N.H. Challenge, Inc. v. Comm'r, N.H. Dep't of Educ.

• Decision Date: 11 August 1997
• Docket Number: No. 95–882.,95–882.
• Citation: 698 A.2d 1252,142 N.H. 246
• Court: New Hampshire Supreme Court
• Parties: NEW HAMPSHIRE CHALLENGE, INC. and another v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF EDUCATION and another.

142 N.H. 246

698 A.2d 1252

NEW HAMPSHIRE CHALLENGE, INC. and another

v.COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF EDUCATION and another.

No. 95–882.

Supreme Court of New Hampshire.

Aug. 11, 1997.

Disabilities Rights Center, Inc., Concord (Ronald K. Lospennato on the brief and orally), for plaintiffs.

Jeffrey R. Howard, Attorney General (Ann F. Larney, Assistant Attorney General, on the brief, and Lucy C. Hodder, Assistant Attorney General, orally), for defendants.

HORTON, Justice.

Ruling on a petition brought under New Hampshire's Right–to–Know Law, see RSA ch. 91–A (1990 & Supp.1996), the Superior Court (Manias, J.) concluded that: (1) the plaintiffs, New Hampshire Challenge, Inc. and Disabilities Rights Center, Inc., were entitled to certain documents requested from the defendants, the commissioner of the New Hampshire Department of Education and the New Hampshire Board of Education; and (2) the plaintiffs were not entitled to attorney's fees under RSA 91 -A:8, I (1990). The plaintiffs appeal the denial of their request for attorney's fees. We reverse and remand.

In January 1995, the board of education established a task force to review special education laws and policy in the State. The task force was divided into five subcommittees, whose responsibilities included producing reports concerning recommended changes in various aspects of special education. Each subcommittee submitted its report to the task force in July 1995.

On September 29, 1995, the attorney for the plaintiffs wrote to the defendants requesting access to records related to the task force. See RSA 91–A:4, IV (1990). The parties essentially agree that the plaintiffs' request encompassed two general classes of documents: (1) written communications between and among task force participants, members of the board of education, and employees of the department of education concerning task force activities; and (2) reports and documents, including drafts, generated by the subcommittees in developing their recommendations to the task force.

On October 11, 1995, the defendants responded to the plaintiffs' request without providing any records. Cf. id. (directing public body or agency to respond "within 5 business days of request"). The defendants stated that the "Department of Justice has advised us that RSA 91–A:4 does not apply to internal draft documents but applies only to completed documents." After receiving no additional response from the defendants, the plaintiffs, on October 23, 1995, filed a petition in superior court to obtain the requested records. See RSA 91–A:7 (1990).

On November 7, 1995, the plaintiffs received a draft of the task force's report, which, the superior court determined, "incorporated in some form" the final recommendations of the subcommittees. On November 16, 1995, the defendants provided a further response to the plaintiffs' request and produced documents responsive to one part of that request: documents evidencing written communications between and among specified persons concerning activities of the task force. The defendants' attorney acknowledged that the defendants' letter of October 11 "did not really address" that aspect of the plaintiffs' request. The defendants, however, maintained their "position that ‘works in progress,’ drafts, or preliminary ideas which represent the thought process or decision making process of a government board or agency [are] not subject to" disclosure under RSA chapter 91–A.

In their subsequent response to the petition, the defendants challenged disclosure of the draft documents and asserted that the portion of the request concerning written communications had been "inadvertently overlooked initially." Accordingly, the principal area of continuing dispute concerned the reports developed by the subcommittees of the task force. During the hearing on the petition, the defendants' attorney explained that the inadvertence with respect to the communications documents resulted from the defendants' primary focus on objecting to disclosure of the reports of the subcommittees.

Rejecting the defendants' position that the subcommittee reports were exempt from disclosure, the superior court granted the plaintiffs' petition. As to the plaintiffs' request for attorney's fees, the court reasoned:

In this case, the defendants refused the [plaintiffs'] request for the subcommittees' reports on the advice of the Department of Justice. The Court finds that the defendants' delay in providing the other requested materials to the [plaintiffs] was due to inadvertence. Thus, the defendants' conduct does not rise to the level of "knowing violation" and attorney's fees are not proper in this case.

The plaintiffs appeal the ruling on attorney's fees, arguing that the court erred: (1) in holding that inadvertence justifies a denial of attorney's fees; (2) in finding that the defendants' failure to promptly provide requested documents was, in fact, inadvertent; and (3) in failing to conclude that the defendants' dilatoriness in responding and complying, especially as to the communications documents, see RSA 91–A:4, IV, required an award of attorney's fees.

The interpretation of a statute, including the Right–to–Know Law, "is to...