Watch v. N.H. Dep't of Transp..

• Court: New Hampshire Supreme Court
• Writing for the Court: HICKS, J.
• Citation: Watch v. N.H. Dep't of Transp.., 161 N.H. 746, 20 A.3d 919 (N.H. 2011)
• Decision Date: 26 April 2011
• Docket Number: No. 2009–788.,2009–788.
• Parties: ATV WATCH and another,v.NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION.

161 N.H. 746

20 A.3d 919

ATV WATCH and another,

v.NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION.

No. 2009–788.

Supreme Court of New Hampshire.

Argued: Jan. 13, 2011.Opinion Issued: April 26, 2011.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the petitioners.Michael A. Delaney, attorney general (Edith L. Pacillo, assistant attorney general, on the brief, and David M. Hilts, assistant attorney general, orally), for the State.HICKS, J.

The petitioners, ATV Watch and Andrew Walters, appeal orders of the Superior Court ( Mangones, J.) entered in this action for declaratory and injunctive relief against the New Hampshire Department of Transportation (DOT) seeking disclosure, under the Right–to–Know (RTK) Law, RSA ch. 91–A (2001 & Supp.2010), and Part I, Article 8 of the State Constitution of records related to allowance of the use of all terrain vehicles (ATVs) on former railroad corridors converted to rail trails by DOT. We affirm.

The following facts are recited in the trial court's orders or are supported in the record. On February 23, 2007, Walters, who is the director of ATV Watch, wrote to the commissioner of DOT regarding a recent inquiry by ATV Watch to the Federal Highway Administration (FHWA) asking “FHWA to clarify the Federal Statutes related to motorized use of the rails trails that were purchased by the State using Federal Transportation Enhancement (TE) funds.” Walters inquired whether the State had any information contrary to the conclusion that federal law prohibited the use of motorized vehicles on such trails, with the exception of, under certain conditions, snowmobiles. David Brillhart, assistant commissioner of DOT, responded that the issues Walters raised “have prompted discussions with the [FHWA] and the NH Department of Resource[s] and Economic Development” (DRED), and that once a “tentative resolution” was reached, he would inform Walters of DOT's “position and our proposed course of action.”

In an April 17, 2007 e-mail to Brillhart, Walters requested information in the event “the State intends to ‘work around’ the restrictions to ATVs.” The petitioners do not contend that this e-mail constitutes a RTK request.

Walters e-mailed Brillhart again on July 24, 2007, stating, in part, “Under Article 8 of the New Hampshire State Constitution and under New Hampshire's Right to Know Law (RSA 91–A) I am asking to review all governmental records in the custody or control of [DOT] related to motorized use of New Hampshire's TE funded rail trails.” Brillhart responded, by letter dated July 30, 2007, that DOT had “started assembling the information pertaining to [Walter's] request” and that “[g]iven available resources and the scope of [the] request,” he expected to have the records available by September 17, 2007.

Walters contacted DOT again on July 31 and August 6, 2007, seeking disclosure of the requested material and contending that DOT's delay in disclosing documents violated the RTK law. On August 22, Brillhart wrote Walters that a portion of the materials he requested had been assembled and was available to him by appointment with DOT personnel. Brillhart specified that the information was gathered from his project files and the files of DOT employees Ram Maddali and Bill Cass. He also specified that DOT was not releasing “preliminary draft correspondence ... prepared during the months of March, April, May, June and July 2007,” or “confidential attorney/client e-mail communications between attorneys within the Department of Justice and [DOT] ... span[ning] from March 1, 2007 through August 17, 2007.” In addition, the letter identified seven documents from which DOT was redacting certain portions that “contain privileged communications or personal notes.”

Walters e-mailed Brillhart on August 31, requesting that DOT reconsider its refusal to disclose certain governmental records. Brillhart responded by letter dated September 13, 2007, stating that the requested information had been assembled and was available to Walters by appointment. He also identified two additional items of correspondence from which DOT was redacting exempt information. Finally, Brillhart declined to reconsider DOT's decision to withhold certain documents.

On November 2, Walters again e-mailed Brillhart asking for an update on his RTK requests and was informed in a November 5 letter from Brillhart that DOT had no new correspondence, other than Walter's, or additional information to release. Walters e-mailed Brillhart on November 21, criticizing DOT's November 5 letter as being “unresponsive to a number of issues we raised.” In particular, Walters requested that DOT identify the documents that were being withheld under the various categories of privilege or exemption claimed by DOT, and that DOT give specific reasons for withholding nineteen documents identified by Walters and any additional items that DOT was not releasing. In response, Brillhart declined to offer further details, stating that DOT had “complied with New Hampshire law in responding to your requests.”

The petitioners filed their petition for declaratory judgment, injunctive relief, fees, costs and sanctions on January 24, 2008. At a hearing on February 11, 2008, DOT indicated that it had given the petitioners all of the records requested, except for some materials recently located and other materials redacted or withheld on the basis of privilege or exemption. Following the hearing, DOT provided the court under seal with unredacted copies of the withheld documents, along with an index of those materials, for in camera review. The court ordered that the index be provided to the petitioners, noting that it would “utilize the [DOT] index as a public Vaughn index for purposes of apprising the [petitioners] of the redacted or withheld materials and the positions asserted by [DOT] as to those items.” See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973); Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 548–49, 705 A.2d 725 (1997) (discussing use of Vaughn index).

Subsequently, the court found that it had difficulty matching some of the withheld items to the descriptions in DOT's index. Therefore, on June 24, 2008, the court ordered DOT to prepare for the court and provide to the petitioners a new Vaughn index that “identifies the withheld documents by a reasonable description and by reference to their numbering stamp numbers or equivalent numbering” and “set[s] forth the nature of the privilege or grounds for confidentiality that is asserted concerning each withheld document.”

On August 21, following its in camera review, the court issued its order on the merits. The court individually addressed 28 items, which it labeled as items A through BB, and determined that all were appropriately withheld or redacted, with the exception of an e-mail string on one item and with the caveat that two items were properly withheld as drafts “if not sent to addressee.” The grounds for nondisclosure consisted of privilege as to “[a]ttorney material” or “[a]ttorney-client material,” or exemption as to notes or drafts under RSA 91–A:5, VIII and IX (Supp.2010).

The petitioners unsuccessfully moved to extend the proceedings to conduct discovery, and then asked the court to issue a final order and to award attorney's fees and costs pursuant to RSA 91–A:8 (Supp.2010). In an order dated September 18, 2009, the court declined to reconsider its rulings on privilege and denied the request for fees, noting that “to a large degree, [the] petitioners appear to be seeking a remedy of an assessment of counsel fees for a period of time during which [they] did not have legal counsel and during which they had not incurred expenses for legal counsel.” The petitioners appeal.

“Resolution of this case requires us to interpret the Right–to–Know Law, ... 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. 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. (quotation omitted).

On appeal, the petitioners first seek a ruling that “DOT unlawfully limited the scope of its search” for material sought in the petitioners' RTK request. They contend that “[i]t appears the [trial] court did not address this issue.” Nevertheless, as the issue was cited in the petition as a specific RTK violation, and discussed at the February 11, 2008 hearing, we interpret the court's failure to find a violation as a rejection of the petitioners' position, and review it as such.

RSA 91–A:4 provides, in part:

Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied.

RSA 91–A:4, IV (Supp.2010). We have not yet had occasion to specifically address the adequacy of a public body's or agency's search in response to a RTK request. Cf. N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 440, 821 A.2d 1014 (2003) (noting that while an agency does not have “to create a new document in response to a [RTK] request,” it may be required to “assemble existing...