New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Remedies for Violation of the Right to Know Law

ATV Watch v. New Hampshire Department of Resources and Economic Development
No. 2006-020, 5/11/2007

ATV Watch (ATV), a nonprofit entity that monitors the use and development of all-terrain trails in New Hampshire, filed a Right to Know request with the New Hampshire Department of Resources and Economic Development (DRED). ATV sought documents related to DRED’s intended purchase of a large tract of land in Berlin, as well as its plan to develop all terrain vehicle and other trails once the land was purchased. When DRED failed to turn over all documents as requested, ATV filed a petition in superior court alleging violations of the Right to Know Law, including delayed disclosure and unlawful retention of public documents. ATV also sought an award of attorney’s fees and costs and injunctive relief. DRED acknowledged that some of its responses were “technically” untimely but argued that some delays were excusable and that it otherwise provided, within a reasonable time, all documents that were subject to disclosure. The trial court agreed. This case examines the remedies sought by ATV for the violation of the Right to Know Law.

The Right to Know Law, RSA chapter 91-A, requires that every public body, upon request for any public record reasonably described, make available for inspection and copying any such public record within its files when such records are immediately available for such release. If a public body is unable to make the record available for immediate inspection and copying, it shall, within five business days of request, make the record available or deny the request in writing with the reason for denial, or a written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request will be granted or denied. RSA 91-A:4, IV. Remedies available for violations of the Right to Know Law include (1) an award of reasonable attorneys fees and costs, (2) an order voiding action taken by a public body or agency and (3) an injunction. See RSA 91-A:8. Here, ATV requested the remedies of reasonable attorneys fees and costs and injunctive relief.

In requesting injunctive relief, ATV asked the trial court to find that DRED maintained insufficient documentation to satisfy RSA 215-A:41, II(f), and that DRED had demonstrated a pattern of noncompliance with the Right to Know Law. It sought an order compelling DRED to maintain adequate documentation, release information, comply with the Right to Know Law and RSA 215-A:41, and not engage in future Right to Know violations. With regard to the claim under RSA 215-A:41, II(f), the Court held that there was no violation of the statute since it applies only to state owned lands, and not land being considered for purchase by the State. At the time of ATV’s Right to Know petition, the State did not own the land in question and thus the provision requiring all State agencies involved in the development of a system of trails for all terrain vehicles to “provide opportunities for public input in all decisions regarding development of new or significantly revised trails on state lands” did not apply. With respect to ATV’s request for injunctive relief to order DRED to maintain adequate documentation, the Court observed that ATV failed to identify any particular legal requirement mandating that specific documents be created for recording by DRED. Noting that there is no standard by which a court could measure the adequacy of DRED’s record keeping, the Court found that ATV’s request would require the courts to construct one. The Court held that the creation of such a standard would best be left to the legislature. Finding that ATV failed to demonstrate that the trial court unsustainably exercised its discretion by dismissing ATV’s request for injunctive relief, the trial court’s dismissal was upheld.

ATV’s request for costs were denied by the trial court because the trial concluded that “there was not a knowing violation” on the part of DRED and it found that DRED responded to ATV’s requests “in a reasonable manner,” and any technical violations of the statute were “harmless” and did not prejudice the petitioner, ATV. The Supreme Court concluded that the trial court applied an erroneous legal standard. The issue of whether the agency “knew or should have known” that its refusal constituted a Right to Know violation is applicable to the issue of the award of attorney’s fees, but not for the award of costs. In awarding costs, a petitioner need only show that there was a violation of the Right to Know Law and that a lawsuit was necessary in order to make the information available. In determining whether a violation of the Right to Know Law has occurred, factors such as “reasonable speed”, “fault”, “harm”, “oversight” or “prejudice” on the part of the public body are not relevant. The time period to respond to the request for documents is absolute: immediately or within five business days of the request, (1) make the records available; (2) deny the request in writing, outlining the reasons for denial; or (3) acknowledge receipt of the request in writing, with a statement of the reasonable time necessary to determine whether or not the request will be granted or denied.

An award of attorney’s fees is required when the Right to Know Law is violated and (1) the lawsuit was necessary to make public information available; and (2) the body, agency or person knew or should have known that the conduct engaged was a violation of RSA chapter 91-A. ATV represented itself pro-se in the lower court proceedings and did not incur legal fees until after DRED disclosed all the documents to which it was entitled. The Court observed that the plain reading of the statute indicates that the legislature intended for a petitioning party to recover attorney’s fees when the retention of legal counsel is necessary to secure access to public documents. The Court found that no part of the lawsuit conducted after ATV retained counsel was necessary to make public documents available, and thus, the award of fee’s was denied. While the Court declined to award appellate counsel fees in this case, it stopped short of holding that such an award would never be warranted under RSA 91-A:8.

This case clarifies that public bodies will not be able to avoid liability for violating the time limits of RSA 91-A:4, IV by claiming good intentions, a mere oversight by staff, or that documents were made available within a reasonable time. Municipal officials should make sure all staff and officials understand the statutory requirements of the Right to Know Law to ensure that documents that are subject to disclosure are provided in the time period prescribed by the statute.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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