Union Leader Corp. v. N.H. Hous. Fin. Auth.
| Decision Date | 31 December 1997 |
| Docket Number | Nos. 95–802,96–008.,s. 95–802 |
| Citation | 705 A.2d 725,142 N.H. 540 |
| Court | New Hampshire Supreme Court |
| Parties | UNION LEADER CORPORATION and another v. NEW HAMPSHIRE HOUSING FINANCE AUTHORITY. |
Malloy & Sullivan, Manchester (Gregory V. Sullivan, on the brief and orally), for plaintiff Union Leader Corporation.
Hill & Barlow, P.C., Boston, MA (Joseph D. Steinfield, on the brief and orally, and Robert A. Bertsche, on the brief), and Backus, Meyer, Solomon & Rood, Manchester (Jon Meyer, on the brief), for plaintiff Monitor Publishing Co.
Stein, Volinsky & Callaghan, Concord (Peter G. Callaghan, on the brief and orally, and Diane Perin Hock, on the brief), for intervenors Northeast Community Development Group and Stephen M. Duprey.
Bell & Falk, P.A., Keene (Arnold R. Falk, on the brief), and Jane E. Kirtley, Arlington, VA, by brief, for the Reporters Committee for Freedom of the Press, as amicus curiae.
Defendant New Hampshire Housing Finance Authority filed no brief.
This consolidated appeal arises from petitions filed by the Union Leader Corporation (Union Leader) and Monitor Publishing Company (Monitor) (collectively the petitioners) seeking to gain access to documents under New Hampshire's Right–to–Know Law, RSA ch. 91–A (1990 & Supp.1996), pertaining to housing developments financed by the New Hampshire Housing Finance Authority (authority). The intervenors, Northeast Community Development Group (Northeast) and Stephen M. Duprey, appeal a series of orders of the Superior Court (Sullivan , J.), arguing that the court: (1) erred when it ordered the intervenors to prepare a detailed document index pursuant to Vaughn v. Rosen , 484 F.2d 820 (D.C.Cir.1973), cert. denied , 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), (Vaughn index); (2) arbitrarily and capriciously determined that the intervenors did not comply with its order; (3) impermissibly ordered summary disclosure of numerous documents as a sanction for noncompliance; and (4) erroneously ordered disclosure of certain documents that the court reviewed in camera . The intervenors also challenge the court's finding that the authority is subject to the Right–to–Know Law. The Union Leader filed a cross-appeal challenging the trial court's ruling that certain documents were exempt from disclosure. We affirm in part and reverse in part.
In March and April 1995, reporters for the Union Leader and Monitor filed requests pursuant to RSA chapter 91–A with the authority seeking documents pertaining to two housing developments, known as Woodland Green and Saco Woods, which had been partially financed by the authority. Northeast was the developer responsible for both projects, and Duprey is a principal in that firm. When the authority refused to turn over certain documents requested by the petitioners, each filed a petition for injunctive relief with the superior court seeking disclosure of the documents. See RSA 91–A:7 (1990). The petitions were consolidated, and the court subsequently allowed Northeast and Duprey to intervene in the litigation.
After many weeks had passed with no discernable progress in the litigation, the Monitor, in July 1995, filed a motion to compel the intervenors to produce a Vaughn index of the withheld documents for review by the trial court. As a result, the trial judge ordered the intervenors to produce a Vaughn index describing the withheld documents and offering an explanation of why such documents were exempt from disclosure under RSA chapter 91–A. The purpose of the index was to assist the court in determining which of the over 5,000 pages of requested documents should be reviewed in camera . While the intervenors did produce an index containing over 478 entries, the court concluded that the descriptions were too general and ordered the intervenors to prepare a second, more detailed index. The trial court warned that if it found the revised index was not in compliance, then the court would order summary disclosure. After the intervenors produced a "Further Memorandum" in early August 1995 to supplement the first Vaughn index, the Monitor moved to compel summary disclosure. In response, the intervenors filed a third version of the index, entitled a "Revised Further Memorandum." The court found that the intervenors had, for the most part, failed to comply with its order, and consequently ordered summary disclosure of most of the indexed documents. The court did review, in camera , a series of documents it found to be adequately described in the Vaughn index. In October 1995, the court issued a final order requiring disclosure of certain documents and finding the remainder exempt. The consolidated appeals and cross-appeal followed.
Part I, article 8 of the New Hampshire Constitution provides that "the public's right to access to governmental proceedings and records shall not be unreasonably restricted." The Right–to–Know Law provides that "[e]very citizen ... has the right to inspect all public records ... except as otherwise prohibited by statute or RSA 91–A:5." RSA 91–A:4, I (1990). It was enacted "to ensure ... the greatest possible public access to the actions, discussions and records of all public bodies." RSA 91–A:1 (1990).
The interpretation of the Right–to–Know Law is to be decided ultimately by this court. See Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475, 686 A.2d 310, 312 (1996). We resolve questions regarding the law with a view to providing the utmost information, see Menge v. Manchester, 113 N.H. 533, 537, 311 A.2d 116, 118 (1973), in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents. See Lodge v. Knowlton, 118 N.H. 574, 575, 391 A.2d 893, 894 (1978). Thus, while the statute does not provide for unrestricted access to public records, see Orford Teachers Assoc. v. Watson, 121 N.H. 118, 120, 427 A.2d 21, 23 (1981), we broadly construe provisions favoring disclosure and interpret the exemptions restrictively. See , e.g. , Society for Protection of N.H. Forests v. Water Supply and Pollution Control Comm'n, 115 N.H. 192, 194, 337 A.2d 788, 789 (1975).
We also look to the decisions of other jurisdictions, since "other similar acts, because they are in pari materia , are interpretatively helpful, especially in understanding the necessary accommodation of the competing interests involved." Wilson v. Freedom of Information Com'n, 181 Conn. 324, 435 A.2d 353, 359 (1980) ; see Board of Trustees v. Freedom of Info. Com'n, 181 Conn. 544, 436 A.2d 266, 270 (1980) ; cf. Lodge, 118 N.H. at 576–77, 391 A.2d at 895 ().
The Right–to–Know Law applies to "[a]ny board or commission of any state agency or authority." RSA 91–A:1–a, III (1990); see Lodge, 118 N.H. at 575, 391 A.2d at 893. The intervenors argue that the authority is not subject to the Right–to–Know Law because it is a private entity that functions independently of the State. "The ordinary rules of statutory construction apply to our review of the Right–to–Know Law, and we accordingly look to the plain meaning of the words used." Union Leader Corp. v. City of Nashua, 141 N.H. at 475, 686 A.2d at 312. Here, however, we are confronted with an entity that is not easily characterized as solely private or entirely public. While the declared intent of the statute is to create a "state housing finance authority," see Laws 1981, 466:1, X (emphasis added), it is also a "body politic and corporate having a distinct legal existence separate from the state and not constituting a department of state government." RSA 204–C:2 (1989). Moreover, in many of its day-to-day operations, the authority functions independently of the State. See RSA 204–C:8 (1989 & Supp.1996),: 9,:26,:44,:52 (1989).
In classifying the authority, we recognize that "any general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done," Bradbury v. Shaw, 116 N.H. 388, 390, 360 A.2d 123, 125 (1976) (quotation and brackets omitted), and that we must "construe[ ] the right-to-know law to further the statutory objectives of increasing public access to governmental proceedings." Orford Teachers Assoc. , 121 N.H. at 120, 427 A.2d at 23. Here, the balance favors a finding that the authority is subject to the Right–to–Know Law. The authority was created "to encourage the investment of private capital ... through the use of public financing." Laws 1981, 466:1, X. It is deemed "to be a public instrumentality and the exercise by the authority of the powers conferred by [RSA chapter 204–C] shall be deemed and held to be the performance of public and essential governmental functions of the state." RSA 204–C:2 (emphasis added). It is empowered to "work with other state and federal agencies." RSA 204–C:8, V (1989) (emphasis added). The authority performs the essential government function of providing safe and affordable housing to the elderly and low income residents of our State. See Laws 1981, 466:1, X. Accordingly, we hold that it is subject to the Right–to–Know Law. Cf. Doe v. Sears, 245 Ga. 83, 263 S.E.2d 119, 121–22, cert. denied , 446 U.S. 979, 100 S.Ct. 2958, 64 L.Ed.2d 836 (1980) ; Bradbury, 116 N.H. at 390, 360 A.2d at 125 (); A.R. Bldg. Co. v. Pa. Housing Finance, 93 Pa.Cmwlth. 140, 500 A.2d 943, 944 (1985).
The intervenors next argue that the court improperly abdicated its responsibility to review in camera the thousands of pages of documents at issue when it ordered preparation of a Vaughn index. The Vaughn index is a procedure developed by the federal courts to effectuate the goal of broad disclosure of public documents and assist trial courts in cases involving a large number of...
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