Hampton Police Ass'n Inc. v. Town of Hampton., 2010–323.

• Decision Date: 28 April 2011
• Docket Number: No. 2010–323.,2010–323.
• Citation: 162 N.H. 7,20 A.3d 994
• Parties: HAMPTON POLICE ASSOCIATION, INC.v.TOWN OF HAMPTON.
• Court: New Hampshire Supreme Court

162 N.H. 7

20 A.3d 994

HAMPTON POLICE ASSOCIATION, INC.

v.TOWN OF HAMPTON.

No. 2010–323.

Supreme Court of New Hampshire.

Argued: March 17, 2011.Opinion Issued: April 28, 2011.

McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the brief and orally), for the petitioner.Mark S. Gearreald, of Hampton, by brief and orally, for the respondent.Paul G. Sanderson, of Concord, by brief, for The Local Government Center, as amicus curiae.DALIANIS, C.J.

The respondent, Town of Hampton (Town), appeals the orders of the Superior Court ( McHugh, J.) granting the request for injunctive relief filed by the petitioner, Hampton Police Association, Inc. (Association), and ordering the Town to provide the Association with copies of certain invoices from the Town's outside counsel. The Town contends that the trial court erroneously: (1) ordered the Town's outside counsel, as its agent, to prepare a revised invoice listing entries devoted only to a particular matter; and (2) failed to rule that the narrative descriptions contained in the original and revised invoices were “confidential” under the Right–to–Know Law because they were subject to the attorney-client privilege. See RSA ch. 91–A (2001 & Supp.2010). We affirm in part and reverse in part.

I. Background

The record reveals the following facts. On September 2, 2009, counsel for the Association wrote to Frederick Welch, the Town's manager, requesting, pursuant to the Right–to–Know Law, “copies of each and every invoice from any and all Attorneys who have represented the Town or given advice regarding the so-called Probationary Employees' grievance and subsequent Arbitration” as well as “the same information with regard to the Petition to Enforce the Arbitrator's Award.” In his September 10, 2009 response, Welch advised the Association's attorney “that the invoices from [the Town's outside] attorneys ... contain confidential detailed billing narratives which are protected by the attorney-client privilege,” and, thus, “are excepted from the requirements of the Right to Know Law.” Welch further explained that only the August 20, 2008 bill from outside counsel contained time entries that related solely to the probationary employees' grievance, arbitration and subsequent petition to enforce the arbitration award; the remaining invoices addressed “a variety of other legal matters” and were not limited to the dispute in question. Thus, Welch enclosed only the last two pages of outside counsel's August 20, 2008 invoice.

On September 15, 2009, the Association's counsel sent the Town's attorney a letter explaining that his “request was for the time and monies spent by the Town on the Arbitration and subsequent Superior Court Appeal,” and that he was “not requesting any other information, including possible privileged” information. The Association's counsel suggested that the Town “redact any information that it believes is privileged,” and observed that “[t]he amount of money spent by the Town is not privileged and is the proper subject of [his] request.” In a September 22, 2009 letter, counsel for the Town replied that the Town did not “have any documents beyond those that have already been provided [to the Association's attorney] that segregate out the time and charges on [the grievance, arbitration and petition to enforce arbitration award at issue].” On September 30, 2009, the Association brought the instant petition for injunctive relief, asking the trial court to, among other things, order the Town to produce the requested information.

The trial court held a hearing on the matter on January 14, 2010, at which Town counsel reiterated that outside counsel's invoices generally did not identify the work performed by case. Town counsel provided the court with outside counsel's invoices for the relevant time period for in camera review, explaining that thirty-four of the sixty-nine entries concerned only the matter for which the Association sought information, but that the remaining thirty-five entries concerned multiple matters. The Town argued that all of the descriptive narratives in the invoices were privileged from disclosure by the attorney-client privilege.

Following its in camera review of the invoices, the trial court ruled that the Association was “entitled to receive copies of bills which reflect simply the work done on the matters at issue, for example telephone conversation with Town manager, without the specifics of their discussion, along with an accompanying dollar amount for the services rendered.” The court ordered the Town to photocopy the thirty-four entries that were devoted to the matter for which the Association sought information. For the remaining entries, the court ordered the Town's outside counsel, as the Town's agent, to “approximate how many of the entries were devoted to the subject matter at issue and forward a revised bill to [the Association's] counsel listing the general subject matter and amount approximated for the service.” Because complying with its mandates would entail “extra work” by the Town and its outside counsel, the court “elect [ed] not to require the Town to be responsible for any portion of the [Association's] attorney['s] fees in having to file the within petition.” See RSA 91–A:8, I (2001).

Although the trial court's order obliged the Town's outside counsel only to list the general subject matter and amount approximated for each service, outside counsel's revised invoice contained detailed narratives about the work performed for the Town. Arguing that the detailed narratives were subject to the attorney-client privilege and, therefore, not subject to disclosure, the Town asked the court to be relieved of its obligation to forward the revised invoice to the Association. The trial court denied the Town's request for relief and sent the revised invoice to the Association itself. This appeal followed.

II. Discussion

Resolving the issues on appeal requires that we interpret the Right–to–Know Law. “The interpretation of a statute, including the Right–to–Know Law, is to be decided ultimately by this court.” N.H. Challenge v. Commissioner, N.H. Dep't of Educ., 142 N.H. 246, 249, 698 A.2d 1252 (1997) (quotation omitted). “The purpose of the Right–to–Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 438, 821 A.2d 1014 (2003) (quotation omitted). Thus, the Right–to–Know Law helps further our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted. Id.; see N.H. CONST. pt. I, art. 8. While the statute does not provide for unrestricted access to public records, we resolve questions regarding the Right–to–Know Law with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents. Lambert v. Belknap County Convention, 157 N.H. 375, 379, 949 A.2d 709 (2008). Therefore, we construe provisions favoring disclosure broadly, while construing exemptions narrowly. Id. “We also look to the decisions of other jurisdictions, since other similar acts, because they are in pari materia, are interpretively helpful, especially in understanding the necessary accommodation of the competing interests involved.” Id. (quotation omitted). “When a public entity seeks to avoid disclosure of material under the Right–to– Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure.” Id. (quotation and brackets omitted).

A. Revised Invoice

The Town first argues that the trial court erred when it required its outside counsel, as its agent, to create a revised invoice for submission to the Association. The Town asserts that by requiring outside counsel to prepare a revised invoice, the trial court violated RSA 91–A:4, VII (Supp.2010), which states that the Right–to–Know Law should not be construed “to require a public body or agency to compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency.” The Association counters that the trial court's order merely required the Town (through outside counsel acting as the Town's agent) to “create a subset of already existing information.” The Association asserts, “All of the information was in one set of documents. The Town had only to redact the non[-]requested information.” Thus, the Association contends, contrary to the Town's assertions, the court order did not require the Town to compile data into a format that the Association specifically requested. See Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376, 379, 788 A.2d 255 (2001).

While the Right–to–Know Law guarantees “[e]very citizen ... the right to inspect ... and to copy” all public records “except as otherwise prohibited by statute,” RSA 91–A:4, I (Supp.2010), it specifically does not “require a public body or agency to compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency,” RSA 91–A:4, VII. In Brent v. Paquette, 132 N.H. 415, 426, 567 A.2d 976 (1989), for instance, we held that the Right–to–Know Law “does not require public officials to retrieve and compile into a list random information gathered from numerous documents, if a list of this information does not already exist.” The plaintiff in Brent had requested a school superintendent to create a list containing the names of children in the school district, their parent's names, and their addresses. Brent, 132 N.H. at 426, 567 A.2d 976. “[A]lthough the children's names, their addresses, and the names of their parents, appear[ed] on registration cards and attendance records, the requested information ha[d] never been compiled into a single list.”...