Prof'l Firefighters of N.H. v. Local Gov't Ctr., Inc.

• Decision Date: 29 January 2010
• Docket Number: No. 2009–215.,2009–215.
• Citation: 159 N.H. 699,992 A.2d 582
• Court: New Hampshire Supreme Court
• Parties: PROFESSIONAL FIREFIGHTERS OF NEW HAMPSHIRE v. LOCAL GOVERNMENT CENTER, INC. and another.

159 N.H. 699

992 A.2d 582

PROFESSIONAL FIREFIGHTERS OF NEW HAMPSHIRE

v.LOCAL GOVERNMENT CENTER, INC. and another.

No. 2009–215.

Supreme Court of New Hampshire.

Argued: Oct. 8, 2009.

Opinion Issued: Jan. 29, 2010.

Molan, Milner & Krupski, PLLC, of Concord (Glenn R. Milner on the memorandum of law and orally), for the petitioner.

Hinckley, Allen & Snyder LLP, of Concord (Christopher H.M. Carter and Kevin E. Verge on the brief, and Mr. Carter orally), for the respondents.

BRODERICK, C.J.

The respondents, Local Government Center, Inc. (LGC) and its subsidiaries, appeal an order of the Superior Court (Mangones, J.) granting summary judgment in favor of the petitioner, Professional Firefighters of New Hampshire (Professional Firefighters), and ruling that: (1) two of LGC's subsidiaries are subject to the Right–to–Know Law, RSA ch. 91–A (2001 & Supp.2009); (2) certain salary information for LGC employees is subject to disclosure; and (3) Professional Firefighters is entitled to attorney's fees incurred in securing the requested salary information through litigation. We affirm in part, vacate in part and remand.

I

This is the second time these parties have been before us. See Prof'l Firefighter of N.H. v. HealthTrust,

151 N.H. 501, 861 A.2d 789 (2004). In reciting the facts related to the present dispute, we rely upon the trial court's order granting summary judgment and the undisputed facts in the record before us.

In 1941, the New Hampshire Municipal Association was formed to provide legal, legislative advocacy, and other services to its members, which are comprised of political subdivisions. Its self-defined purpose is "[t]o promote good municipal government and thereby promote the growth and prosperity of cities, towns and villages." The Association later was renamed the LGC. Currently, LGC is a single organization that owns and manages the following subsidiaries: New Hampshire Municipal Association, LLC (NHMA); Local Government Center HealthTrust, LLC (LGC HealthTrust); Local Government Center Real Estate, Inc. (LGC Real Estate); Local Government Center Property–Liability Trust, LLC (LGC Property–Liability); and Local Government Center Workers Compensation Trust, LLC, which merged into LGC Property–Liability. LGC bylaws indicate that LGC manages its subsidiaries through a single board of directors comprised of municipal public officials, school public officials, employee officials and a county public official.

The subsidiaries perform different functions. NHMA provides lobbying and training services to municipalities. NHMA's purpose, as stated on its "CERTIFICATE OF FORMATION" filed with the Secretary of State, is "[t]o strengthen the quality of municipal government through provision of information, policy development and cooperation with the State of New Hampshire, the Legislature and other agencies." LGC HealthTrust and LGC Property–Liability operate pooled risk management programs under RSA chapter 5–B. Participation in these programs requires: (1) status as a municipality; (2) membership in LGC; (3) a contractual agreement with either LGC HealthTrust or LGC Property–Liability; and (4) contractual participation with NHMA. With respect to LGC Real Estate, the trial court noted that " [p]articipating municipalities in LGC have no direct membership or contractual relationship with LGC Real Estate, which is said to ‘merely provide [ ] real estate ownership and management to LGC, with no direct benefit or service provided to any municipalities or school districts.’ "

In 2003, Professional Firefighters filed a Right–to–Know petition against LGC HealthTrust, seeking meeting minutes of its board of trustees and subcommittees, as well as a contract between it and Anthem Blue Cross & Blue Shield. The trial court granted the request, and LGC HealthTrust appealed. We held that LGC HealthTrust is a quasi-public entity subject to the Right–to–Know Law. See id. at 504–05, 861 A.2d 789. We remanded the case, directing the trial court to either conduct an in camera review or have LGC HealthTrust provide a Vaughn index to determine what information in the minutes and the contract should be exempt from disclosure. See id. at 507, 861 A.2d 789.

Subsequently, Professional Firefighters requested other documents from LGC and its subsidiaries, including salary and benefit information for LGC employees. LGC complied with certain requests, offered to negotiate disclosure terms for other documents, but declined to provide the salary and benefit records on the basis that they are internal personnel records under RSA 91–A:5, IV, and that no public interest would be served by disclosing them.

In March 2007, Professional Firefighters filed a petition under RSA chapter 91–A, seeking the withheld documents and an award of attorney's fees and costs related to the litigation. In response, LGC sent a letter to Professional Firefighters, which, without revealing individual salary figures, disclosed that in a particular year it had made salary payments totaling $6,120,946.68 to approximately 112 full-time employees. Professional Firefighters filed a motion for summary judgment, which the trial court granted, ruling that all LGC subsidiaries, including NHMA and LGC Real Estate, are subject to the Right–to–Know Law, and that LGC is required to disclose the specific salary information of its employees. It also ordered LGC to pay attorney's fees to Professional Firefighters for refusing to produce the salary information.

On appeal, we review the trial court's grant of summary judgment by considering the affidavits and other evidence in the light most favorable to the non-moving party. Smith v. HCA Health Servs. of N.H., 159 N.H. 158, 160, 977 A.2d 534 (2009). If this review does not reveal any genuine issues of material fact, i.e., facts that would affect the outcome of the litigation, and if the moving party is entitled to judgment as a matter of law, we will affirm. Id. We review the trial court's application of law to fact de novo. Id.

Resolution of this case requires us to interpret the Right–to–Know Law, RSA ch. 91–A, which is a question of law that we review de novo. ATV Watch v. N.H. Dep't of Resources & Econ. Dev., 155 N.H. 434, 437, 923 A.2d 1061 (2007).

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. 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.

Id. (quotations, brackets, ellipsis, and citation omitted).

II

We first address LGC's argument that the trial court erred in ruling that two of its subsidiaries, NHMA and LGC Real Estate, are subject to the Right–to–Know Law. LGC argues that because NHMA and LGC Real Estate are not staffed by public employees, do not manage money collected by governmental entities and do not perform an essential governmental function, they are not subject to the Right–to–Know Law. It particularly emphasizes that the subsidiaries do not perform essential governmental functions as, LGC contends, is required under our holding in Prof'l Firefighter of N.H. in order for an entity to be subject to the Right–to–Know Law.

Part I, Article 8 of the New Hampshire Constitution provides that "the public's right of access to governmental proceedings and records shall not be unreasonably restricted." This right is embodied within the Right–to–Know Law, which was enacted "to ensure ... the greatest possible public access to the actions, discussions and records of all public bodies." RSA 91–A:1. Indeed, as the statute's preamble recognizes, "[o]penness in the conduct of public business is essential to a democratic society." Id. Thus, the Law provides that "[e]very citizen ... has the right to inspect all governmental records in the possession, custody, or control of [all] public bodies or agencies." RSA 91–A:4, I.

Some entities are "not easily characterized as solely private or entirely public," Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 547, 705 A.2d 725 (1997), and "[n]ot all organizations that work for or with the government are subject to the right-to-know law," Bradbury v. Shaw, 116 N.H. 388, 389, 360 A.2d 123 (1976). However, an entity that has a distinct legal existence separate from the State and that functions independently from the State may nevertheless be subject to the Right–to–Know Law depending upon its structure and function. See, e.g., Bradbury, 116 N.H. at 389–90, 360 A.2d 123 ; Union Leader Corp., 142 N.H. at 547, 705 A.2d 725 ; Prof'l Firefighter of N.H., 151 N.H. at 504, 861 A.2d 789.

We have reviewed whether entities that work for or with the government are subject to the Right–to–Know Law on at least three occasions. In Bradbury, we considered the status of an industrial advisory committee formed by the mayor of Rochester. Bradbury, 116 N.H. at 389, 360 A.2d 123. We examined its composition (which included "newspapermen and members of the city council"), the frequency of its meetings (once per month), and its functions (which included reviewing land purchases the city had made, identifying city-owned property to possibly sell, arranging sale transactions and participating in land sale negotiations, discussing extension of city water and sewer lines and construction of new streets). See id. Ultimately, we concluded that the committee's involvement in governmental programs and decisions brought it within the scope of the Right–to–Know Law. Id. at 390, 360 A.2d 123.

In Union Leader, we considered the status of the New Hampshire Housing Finance Authority, a statutorily created entity charged with providing safe and affordable housing to the elderly and low income residents of New Hampshire. Union Leader Corp., 142 N.H. at 547, 705 A.2d 725. In so doing, we examined its structure and function as outlined in the...