Category: Violations

Adult Parole Board audit reveals multiple Right-to-Know Law violations

The State of New Hampshire Adult Parole Board Performance Audit Report dated April 2019 documents multiple Right-to-Know law violations.  The audit was performed by the State of NH Office of Legislative Budget Assistant based on a recommendation of the Joint Legislative Performance Audit and Oversight Committee.

The violations found include:

  1. The Board regularly conducted its administrative meetings in a manner contrary to Right-to-Know Law requirements.
  2. The Board was unable to provide minutes for eight of the 17 meetings during the audit period.
  3. The Board had at least three legal consultations during the audit period after its public meetings had adjourned. However, the Board did not limit its discussions to legal matters and did not reconvene to deliberate or finalize its decisions.
  4. [The Board] did not post meeting notices in two locations as required.
  5. The Board did not render final decisions in compliance with statute. Instead, the hearing panel informally discussed the matter until a general consensus was reached, and a member of the panel would announce the decision without any corresponding motions or votes.

The Audit Findings recommend the following:

  1. The Board comply with Right-to-Know Law requirements when conducting any Board business by posting notices, properly finalizing decisions, adopting minutes, and posting approved minutes;

    • enter into non-public session to discuss sensitive and confidential matters or materials; and
    • limit discussions to legal matters during consultation with legal counsel and deliberate and finalize decisions in public or non-public meetings.

  2. The Board immediately obtain clarification from the DOJ as to whether the Board should conduct hearings under its authority in public or non-public session. Regardless of the final determination for conducting hearings, the Board should begin developing formal procedures to comply with the Right-to-Know Law by:

    • posting notice of meetings in two public locations;
    • formally opening hearings by the Board Chair or designated chair;
    • ensuring verbatim recordings identify all members and persons appearing before the Board for the record;
    • making proper motions during hearings;
    • voting on final decisions; and
    • documenting, adopting, and retaining meeting minutes for each hearing day containing names of members present, persons appearing before the Board, brief description of subject matter, and final decisions.

  3. The Board formalize training of the Right-to-Know Law by incorporating the Memorandum and investigating the availability of training provided by the DOJ. The Board should require attendance of all Board members and key Board staff as part of formal training.
  4. The Board review administrative rules related to disclosing member votes and providing verbatim recordings to any person upon request, and remedy conflicts with statute.

Right to Know Lawsuit filed against City of Nashua by Real Estate Developer

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.

Factual Background

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’s Arguments

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.

 

 

 

 

County Government can’t recess their obligation to follow the Right To Know Law

sunshine week logo horiz-300x176

By Tom Tardif

When the Belknap County’s Delegation could not achieve a quorum, it recessed the assembly to another date and time to avoid the noticing requirements of RSA 91-A and RSA 24:9-c and 24:9–d which is a violation of RSA 91-A:2 II.

To date, not one of the 10 New Hampshire County Conventions has exercised its right to form a Charter commission.  For one, Belknap County’s Convention has never even adopted Rules of Order, Policy, or a Memorandum of Understanding defining its mission, authorities and activities. Accordingly, in the absence of a County Charter, only New Hampshire Law governs any County.

County government consist of three distinct public bodies:

  • The Convention
  • The Convention’s Executive Committee
  • The Commission

Each is embraced by the Right-to-Know law.  In order for any action to take place by either of these representative body’s, they shall  assemble as a majority or a quorum of the membership.  Also, only “yes” or “no” votes shall be included in the calculation of any majority (RSA 33:7-a).

The chair of the county convention / delegation shall set the time and place for the first meeting of the county convention to be held during the week of the second Wednesday of December of each even-numbered year, a notice of which shall comply with RSA 91-A and RSA 24:9-c and –d.

  • The chairperson of the convention or a majority of the members of the convention may, and the chairperson of the convention upon the written request of the county commissioners shall, call a further meeting or meetings of the county convention (RSA 24:9-c).
  • Officers and Executive Committee, at its first regular meeting, or at any subsequent meeting when necessary, the county convention shall elect a chairperson, vice-chairperson, clerk, and an executive committee (RSA 24:2).
  • The executive committee shall elect its chairperson, vice-chairperson, and clerk. Officers of the county convention may be officers of the executive committee an election that shall be public which shall not be by secret paper ballot (RSA 24:2-a).

Of the three aforecited County governmental bodies, only the Convention is bound by more stringent requirements;  In addition to RSA 91-A:2, II, per RSA 24:9- c “… further meeting or meetings” and RSA 24:9-d “…The clerk of the convention, or his or her designee, shall mail to each member of the convention a notice stating the time, place and purpose of further meetings at least 7 days before the day of the meeting and shall cause to be published a like notice at least 7 days before the day of the meeting in a newspaper of general circulation in the county.”

A quorum or majority thereof, or any legislative body, a governing body, commission, committee, or authority of any county, advisory committee thereto capable of conducting business.  Conversely, the absence a quorum renders an assembly incapable of conducting business. A quorum protects against unrepresentative action in the name of the public body by an unduly small number of members (RSA 91-A:1-a, III). All rights, authority and powers of the county commissioners shall be exercised only by vote of a majority of the county commissioners (RSA 28:1-b).

There should be no dispute that the chairperson of any government body may schedule a meeting.  The applicable laws allows the chairman, with or without a quorum to announce a new meeting date but no law absolves or precludes the requirements for a notice (RSA 91-A:2 or RSA 24:9-d).  What is well established in RSA 91-A:2, II and RSA 24: 9-d the absent a quorum negates any action taken, specifically a recess.

[Art.] 20. [Quorum, What Constitutes.] A majority of the members of the House of Representatives shall be a “quorum” for doing business.  Also, when the newly elected members of the New Hampshire Legislature take their oath of office they also sign an agreement that they will serve on the county convention. RSA 91-A1 -a, III describes a quorum or majority thereof, or any legislative body, a governing body, commission, committee, or authority of any county, advisory committee thereto capable of conducting business.  Conversely, the absence a quorum renders an assembly incapable of conducting business. A quorum protects against unrepresentative action in the name of the public body by an unduly small number of members.

Having cited the above, Belknap County’s Delegation in 2016, ignored all of the above when it could not achieve a quorum, it recesses the assembly to another date and time to avoid the noticing requirements of RSA 91-A and RSA 24:9-c and –d.  The Convention schedule a meeting in Laconia when the State Legislature was in session, which can’t have taken place. The Superior Court found nothing wrong with that process so it has been appealed to the Supreme Court (Thomas A. Tardif v. Belknap County Convention Case 2017-0650).  In addition the commissioners filed a counterclaim which was denied and now has filed a Mandatory appeal with the Supreme Court for cost and fees.

 

 

Tom Tardif is a member of Right to Know New Hampshire and a resident of Laconia. He can be emailed at righttoknownh@gmail.com

 

 

 

 

 

 

 

 

 

RTK law violated by NH law makers

As the country was celebrating sunshine week, one NH legislative committee was banning the recording of their public meeting – a clear violation of the Right-to-Know law.

On March 13th, the Finance Committee Division I was conducting a public meeting. While called a work session, it was a public meeting nonetheless.

This violation was recorded on video by David Ridley.

Here is a summary of the events which took place.

David Ridley attends a legislative committee work session and starts to video record.

The Chair says “There’s no photography in the committee room”.

Ridley asks “Under what law would I be prohibited from filming?”

The Chair says: “We have house rules; please direct that question to the Speaker’s office”

Security is summoned and tells Ridley he can’t record “By request of the chair”

Security is not willing to state the law or rule which forbids cameras during the work session.

Ridley continues to film the work session.

While he is recording, Someone says “Sir, you are being very disruptive to our meeting”

When he asks how is he being disruptive, a committee member replies ““You are using a camera and we have house rules that you’re not supposed to be using a camera”.

Security later says  “No recording because it’s not a public hearing”  “It’s a house rule, its disruptive to the hearing”.

The chairperson stated that recording the work session was against house rules.   However, according to House Rule #110:

  1. Open Meetings. All meetings of any committee of the House and Senate shall be open to the public subject to the provisions of N.H. RSA 91-A.

And RSA 91-A:2 II says ” …all meetings…shall be open to the public… Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras, and videotape equipment, at such meetings.”

Another committee member also stated recording was against house rules.  A total of 9 committee members were in attendance and not one of them knew house rule #110 or was willing to speak up and correct the violation.  That’s unfortunate, because had another member spoke up they could have invoked House Rule #100 (f) which requires the Chairperson “To explain or clarify any rule of procedure upon request”.

Security apparently did not know house rule #110 but they were certainly willing to enforce a house rule that no one was willing to reference and that, in fact, did not exist.

What transpired here is typical of what happens all too often in public meetings around the state. Officials tell the public you can’t do something that the Right-to-Know law says you can do.  But the officials don’t back up their position when asked.   Then, the simple request of asking for the law or rule to support their position is used to claim that the person is being ‘disruptive’.

This incident is just one more example which vividly demonstrates that New Hampshire public officials, at all levels of government, need more training in the Right-to-Know law.

For additional press coverage of this violation:

NH1

NH Political Buzz

Girard at Large

Photography is not a crime

RTK Case Settles Before Supreme Court Argument

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.

 

Officials told again not to charge people who copy documents with their own equipment

As detailed in an article published by the Union Leader,  lawyers for the city of Manchester told city officials they cannot charge a fee when people use their own equipment to copy or photograph public records.

According to the Right-to-Know Law RSA 91-A:4    “Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected…”

Furthermore, the law only allows for copy fees “If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency.”

In summary, per the Right-to-Know Law the public may inspect and make copies using their own equipment (i.e. a cell phone) without charge.

Right-to-Know Supreme Court Victory

Guest editorial by Donna Green.

Our state’s Right-to-Know Law became more robust on April 19. That’s when the New Hampshire Supreme Court issued a unanimous decision that public bodies must, if requested, provide documents in electronic format when they are maintained electronically.

For me, this was an enormous victory. As an elected member of the Timberlane Regional School Board, I have been trying to obtain the names, salaries and employment status of the school district’s 700 or so employees in a format suitable for detailed analysis.

My long journey to this victory began in December 2013.  Then a member of the Timberlane Regional School Budget Committee, I asked for the number of staff being funded by the proposed 2014/15 budget.  My request was ignored so I made my first ever Right-to-Know request.

SAU 55’s first and second response was that the information didn’t exist. My reply was one of incredulity.  I threatened to go to the Attorney General’s office. Superintendent Metzler then provided the information in Jan. 2014.  A few months later I was elected to the Timberlane Regional School Board.

As it happened, when Timberlane’s 2014/15 staffing report was filed with the Department of Education, there was a large disparity between the number of (full-time equivalent) staff given to me by the superintendent in January and that reported to the Department of Education. It seemed we budgeted for 35 positions that were not filled, but no explanation was ever provided for this discrepancy.

Then I learned that the Hampstead Budget Committee is given an electronic file of all positions and staffing costs in the Hampstead School District. This was a revelation because both Hampstead and Timberlane school districts are administered by SAU 55. So – the same administration using the same software gives Hampstead information that Timberlane didn’t even know existed.

Naturally, I then asked the Timberlane Regional School Board Chairman to provide the entire Timberlane School Board with the corresponding budget information that Hampstead receives concerning staffing. Timberlane’s Chairman at the time, Nancy Steenson, refused – saying it would be a waste of paper as no one on the Timberlane School Board has ever previously had use for such information. I ultimately responded with a Right-to-Know request for an electronic file.

No electronic version was forthcoming, but SAU 55 did make a paper printout available for inspection at their office by appointment and supervision by the Business Administrator.  Keep in mind the documents were in the hundreds of pages.  By policy, SAU 55 charges 50 cents a page for copies.  I would have had to pay hundreds of dollars; furthermore, a stack of paper copies would leave me with documents that couldn’t be searched or reorganized for analysis.

With the assistance of Right to Know New Hampshire and others, I filed a pro se case in Superior Court on February 3, 2015: Donna Green v. SAU 55, the Timberlane Regional School Board, Earl F. Metzler, and Nancy Steenson.  I argued that the Right-to-Know Law (RSA 91-A:4, V), , requires public bodies to produce electronic files when the documents requested exist electronically.

On March 9, 2015, Superior Court Judge David Anderson, although sympathetic to my case, ruled that public bodies have the choice to provide either paper or electronic format. I filed for reconsideration.  It was denied.

My husband and I were aghast. If we let this ruling stand, it would be embraced by less than forthcoming public bodies beyond Timberlane. Thankfully, Richard J. Lehmann of Douglas, Leonard & Garvey took my appeal to the NH Supreme Court.

On Jan. 7, 2016, Attorney Lehmann argued that the law does not give discretion to public bodies but, in fact, requires them to provide electronic format when documents are maintained electronically. Three suspenseful months later, the Supreme Court determined that the law might be somewhat ambiguous; nevertheless, in light of the purpose of the Right-to-Know Law, which is to provide the utmost information to the public, “…the plaintiff is entitled to the requested documents in electronic format.”

Although this is a victory for the citizens of New Hampshire, it is a tremendous black eye to the Timberlane Regional School District which will go down in history as the public body that wasted many thousands of taxpayer dollars trying to thwart one of its own board members from getting budget information in a usable format.

Not to go down without a fight, though, SAU 55’s superintendent immediately issued a policy change: electronic files will be provided only on a thumb drive delivered in unopened original packaging. That’s right: an SAU which is a service organization to the citizens of our school district and its governing body, the Timberlane Regional School Board, will not email any Right-to-Know responses. Board members and citizens must go to the SAU office during their restrictive hours of 8:30 am to 4 pm, Mon. – Fri., drop off a thumb drive and then return to pick it up.  Both SAU 55’s board and the Timberlane Regional School Board as a whole refused to take issue with this new policy.

As one of the Supreme Court justices asked of Timberlane’s lawyer during the hearing, “Why not just give her the information?”

No law can legislate common courtesy. I dropped off my thumb drive ($6) to SAU 55 with a fresh Right-to-Know request to follow.

I’m the public face of a public battle, but behind me are many people.  My husband, Arthur, has been more than half of all this with financial, factual and emotional support. Many others have helped, too, with the pro se brief, with publicizing the issue, and general encouragement. To Richard Lehmann, our steadfast advisor, goes our deepest gratitude and respect.

For more on the background of the staffing issue click here.

Donna Green serves as a Sandown representative to the Timberlane Regional School Board and is also member of Right to Know NH.

Additional press coverage of the Supreme Court victory:

http://www.fosters.com/article/20160424/NEWS/160429695/14325/NEWSLETTER100

http://www.unionleader.com/State-Supreme-Court-rules-public-has-right-to-electronic-government-information

http://www.concordmonitor.com/Home/Court-orders-district-to-produce-records-in-electronic-form-1638050

http://tritowntimes.net/2016/04/supreme-court-finds-favor-donna-green-vs-timberlane/

http://indepthnh.org/2016/04/20/court-public-entitled-to-public-records-in-electronic-format/

http://www.eagletribune.com/news/nh-supreme-court-rules-in-favor-of-donna-green-in/article_ff3e8758-0649-11e6-a266-4f5f196395a0.html

http://granitegrok.com/blog/2016/04/breaking-news-donna-green-wins-right-to-know-appeal-in-state-supreme-court