New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Consequences of 91-A violation may depend upon the harm caused

Hull v. Grafton County
No. 2009-527, 10/19/2010

This case provides a good illustration of how a public body can respond well after making procedural errors under RSA Chapter 91-A, New Hampshire’s Right to Know Law. The Grafton County Convention met to vote on salaries for the County’s elected officials. Unfortunately, the meeting was only noticed in one place (the NH House Record) rather than the two public places required by RSA 91-A:2, II. The plaintiff requested documents related to that meeting. After receiving them, he notified the Convention that the meeting had violated notice requirements. The Convention held another meeting shortly thereafter with proper notice and ratified the actions taken at the first meeting.

In his suit, the plaintiff alleged that the salary vote was “legally ineffective” because the original meeting had violated the law, and sought an injunction against payment of the salaries. However, the Court looked to the language of RSA 91-A:8, II which says that a court may invalidate an action of a public body taken at a meeting held in violation of the Right to Know Law, “if the circumstances justify such invalidation.” Invalidating the vote would mean the elected officials would have no salary. The Court agreed that this would cause injury to the public far greater than any suffered as the result of improper notice of the original meeting. Having been presented with no evidence from the plaintiff that the trial court had abused its discretion in deciding not to invalidate the Convention’s action, and finding that no one was harmed by the Convention’s actions, the Court dismissed the claim.

The plaintiff also asked the court to issue an injunction ordering the Convention to obey the law in the future and to appoint a monitor to review the Convention’s compliance. The trial court had refused this request, and the Supreme Court agreed. It was important that the Convention’s meeting was not secret or closed to the public, the documents had been produced when the plaintiff requested them and the Convention had met again promptly to fix the problem. Having cured the defects and not having caused harm to anyone, the Convention did not require a monitor or an injunction. Finally, the Court rejected the plaintiff’s request for attorney’s fees under RSA 91-A:8, I because the standard had not been met. The plaintiff failed to show he was refused access to the original meeting or denied access to the records they requested, so the lawsuit was not necessary in order to make the information available or the proceeding open to the public.

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC’s annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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