. Since the citizens had to respond to the preemptive lawsuit by hiring a lawyer, they sought help from supporters. The town sought for details about those supporters, but the court also denied that request. In spite of the burden imposed by the town on the citizens, the court did not award attorney’s fees or court costs because the issue of redaction costs was not settled law and therefor the town did not “know or should have known” it was improperly denying access. The town has 30 days until September 7, 2017 to appeal. The full court order is available here.
Unusual Right to Know Law Case Settles Before Supreme Court Argument
By: H. Boone Porter, III
A closely watched case, Porter, et al. v. Town of Sandwich, et al., Dkt. No. 212-2014-CV-00178 (Carroll County Superior Court), was recently settled on terms extremely favorable to the plaintiffs.* Under the settlement: (i) the Town withdrew its pending appeal to the Supreme Court with prejudice; (ii) the Superior Court’s orders that, among other relief, vacated a total of 6 Town administrative proceedings and mandated Town officials and employees to attend remedial training, collectively became a final, binding, and non-appealable judgment; (iii) the Town and the intervenors together agreed to reimburse the Porters $200,000 in attorneys’ fees of the $204,000 awarded by the Superior Court; and (iv) the Porters’ will dismiss 2 appeals of Zoning Board of Appeals (ZBA) decisions that are now moot.
This case highlights that the Right-to-Know Law (RTKL) not only compels public bodies to disclose government records, but also regulates how public bodies convene and conduct meetings and how they deliberate and make decisions. When a public body violates these requirements, an aggrieved party may seek relief for: (i) reimbursing attorneys’ fees; (ii) vacating of administrative decisions; (iii) requiring public officials to attend remedial training; (iv) entering injunctions; and (v) imposing civil penalties on offending officials.
The underlying facts were complex and intertwined with those of 2 appeals of ZBA decisions the Porters simultaneously filed with the Superior Court. Ultimately, the Superior Court wrote a 47-page order finding that the Town had engaged in systemic violations of the RTKL by: (i) conducting unnoticed meetings of public bodies; (ii) deliberating upon, and then reaching decisions for, pending cases in unnoticed meetings; (iii) participating with Town counsel in conduct intended to circumvent the spirit and purpose of the RTKL; and (iv) failing to disclose requested public records. A simplified statement of the facts necessary to understand the Porter’s RTKL claims is recited below.
The Porters owned an undeveloped lakefront lot. In 2014, the owners of an abutting lakefront lot (the “Intervenors”) erected a building in apparent violation of the Town’s zoning ordinance. When negotiations between the principals failed, the Porters petitioned the Board of Selectmen to conduct a hearing under RSA 43:1 to determine: (i) if the building permit issued to the Intervenors was invalid; or, alternatively, (ii) if validly issued, the building erected exceeded the permit’s authorization.
The Selectmen denied the Porters’ request. During a public meeting, the Selectmen announced that they had already discussed this matter among themselves and were “interpreting” the zoning ordinance in a manner unfavorable to the Porters. The Porters then filed two separate appeals of adverse administrative decisions with the Zoning Board of Appeals (ZBA).
Learning of the Porter’s planned first appeal, the chairman of the ZBA e-mailed all ZBA members, with a copy accidentally sent to Mr. Porter. The e-mail made false accusations against the Porters, claiming that they were lobbying Town land use boards to concur with their interpretation of the law and that they were violating ZBA rules governing administrative appeals. The e-mail instructed ZBA members to destroy all copies of the Porters’ appeal. The chairman’s life partner, who served as the ZBA’s land use secretary, replied to all ZBA members that she had “instructed” the Town’s administrative assistant and the Selectmen’s assistant to “confiscate” any filing made by the Porters.
Mr. Porter sent three replies. First, he stated that the e-mail’s factual allegations were unfounded and negatively prejudiced the Porters’ appeal. Second, he warned that “confiscation” of his filing would have serious legal consequences. Finally, he noted that the ZBA chairman’s e-mail constituted a meeting of a public body in violation of the RTKL. Several days later, the Porters filed their first ZBA appeal, and shortly thereafter, filed their second.
The ZBA denied the Porters’ first appeal concerning the Selectmen’s refusal to conduct a public hearing under RSA 43:1, claiming it lacked jurisdiction because of time bar. The ZBA relied upon a zoning ordinance provision that applied only to applicants whose building permits had been denied, and which was inapplicable to the facts presented. The ZBA next denied the Porter’s second appeal relating to the Selectmen’s erroneous interpretation of the zoning ordinance, claiming it had no jurisdiction to reverse the Selectmen’s decision not to hold a hearing under RSA 43:1.
This second decision was based on the ZBA’s incorrect finding that the Selectmen had not interpreted the zoning ordinance. A transcript of a recording of the Selectmen’s meeting announcing its decision conclusively disproved the ZBA’s “finding.” During this second proceeding, the ZBA did not permit the Porters to argue the existence of jurisdictional facts.
The Porters filed motions for reconsideration. Shortly before the scheduled hearing (where the ZBA was supposed to deliberate upon and decide both motions in public view), the Porters discovered a copy of the ZBA’s denial decision of one of their motions on the front seat of their car. The denial decision recited facts not in the record and the names of the ZBA members appeared under signature lines. The Porters also found a redacted transmittal e-mail to all ZBA members. (Unbeknownst to the Porters, a similar denial decision and transmittal e-mail had also been sent to all ZBA members concerning the other pending motion for reconsideration.)
The redacted e-mail stated the accompanying denial decision was the recommendation of Town counsel prepared on the direction of the ZBA’s chairman. The e-mail instructed ZBA members to carefully consider the denial decision on an individual basis; admonished them to be prepared to discuss its contents at the upcoming public hearing; and advised them of the precise wording to be used in making a motion to adopt the denial decision.
Alarmed, the Porters made a RTKL document production request to discover what other covert proceedings might have occurred. The Town, however, did not timely or completely respond. At the hearing on the motions for reconsideration, the Porters and their counsel were prohibited from speaking, and both motions were denied. The Town finally produced documents revealing that Town employees had exchanged e-mails disparaging and mocking the Porters throughout the administrative proceedings. The Porters then filed their RTLK lawsuit.
The Superior Court determined the Selectmen had decided to deny the Porters’ request for a hearing under RSA 43:1 outside of a publicly noticed hearing. The Selectmen testified they had decided the matter at the end of a public hearing but their decision had not been included in the minutes. The Superior Court found this testimony “not credible.”
The Court ruled the pre-hearing circulation of the draft denial decisions was a scheme to unlawfully circumvent the RTKL. It determined the drafts were signals to ZBA members how the chairman wanted the appeals decided and that typing individual ZBA member’s names under the signature lines was, in the circumstances, an improper solicitation of votes. The Court also found that the Town failed to timely produce public documents requested under the RTKL. The Court concluded that the Town knew or should have known it had engaged in “obvious” and “clear” violations of the RTKL, and these violations would have continued but for the Porters’ lawsuit.
As stated above, the Superior Court: (i) declared that the Town violated the RTKL; (ii) vacated all of the Board of Selectmen and ZBA proceedings as being irredeemably tainted by unfairness; (iii) ordered designated Town officials and employees to complete a specified training program by a court-approved independent attorney; and (iv) awarded the Porters their attorneys’ fees. The Court declined to enter an injunction, deeming its training remedy sufficient to prevent future violations, and concluded civil penalties should not be assessed against Town officials because they acted with poor judgment and not in bad faith. It is unclear if this last finding was made to protect the Town’s right to maintain insurance coverage, but in fact, it had no coverage for violations of the RTKL.
Footnote(*): The author was one of the Plaintiffs in this case. This article is for general informational purposes only. It is not intended to be, nor does it constitute, legal advice. Consequently, this article may not be relied upon as legal advice by any person. The facts and circumstances of each RTKL case are unique. Persons seeking legal advice regarding the RTKL or any other legal matter should consult with competent legal counsel.
In a 9-page decision, Justice Diane Nicolosi ruled for the Merrimack County Superior Court that the Merrimack Valley School District School Board violated the Right-to-Know Law. They violated the law by considering vacancies on the Board and teacher resignations during non-public sessions. They also violated the law when they voted on one Board vacancy by secret ballot. Their non-public session minutes violated the law by not recording the names of administrators who attended those sessions. The plaintiffs failed to prove that the Board didn’t address audibility problems at their public meetings. The Board was enjoined from similar future violations of the law. The full order in Andrus v. Merrimack Valley School District School Board, No. 217-2016-CV-30 may be found here.
According to an article in the Union Leader, the Town of Sandwich has been ordered to pay over $200,000 for attorney’s fees and costs after they were found by Carroll County Superior Court to have violated the Right-to-Know Law. The case was brought by H. Boone Porter and alleged several violations of RSA 91-A. Sandwich was found in violation in a court order issued on August 14, 2015. Due to the complexity of the legal effort and associated fees and costs, the court continued to work on the case after the initial order. The court issued another court order on June 23, 2016 where Judge Charles Temple awarded $196,507.00 in attorney’s fees and $8,083.47 in costs for the claims where the plaintiff prevailed. The Town of Sandwich is considering whether to appeal the award.
Judge Diane M. Nicolosi denied a motion to dismiss a lawsuit alleging several violations of the Right-to-Know Law against the Merrimack Valley School District. A separate claim on electioneering was dismissed.
In the court ruling dated May 10, 2016, the judge ruled that the statute of limitations and doctrine of laches do not apply to the RSA 91-A lawsuit. Similarly, the claims were ruled not moot even though they extend back to 2004 because the lawsuit only seeks to enjoin future violations. The lawsuit claims the MVSD board illegally deliberated and voted in non-public session to fill board vacancies. It also claims that administrators who attended non-public meetings were not recorded in the minutes. The judge also ruled that all parts of a public meeting must be audible, even when no member is attending by phone.
Since the motion to dismiss was denied, the lawsuit will move forward. The hearing is scheduled for June 27, 2016 at 10:00 a.m in Merrimack County Superior Court.