School Administrative Unit 16 (“the SAU”) received a Right-to-Know request from Albert Brandano on July 4, 2021. The request sought documents relating to “Diversity, Equity, Inclusion and Justice” (DEIJ) committees from July 2019 through June 2021. In the request, Brandano identified documents related to that topic “in SAU16 or any School District in SAU16.” There were eight request in total: (1) charters, member lists, and similar founding documents for DEIJ committees; (2) agendas, work product, and minutes from DEIJ committee meetings; (3) “All emails or other written communication” between DEIJ committee leaders and other SAU officials regarding “DEIJ activity”; (4) “All records of any DEIJ Activity” of any school board or subcommittee; (5) “All records of any DEIJ Activity of any SAU16 officer”; (6) contracts or applications related to DEIJ activities; (7) other records of expenses incurred supporting DEIJ activities; and (8) “All records of any DEIJ-Activity-related curriculum materials, for example books, that were distributed, assigned, recommended, or suggested to any SAU16 teachers or students.” The superintendent confirmed receipt of the request by email on July 7.
In his email response to Brandano, Superintendent David Ryan explained that most of the requested material was publicly available via the SAU’s website. He said that he needed five days to respond to requests (6) and (7) and 45 days to respond to request (3), as they would require time and labor to compile. On July 16, he sent material in response to requests (6) and (7) and said he would provide documents responsive to request (3) within “the 45 days previously indicated.”
After those 45 days had passed, the plaintiff twice contacted the SAU to say that the SAU had not provided the missing information within the time as promised. On September 28, Brandano filed a complaint asking the Superior Court to order production of the information he requested and award attorney’s fees and costs. On October 14th the SAU provided invoices from three schools in response to request (7) and filed a motion to dismiss, and thereafter a hearing was held on October 20. Despite the SAU still having not answered request (3), the court granted preliminary dismissal of the complaint on the condition the SAU adequately responded to request (3) within 45 days of the decision. Superintendent Ryan sent a PDF containing emails with some identifying information redacted in response to request (3) a week later, and in January he emailed Brandano saying all responsive documents had been sent. The plaintiff then filed a motion to compel, which was denied, and he appealed the order granting the motion to dismiss and denial of his request for attorney’s fees.
On the appeal of the granted motion to dismiss, the Court found that the order was appropriate. The SAU successfully argued that it was the wrong target of the request, as documents requested were held by individual schools, not the SAU itself, which the Court says are distinct agencies for the purpose of RSA 91-A. “By its plain language, the statute identifies a school district as a public agency separate from a school administrative unit. RSA 91-A:1-a, V.” It also agreed with the defendant that it need not produce every conceivable document to comply with a request, just to “[demonstrate], beyond material doubt, that, as of the date of the hearing, they conducted a search reasonably calculated to uncover all relevant documents.” Citing ATV Watch v. N.H. Dep’t of Transp., it said, “the issue is not whether relevant documents might exist, but whether the agency’s search was reasonably calculated to discover” them. 161 N.H. 746, 753 (2011). (While the SAU did not submit one in this case, the Court advised that an agency could demonstrate such a search by submitting a thorough and detailed affidavit.)
On Brandano’s motion to compel, which claimed over 300 pages of documents were missing, the Court again affirmed the trial court’s decision and found for the SAU. On Brandano’s claim that the PDF was over-redacted, the Court was convinced by the SAU’s statement that it redacted names of parties not subject to the order only, i.e. not officials or DEIJ committee leadership, such as parents and vendors. Regarding the missing-pages claim, the SAU said it was “junk mail” and messages unrelated to the Right-to-Know request. The Court reviewed the documents to parse these claims and found that the trial court did not err in denying the motion to compel, as the SAU had already provided everything it was required to. Everything not provided was either not responsive to the request or already available. In doing so, it quoted Triestman v. U.S. Dept. of Justice, Drug Enfor.: “[T]o require an agency to collect and produce information that has already been made public would not further the general purpose of FOIA, which is to satisfy the citizens’ right to know what their government is up to” and “FOIA does not obligate an agency to serve as a research service for persons seeking information that is readily available to the public.” 878 F. Supp. 667, 671 (S.D.N.Y. 1995).
Finally, on the issue of attorney’s fees, the Court had to evaluate whether the initial legal action was necessary to motivate the SAU to provide the documents under RSA 91-A. Because the SAU created a self-imposed deadline, and failed to meet that deadline, and still did not act on request (3) until after the trial court ruled on the motion to dismiss months later, the Court concluded that it “knew or should have known” it violated RSA 91-A. So, while Brandano is not entitled to attorney’s fees related to seven of the eight requests, he can collect attorney’s fees for costs incurred in getting the SAU to respond to request (3). The Court emphasized the “self-imposed deadline” in reaching this conclusion.
The Superior Court will consider the attorney’s fees award on remand.
*This decision is a final order of the court. Final orders are distinguished from court opinions in that they decide the merits of a case but do not create binding precedent. Final orders may be cited in briefs but only if identified as a non-precedential order. They can be helpful as guidance but are not law. See N.H. Sup. Ct. Rule 12-D(3).