The following summary is based on a decision of the 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.
This order is the latest in a series of orders regarding requests by the plaintiffs for documents under RSA Chapter 91-A, the Right to Know Law. The Court previously ruled (in a decision summarized in the April 2012 issue of New Hampshire Town and City) that the Town had violated the law in a number of instances. Importantly, it also noted that reports created by the Town’s attorney’s consultant, employed to assist the attorney in providing legal advice regarding the dismissal of the police chief, might be protected from disclosure by the attorney-client privilege.
The current order was issued after the parties were given additional time to submit arguments regarding application of the attorney-client privilege to these reports, which were in the possession of the attorney and had never been delivered to the Town. Looking to the recent N.H. Supreme Court opinions in Hampton Police Ass’n v. Hampton, 162 N.H. 7 (2011), and Ettinger v. Madison Planning Board, No. 2010-688, Dec. 8, 2011, the Court explained that records in the possession of the attorney may be confidential, but that “the divergent public policy interests underpinning the Right to Know Law” and the attorney-client privilege must be balanced.
Interestingly, the Court declined to decide whether it was necessary to weight the benefits of disclosure to the public against the benefits of non-disclosure to the government, as the Hampton case indicated. When it has been applied, New Hampshire courts have “found instructive” but not exclusively adopted a test used by federal courts: “To show that information is sufficiently confidential to justify nondisclosure, the party resisting disclosure must prove that disclosure is likely (1) to impair the State’s ability to obtain necessary information in the future, or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.”
In this case, however, the Court decided that it did not have to rule on whether the test was necessary because even if it were applied, the Town had passed it. The disclosure of the reports obtained by counsel would impair the attorney’s ability to obtain necessary information and seek outside expertise in the future, as well as chill the municipality’s ability and willingness to engage in legal consultation. This trial court opinion is not binding on other courts, of course, but it may provide some guidance to municipalities and their attorneys regarding information obtained by the attorney’s agent to assist with the provision of legal advice. In particular, it may be helpful to specify the agent’s role and what information is intended to be covered by the attorney-client privilege, so the attorney may proceed accordingly.