Martin v. City of Rochester
| Decision Date | 09 June 2020 |
| Docket Number | No. 2019-0150,2019-0150 |
| Citation | 239 A.3d 1002,173 N.H. 378 |
| Parties | Paul MARTIN v. CITY OF ROCHESTER |
| Court | New Hampshire Supreme Court |
Douglas, Leonard & Garvey, P.C., of Concord (Jared Bedrick on the brief), and The MuniLaw Group, of Epsom (Tony F. Soltani orally), for the plaintiff.
The Office of the Rochester City Attorney, of Rochester (Terence M. O'Rourke, city attorney, on the memorandum of law and orally), for the defendant.
The plaintiff, Paul Martin, appeals an order of the Superior Court (Houran, J.) denying his request for declaratory and injunctive relief against the defendant, City of Rochester (city), and ruling that the city's technical review group (TRG) is not a public body for purposes of the Right-to-Know Law, see RSA ch. 91-A, and that the city's copy fee schedule is in compliance with RSA 91-A:4, IV (Supp. 2016). On appeal, the plaintiff argues that: (1) the TRG is a "public body," as defined by RSA 91-A:1-a, VI(d) (2013), because it is an "advisory committee," and is therefore subject to the open-meeting requirement of RSA 91-A:2 (Supp. 2019) ; and (2) the city's copy fee schedule is prohibited by RSA 91-A:4, IV, as it charges citizens requesting a copy of a public record more than the "actual cost" of making the copy. For the reasons that follow, we affirm.
The following facts were found by the court after a bench trial, or are otherwise derived from the record. The TRG is a "self-directed work team"1 in the city, originally established by a former city manager. According to its statement of purpose, "the TRG is to review projects that are submitted for review to the Planning Board, including site plans and subdivisions." The TRG is made up of city employees, including the chief planner or designee, city engineer, director of code enforcement, fire marshal, police captain, economic development manager or a designee (who chairs the group), and a representative of the conservation commission. The TRG does not have a separate budget and is funded by the departments from which the representatives come.
The city manager is the sole appointing authority for the TRG and has the ability to dissolve or expand the TRG without the approval of the city council. The city manager can appoint or remove TRG members at will. Neither the city council nor the planning board has any input or authority over the TRG. The TRG is not included in the city's charter or any city ordinance.
TRG meetings are not considered public meetings by the city for public notice purposes, and therefore no notices are sent and no minutes are taken at the meetings, although dates and times of the meetings are usually listed on the city's website. Participation and observation by the public are not permitted at TRG meetings. The secretary for the planning department is responsible for scheduling TRG meetings and sending electronic copies of the meeting agenda, applications to be reviewed, and accompanying plans to members of the TRG. The applications and project plans are placed in the planning board file and are available for inspection by the public. TRG members typically communicate using their city e-mail addresses, and although they communicate frequently in their capacity as city employees, they rarely communicate about TRG matters. E-mails sent using city e-mail addresses are captured on the city e-mail server and can be requested by the public for inspection.
At trial, the city manager testified that the TRG members advise applicants as well as the planning board, although the TRG has no binding decision-making authority. The director of planning and development for the city testified that neither the TRG as a whole nor its individual members have the authority to grant or deny conditional use permits, waivers, or variances. The director of planning further testified that the city has a constitutional duty to assist applicants preparing to go before the planning board, and that the TRG is part of the city's process in meeting that obligation. To that end, the applicant, or the applicant's agent, presents the application to the TRG. Its members then comment on the plans and suggest changes in accordance with various city regulations, laws, and policies. The TRG does not act as a group; each member makes suggestions based upon that person's specific knowledge. The applicant is free to disregard the TRG's recommendations, and is also free to request additional meetings with the TRG before presenting plans to the planning board. Similarly, the applicant may also contact individual members of the TRG after the TRG meeting.
The city's economic development director testified that the TRG is a group of city employees who work in an informal setting where the applicant can ask questions to prepare for presentations to the planning board. Additionally, the economic development director explained that if the TRG did not exist, the applicant would still have to speak to each one of the staff members comprising the TRG separately before going in front of the planning board. The TRG streamlines the process by having all of the department representatives available to an applicant in one place at the same time. The economic development director further testified that the planning board is not a "rubber stamp" for the TRG. She stated that she has witnessed instances in which the planning board has rejected a project that members of the TRG believed was ready for approval, approved a project that members of the TRG expressed concerns about, and ignored the TRG's comments altogether. The TRG can neither advance nor stop a project from moving forward.
Following a TRG meeting, the city's chief planner prepares a summary of comments made by TRG members during the meeting that is provided to the applicant and placed in the planning board file, which is available for public inspection. The city's economic development director testified that the TRG does not have records of its own, as its only function is to review applications and assist applicants. However, she stated that the comments made on a project by members of the TRG are loaded into a database, which can then be seen by the planning board. This database is a cloud-based system used by city staff to view applications and their respective comments. It is accessible to the public, and an individual interested in accessing the system can create a free account to view comments made on applications, including those made by TRG members.
The plaintiff requested copies of certain documents from the city relating to the planning board and the TRG. The city charges a fee for making copies of city records or files: for black and white photocopies, the fee is fifty cents per page for the first ten pages and ten cents per page thereafter. At trial, the city presented evidence of fee schedules from New Hampshire municipalities that are similar to its own. The city manager testified that the city charges only for the cost of copying, not for the labor associated therewith, and that the cost of copying includes the cost of leasing copy machines, machine maintenance, capital costs, and the cost of paper. Based on his history and experience as finance director for the city, the city manager also testified that he believes the city is charging a reasonable approximation of the actual cost to the city for producing a photocopy, and that payments for copying are not a revenue source and do not produce a profit.
In October 2017, the plaintiff sent an e-mail to the city's attorney claiming that the city's practice of prohibiting the public from attending TRG meetings violates the Right-to-Know Law's open-meeting requirement. The city's attorney responded that the TRG does not hold "meetings" as defined in the Right-to-Know Law because the TRG is not a "public body" subject to its mandate. Subsequently, in May 2018, the plaintiff filed this suit seeking declaratory and injunctive relief from the city's practice of prohibiting the public from attending TRG meetings. The plaintiff's petition also challenged the city's copy fee schedule, claiming that it is excessive and chills or deters public access to government records. After a bench trial, the court denied the plaintiff's prayers for relief. This appeal followed.
Resolution of this case requires us to interpret the Right-to-Know Law, RSA chapter 91-A, which is a question of law that we review de novo. Prof'l Firefighters of N.H. v. Local Gov't Ctr., 159 N.H. 699, 703, 992 A.2d 582 (2010). When interpreting a statute, we first look to the plain meaning of the words used and will consider legislative history only if the statutory language is ambiguous. Id. The ordinary rules of statutory construction apply to our interpretation of the Right-to-Know Law. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475, 686 A.2d 310 (1996).
The plaintiff first argues that the TRG is a "public body" because it is an "advisory committee," and, therefore, its meetings must be open to the public. See RSA 91-A:2, I (defining a "meeting" as "the convening of a quorum of the membership of a public body"); II ( that "all meetings ... shall be open to the public"). The definition of "public body" includes five categories. See RSA 91-A:1-a, VI(a)-(e) (2013). Relevant to this appeal is the category defining a "public body" as: "Any legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto." RSA 91-A:1-a, VI(d). The statute defines an "advisory committee" as:
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