N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit

• Decision Date: 02 June 2016
• Docket Number: No. 2015–0366,2015–0366
• Citation: 143 A.3d 829,169 N.H. 95
• Parties: NEW HAMPSHIRE RIGHT TO LIFE & a. v. DIRECTOR, NEW HAMPSHIRE CHARITABLE TRUSTS UNIT & a.
• Court: New Hampshire Supreme Court

169 N.H. 95
143 A.3d 829

NEW HAMPSHIRE RIGHT TO LIFE & a.
v.
DIRECTOR, NEW HAMPSHIRE CHARITABLE TRUSTS UNIT & a.

No. 2015–0366

Supreme Court of New Hampshire.

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.

169 N.H. 99

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

169 N.H. 100

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.

143 A.3d 837

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, 95 A.3d 103 (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, ––– U.S. ––––, 136 S.Ct. 383, 193 L.Ed.2d 412 (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

169 N.H. 101

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, 95 A.3d 103 ; 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, 95 A.3d 103.

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 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

143 A.3d 838

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

169 N.H. 102

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 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, 529 A.2d 909 (1987) ("Arguments not briefed are waived on appeal.").

143 A.3d 839

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, 116 A.3d 1054 (2015)

169 N.H. 103...