New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Superior Court finds numerous violations of RSA 91-A, but also rules that consultant’s documents may be exempt from disclosure as attorney “work product”

Cameron, et al. v. Marlborough Board of Selectmen
Cheshire County Superior Court, No. 213-2011-CV-337, 1/31/2012

The following summary is based on a decision of the New Hampshire Superior Court. Please note that (a) superior court opinions are not binding on the New Hampshire Supreme Court, and (b) at the time this summary went to print, it was still possible for this decision to be appealed to the New Hampshire Supreme Court.

In this superior court case, the court ruled that the selectmen had violated RSA 91-A in various ways over the course of the year 2011. However, the court also ruled in favor of the town on an important issue of the scope of the attorney-client privilege under the Right to Know Law.

The court ruled that the selectmen violated the cited sections of the statute in the following instances:

In support of its rulings in a 52-page decision, the court frequently cited the excellent New Hampshire Attorney General Right to Know Memorandum available online at www.doj.nh.gov.

The selectmen consulted legal counsel about dismissing the police chief. Counsel contracted with Municipal Resources, Inc. (MRI) for professional consulting services in the matter. There was no direct contract between the Town and MRI. The plaintiffs claimed that MRI’s presence at meetings between the board and counsel meant that those meetings did not qualify as consultation with legal counsel, exempt from the definition of "meeting" under RSA 91-A:2, I (b). The court disagreed with this claim of the plaintiffs. Citing New Hampshire Evidence Rule 502 (b), the court ruled that the presence of MRI as the attorney’s agent at meetings with the selectmen did not defeat the attorney-client privilege.

The selectmen released a final report from MRI on the police chief, but declined to release any other document concerning its relationship with MRI and communications with MRI on the grounds of attorney-client privilege. The plaintiffs demanded documents in the hands of counsel as well as those in the possession of the selectmen. The court found that MRI documents would be exempt from disclosure if they satisfy the test for the confidentiality of attorney "work product." This doctrine shelters from disclosure documents that reveal the attorney’s mental processes, "providing a privileged area within which he can analyze and prepare his client’s case." Attorney work product can include the contents of reports by the attorney’s consultant employed to assist the attorney in providing legal advice. The court did not make a final order on this issue, but gave the parties additional time to submit arguments as to whether or not the confidentiality exemption applies to the records in the possession of counsel that concern MRI’s inquiry into the police chief’s dismissal.

The court issued an injunction against the selectmen to refrain from further violations of the Right to Know Law, but did not award attorney’s fees, since the plaintiffs had proceeded without an attorney.

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