A lawsuit alleging violations under the Right-to-Know law is scheduled for trial today in New Hampshire Superior Court in Nashua, NH, before Judge Charles Temple. A Bedford-based commercial real estate development firm, Granite Green Investment Partners, LLC, filed the lawsuit against the City of Nashua in October 2017. Granite believes records and communications produced by the City in response to two Right-to-Know requests sent by Granite in February and June 2017, respectively, show the Mayor of Nashua, James W. Donchess, may have played some role in the City’s review of and decision-making process concerning Granite’s site plan application for an age-restricted housing project for the elderly, and the review, by the Nashua Zoning Board of Adjustment (ZBA), of an appeal by four abutters to the project of the City’s prior determination that the project qualified as elderly housing under a Nashua ordinance and would not require any variances.
According to Granite’s filings, the City’s initial production of records in response to Granite’s first Right-to-Know request revealed a disturbing trend of events concerning the City’s review of the project. For example, a text message between Mayor Donchess and Mariellen MacKay, a Nashua ZBA member who voted against the project, a mere 12 minutes after the conclusion of a February 14, 2017, ZBA meeting that addressed Granite’s application (wherein the ZBA, as noted above, reversed the City’s prior determination) demonstrates, along with other communications, Mayor Donchess’s strong dissatisfaction with the project. Earlier communications from Mayor Donchess reveal he berated Nashua City Staff when he learned they determined the project satisfied the Nashua ordinance referenced above; proposed and endorsed an amendment to the Zoning Ordinance that would preclude elderly housing projects – such as Granite’s – from being built in residential neighborhoods; and celebrated the ZBA’s February 14 decision with both Ms. MacKay and Sarah Marchant (Nashua’s Community Development Director) the day after it was rendered.
Granite contends that, despite the City’s production of the records and communications above, the City failed to produce additional records and respond to numerous other right-to-know requests concerning the events above. It initially failed to produce text messages involving individual ZBA members in response to Granite’s initial right-to-know request; revealed Ms. MacKay routinely deletes her text messages; failed to respond to Granite’s second right-to-know request for nearly two weeks; failed to make several documents available that were “immediately available;” revealed the Mayor’s email (and email of other City employees) is deleted within a short period of time and not preserved; failed to respond to the majority of Granite’s second request; and may have improperly redacted and withheld information in various text messages involving prominent City officials. These issues forced Granite to file a lawsuit.
In late 2016, Granite submitted a site plan application for the project. Nashua City Staff, which included Ms. Marchant (among other individuals), initially determined the project complied with a local ordinance and, thus, qualified as elderly housing under the ordinance and would not require any variances.
When Mayor Donchess learned of that determination, he berated City Staff in a series of written and verbal communications. For example, in a text message on February 6, 2017, Mayor Donchess scolded Ms. Marchant (who was then in India attending a business and cultural exchange program) for giving the Project “the seal of approval” without first “demonstrating in detail why the decision was required.” Ms. Marchant attempted to alleviate the Mayor’s concerns, and she informed him she would schedule meetings with him, legal staff, and planning staff “on sensitive cases” in the future so the Mayor is “not put in this position again.”
That same day, Ms. Marchant communicated (from India), on a double-encrypted mobile text messaging application known as “WhatsApp,” with Planning Director Roger Houston (another member of City Staff) and Carrie Schena, the Urban Programs Manager for the City of Nashua, about her earlier conversation with Mayor Donchess. In these messages, Ms. Marchant stated, “Hopefully I took a little edge off for you,” in anticipation of the Mayor shedding his frustration on them as well in a meeting the next day. She also stated, “Someone from the neighborhood got to [Mayor Donchess] in a way that reflects very poorly on [Zoning Administrator] Carter [Falk],” another member of City Staff and the individual who advised Granite on November 22, 2017 of its approval of the Project. Mr. Houston suggested City Attorney Steve Bolton should attend their meeting with the Mayor so it would be “protected under attorney client privilege.”
The following morning, February 7, Ms. Schena, Mr. Houston, and Mr. Falk met with Mayor Donchess. Afterwards, Ms. Schena reported to Ms. Marchant and Mr. Houston via “WhatsApp” that the Mayor was “still very agitated” and “wanted [Mr. Falk] to explain himself and why he determined the elderly services met the criteria of the ordinance.” Ms. Schena stated the Mayor “wasn’t satisfied with the response that it was a group collaboration/decision.” She also stated the Mayor “felt he made it clear of what the City’s position was.” Ms. Marchant commiserated with them, stating, “So sorry that it was so awful.”
The ZBA heard the abutters’ appeal at its January 24 and February 14, 2017 meetings: After the Mayor’s tirades, City Staff made little to no effort to justify its position or defend its decision at these meetings. At the end of the February 14 meeting, the ZBA reversed City Staff’s determination, ruling the project did not qualify as elderly housing. Ms. MacKay is a member of the ZBA and voted against the project.
In the City’s initial production of records in response to Granite’s first Right-to-Know request, Granite discovered the aforementioned text message between Mayor Donchess and Ms. MacKay just 12 minutes after the conclusion of the February 14 meeting. Ms. MacKay texted Mayor Donchess: “Appeal of 122 Manchester St. denied. ZBA did its job. This is me Mariellen Jim 😊.” The Mayor responded, “That’s fantastic. Let’s talk tomorrow.”
The next day, the Mayor’s Chief of Staff, Kimberly Kleiner, advised that Ms. MacKay called as instructed: “Zoning held up neighbors appeal on 122 manchester – Mariellen called.” The same day, Ms. Marchant – again, one of the City Staff members involved in initially determining the Project qualified as elderly housing and required no zoning variances – also texted Mayor Donchess, from India: “[S]o happy to hear zba decision!” The Mayor responded, “Definitely!”
Granite’s Right-to-Know Requests
After the ZBA’s decision, Granite submitted a Right-to-Know request to the City. It asked for records, meetings minutes, communications (including text messages) between the various City departments and officials, and other documents concerning Granite’s application and the City’s review of the project.
The City’s initial response to the first Right-to-Know request included text messages between only (a) Mayor Donchess and Ms. Marchant; (b) Mayor Donchess and Ms. Kleiner; and (c) Mayor Donchess and Ms. MacKay. The City produced no other text messages concerning the project, and all but the text messages between Mayor Donchess and Ms. Marchant contained significant – and improper – redactions.
After Granite identified this deficiency, the City produced additional text messages two days later. These additional text messages included – for the first time – several messages on “WhatsApp” involving Mr. Houston, Ms. Schena, Ms. Marchant, and Ms. Kleiner. The City redacted a significant portion of these messages, claiming they were due to attorney-client privilege and an unrelated personnel matter.
Granite contended the City’s production, however, was still deficient: Granite alleged the City failed to produce text messages involving all the individual members of the ZBA; it had then only produced such messages involving Ms. MacKay. Nearly a month later, the City responded and provided emails from Jonathan “Jack” Currier (Chair of the ZBA); it stated, however, that Ms. MacKay “does not, as a matter of course, retain text messages.”
Granite sent a second Right-to-Know request to the City on June 29, 2017, which contained specific requests concerning several key events related to Granite’s site plan application and the project, broader follow-up requests concerning text messages involving Mayor Donchess, Ms. MacKay, Ms. Marchant, Ms. Kleiner, and Ms. Schena, and any new records generated by the City since the first Right-to-Know request. The City failed to respond to the second Right-to-Know request for nearly two weeks, alleging it “was located in the Mayor’s office, the victim of vacations and generally being ‘lost in the shuffle.’” The City also stated the requested records – some of which had already been produced in March – were not immediately available, and that “the time reasonably necessary to gather the documents and to determine whether the request, or portions thereof, shall be granted or denied, is six (6) months.”
After several communications between the parties, the City agreed to respond to six items in the second Right-to-Know request. Granite alleges, however, that the City failed to live up to that promise. For example, the City agreed to provide communications concerning meetings involving Mayor Donchess on February 7, 2017 (when he met with City Staff to scold them for approving the Project) and February 14, 2017 (when he communicated with Ms. MacKay concerning the ZBA’s reversal of the City’s approval of the project), 2017). It did not do so, however, and explained the City had a policy of deleting email after 30 days, and claimed “[t]he Mayor’s emails are subject to and have been deleted in accordance with this policy” and “are no long[er] subject to disclosure under the right to know law.” See id. The City disclosed this fact four months after it would have presumably deleted the Mayor’s emails from February 2017 under this policy.
The City did not respond to the remaining items in the second Right-to-Know request before Granite filed the Petition in late October – by then, three-and-a-half months later. The City began to submit additional responses to the second Right-to-Know request to Granite only after the Petition was filed, and many of those responses occurred after the City’s proposed six-month time frame.
Granite believes the City violated the Right-to-Know Law in several respects:
- The City’s Redactions of Text Messages
Granite is requesting that the Court order the City to disclose unredacted copies of various documents, including the “What’s App” text messages involving Ms. Marchant, Ms. Kleiner, and Ms. Schena.
- The Deletion of Mayor Donchess’s Emails
Granite also alleges the City’s reliance on its internal policy in refusing to disclose the Mayor’s emails and its admission that his emails were deleted violated the Right-to-Know Law. Granite has cited RSA 33-A:3-a, XXV (which requires municipalities to maintain administrative correspondence records for a minimum of one year) and RSA 33-A:3-a, XXVI (which requires other types of correspondence records to be maintained for various periods of time, none of which is limited to 30 days) in arguing the City’s document retention practices themselves violate the law. Granite argues the City should have retained the Mayor’s emails.
- The Deletion of Ms. MacKay’s Text Messages
Granite alleges the City’s failure to require its employees and officials, such as Ms. MacKay, to retain text messages violated the Right-to-Know Law. The City has argued text messages are not “governmental records” under RSA 91-A and not subject to disclosure.
No New Hampshire court has addressed this question. Courts in other jurisdictions, however, are concluding text messages are public or governmental records. For example, in Nissen v. Pierce County, 357 P.3d 45 (Wash. 2015), the Washington Supreme Court held text messages concerning work-related matters on an elected county prosecutor’s private cell phone were public records and subject to disclosure under Washington’s Public Records Act. Similarly, in City of Champaign v. Madigan, 992 N.E.2d 629 (Ill. App. 2013), an Illinois appellate court held, under similar language in a freedom of information act statute, that text messages sent to or from a city council member’s personal electronic device while the council was in session qualified as a public record. Id. at 639-40. Also, in Toensing v. Atty. Gen., 178 A.3d 1000 (Vt. 2017), the Vermont Supreme Court held that the records produced or acquired in the course of state business are “public records” under similar language in Vermont’s public records access statute, regardless whether they are located on the private accounts of state employees or officials. Id. at 1004. The Court held further that a government agency must ask state employees to determine whether they possess public records in digital form on their personal accounts when a requester asks for such communications that could qualify as “public records.” Id. at 1002.
Thus, Granite argues that, if a text message that Ms. MacKay and Mayor Donchess exchanged was created by either individual and concerned work-related matters, the Court may conclude it was created on behalf of the ZBA or on behalf of the Mayor’s office, and, thus, it is a governmental record and subject to disclosure under the Right-to-Know law.
- The City’s Delay in Responding to the Second Right-to-Know Request
Granite also points to the City’s undisputed failure to respond to the second Right-to-Know request within five business days and ultimate delay in its response as another violation of the Right-to-Know law. For this argument, it is relying on ATV Watch v. New Hampshire Department of Resources and Economic Development, 155 N.H. 434 (2007).
In ATV Watch, the New Hampshire Supreme Court held the Department of Resources and Economic Development (DRED) violated the Right-to-Know law by its delayed disclosure of documents concerning DRED’s intended purchase of a large tract of land in the Berlin area and its plan to develop all-terrain vehicles and other trails once the land was purchased. ATV submitted a Right-to-Know request to DRED in late 2004. On December 1, 2004, DRED indicated its intent to comply with ATV’s request but noted its need to consult with the Attorney General on matters of confidentiality. In January 2005, DRED provided ATV with certain information but indicated its intent to withhold other documents. The Supreme Court held “[t]he plain language of the [Right-to-Know law] does not allow for consideration of the factors applied by the trial court, such as “reasonable speed,” “oversight,” “fault,” “harm,” or “prejudice.” It vacated the trial court’s ruling in favor of DRED and remanded the case to the trial court to determine whether ATV’s lawsuit was necessary to make the documents available.
Granite argues the City’s blaming the lack of a timely response on the claim that Granite’s Right-to-Know request was “lost in the shuffle” is no different than the “oversight” alleged in ATV Watch.
- The City’s Delay in Disclosing Text Messages in Response to the First Right-to-Know Request
Granite also claims the City failed make a full disclosure of text messages in response to the First Right-to-Know request and delayed their disclosure. The first Right-to-Know request included a broad request for text messages from all City departments concerning the project. The City’s initial response to the First Right-to-Know Request occurred on February 27, 2017, several days after the five-day period required by RSA 91-A. The City’s response included only a limited set of text messages. Granite followed up and requested that the City supplement its disclosure twice. The City produced additional text messages on March 3 (the What’s App text messages). Then, on March 30 (a month and a half after the first Right-to-Know Request was sent), the City provided emails involving Mr. Currier (the Chair of the ZBA); and it did not provide any other text messages involving Ms. MacKay and admitted Ms. MacKay deletes her text messages.
Granite contends this conduct demonstrates another failure to abide by the strict time requirements of the statute, as noted in ATV Watch.
- The City’s Failure to Respond to Many of the Requests in the Second Right-to Know Request
Finally, Granite contends the City delayed its response to the second Right-to-Know request and delayed its related disclosures. The City claimed it needed six months to respond to that request. It then responded to only four items in the request, leaving many unanswered. It began responding to them only several months later, after Granite filed its petition. Granite alleges the City’s delay and failure to disclose this information violated the Right-to-Know law.
Granite’s Attorney’s Fees and Costs
Granite seeks to recover its attorneys’ fees and costs for the City’s alleged violations above because, it argues, this lawsuit was “necessary in order to enforce compliance with the provisions of this chapter or to address a purposeful violation of this chapter,” and the City knew or should have known that “the conduct engaged in was in violation of this chapter.” See RSA 91-A:8, I.
In Porter v. Town of Sandwich, Case No. 212-2014-CV-180 (Aug. 14, 2015), the Carroll County Superior Court awarded over $200,000 in attorney’s fees and costs to the homeowners (the Porters) for the denial of their Right to Know request for town records, emails, and other documents related to town approvals for a structure on the Squam Lake property adjoining his property. The Court ruled that emails and draft documents distributed among town officials constituted illegal, unposted meetings, and that the Porters were entitled to the emails, the documents, and pre-edited drafts of meeting minutes. The Court found the Town’s failure to timely disclose various documents based on a “good faith” mistake still violated the statute. The Court also found that private discussions between board of selectmen members in between public meetings about the Porters’ application violated the Right-to-Know law. With respect to attorney’s fees, the Court found that the lawsuit was necessary to enforce compliance with the statute because the Town did not produce some of the information requested until after the lawsuit was filed; and the Court also found the Town should have known its conduct violated the statute because it failed to articulate any legitimate reason or basis for withholding information that should have been disclosed.
Here, Granite contends the City’s conduct compels an award of attorney’s fees and costs, including, but not limited to: (a) its misapplication of statutory exemptions and privileges to the portions of the What’s App string it has redacted; (b) its deletion of Mayor Donchess’s emails; (c) its deletion of Ms. MacKay’s text messages; (d) its failure to respond to portions of the first Right-to-Know request; (e) its failure to respond to the second Right-to-Know request within five days; (f) the fact the City demanded six months to produce records responsive to other requests; and (g) its refusal to provide records in response to many of the items in the second Right-to-Know request before Granite filed its petition.