New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Responding to Right to Know Law requests: Reasons for denial, searches, drafts, personal notes, attorney-client privilege

ATV Watch v. NH Department of Transportation
No. 2009-788, 4/26/2011

In this important Right to Know Law case, the Court addresses several issues concerning disclosure of governmental records, and the Court's analysis will be extremely helpful to municipalities in responding to Right to Know (RTK) requests going forward.

ATV Watch (ATV), a nonprofit entity that monitors the use and development of all-terrain trails in New Hampshire, filed a RTK request with the New Hampshire Department of Transportation (DOT) for records related to allowance of the use of all terrain vehicles on former railroad corridors converted to rail trails by DOT. ATV objected to the DOT's response to its request for documents for many reasons, among them: (1) the adequacy of the agency's search for records, (2) failure to give sufficient reasons for the exceptions claimed, (3) improper withholding of "draft" documents and notes made for personal use and (4) improper withholding of documents on the basis of the attorney-client or work product privileges.

Adequacy of a public body's or agency's search in response to a RTK request. ATV complained that the DOT improperly limited its search to emails starting with a particular date, when the request was for all documents beginning at an earlier date. Noting that it had never addressed the issue of adequacy of a search under the RTK law, the Court looked to the federal Freedom of Information Act (FOIA) and to decisions of other jurisdictions to conclude that the adequacy of the search is judged by a standard of reasonableness. Citing Lee v. United States Atty. for S. Dist. of Fla., 289 Fed. Appx. 377, 380 (11th Cir. 2008) with approval, the Court noted that:

[t]he search need not be exhaustive. Rather, the agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents. This burden can be met by producing affidavits that are relatively detailed, nonconclusory, and submitted in good faith. Once the agency meets its burden to show that its search was reasonable, the burden shifts to the requester to rebut the agency's evidence by showing that the search was not reasonable or was not conducted in good faith.

The record showed that DOT's search was broader than alleged by ATV, and the Court held that ATV had not provided sufficient evidence to raise substantial doubt concerning the adequacy of the search.

Failure to give sufficient reasons for the exceptions claimed. ATV complained that the DOT submitted "a list of records and a list of reasons" it was withholding from disclosure but made no effort to match up the records with the reasons. The Court took ATV's position as essentially requiring DOT to provide a Vaughn index when responding to a RTK request. A Vaughn index is a procedure that assists courts in evaluating large numbers of documents by providing the court with an index that includes a general description of each document withheld and a justification for its nondisclosure. The Court observed that the RTK law provides simply that when an agency denies a RTK request, it must "deny the request in writing with reasons." RSA 91-A:4, IV. Court decisions interpreting FOIA similarly have held that an agency need not provide a Vaughn index to respond to an initial request for documents. Adopting this rule, the Court held that the DOT's response was adequate.

Improper withholding of "draft" documents and notes made for personal use. ATV alleged that because some of the documents withheld by DOT were "too far along in development, were circulated to or created by an entity outside DOT, or contain facts," it was improper to withhold them. ATV argued that the phrase "preliminary drafts" in RSA 91-A:5, IX means that once a document moves beyond the "preliminary draft" stage and becomes either a "preliminary" document or a "draft," it is no longer exempt. The Court disagreed and held that the exemption is designed to "protect pre-decisional, deliberative communications that are part of an agency's decision-making process" and does not turn on whether the document is close to completion or whether the author of the document expects to alter it. Moreover, documents that contain facts (in this case, New Hampshire's definition of "snow traveling vehicles"), rather than opinions or suggestions not based on fact, may still be considered exempt as preliminary drafts as long as the documents are pre-decisional, deliberative communications. The Court stressed that the "nature of the process is more significant than the nature of the materials." It should be noted that the exemption may not apply in a case where such documents are disclosed to a quorum of the members of a public body. RSA 91-A:5, IX.

ATV also contended that if "notes or other materials made for personal use that do not have an official purpose..." were made on government time, they are disclosable unless they have no bearing on the agency's business. ATV objected to the redaction of notes made in the margins of certain letters and sticky notes. The Court observed that the law contemplates that such personal notes may be made on government time because the exemption specifically applies to notes made "during a governmental proceeding." Under ATV's interpretation, "every yellow-sticky note penned by a government official to help him or her remember a work-related task would be a public record." The Court concluded that "such absurd results" were not intended by the Right to Know law.

Improper withholding of documents on the basis of the attorney-client or work product privileges. The Court held that a communication from DOT to its attorney made to facilitate the rendering of legal services, including the issues the attorney would be focusing on, was properly withheld from disclosure.

ATV challenged redaction of the "to," "from" and "about" lines from an email to lawyers as improper. The Court held that it is appropriate to treat emails in the same manner as letters sent via the U.S. Postal Service, and the redactions are consistent with the common practice of withholding the entire mailed letter, including letterhead and addressee's name.

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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