There is no blanket exemption contained within the Right-to-Know Law for records that may or may not be subject to a discovery motion in pending litigation. Instead, the Town should have gathered records and analyzed them for any possible exemptions/disclosures pursuant to a Right-to-Know request regardless of whether or not the requestor’s motive was to circumvent the discovery process.
Plaintiff Kenneth Michaud submitted a RTK request to the town of Campton Police Department seeking certain records pertaining to himself, his address, or any member of his household. The town denied the request, asserting that, based on similarities between the request and a motion for discovery filed by the plaintiff in a separate litigation between the parties, the request constituted “a veiled effort to circumvent the discovery process” in that pending litigation and was therefore an impermissible use of the RTK Law. It was established that the Town of Campton neither collected the relevant documents pursuant to the RTK request, nor evaluated any documents for potential disclosure under a 91-A analysis, but rather sought to use a blanked exemption given the fact that there was pending litigation.
The court looked at the fact that the Town initially denied the request without first reviewing the records responsive to that request. The Town cited the New Hampshire Right to Life case and argued that this case establishes a categorical exemption to the RTK Law that applies when the requester’s motive in seeking governmental records is to circumvent or supplement the discovery process in another pending litigation. The court reiterated its previous assertion that the requester’s motive in seeking disclosure is irrelevant to the question of access, and as a general rule, if the information is subject to disclosure, it belongs to all, regardless of motive. Instead of focusing on the requester’s motive, the test established in the Right to Life case assesses whether the disclosure of the requested records would in effect circumvent discovery limitations by releasing documents that would not be subject to routine disclosure upon a showing of relevance in other litigation. This is not a blanket exemption. Notably, in New Hampshire Right to Life, the State did not assert a blanket denial of the plaintiffs’ request. Instead, the State produced some responsive documents and withheld or redacted others pursuant to a specific statutory exemption — indicating that it had compiled and reviewed records responsive to the plaintiffs’ request before replying to that request.
Consequently, the Town violated the RTK Law by relying on a blanket exemption that does not exist. The court found that the denial of the plaintiff’s request was based on motive and without first reviewing the records responsive to the request and determining which records, if any, should have been withheld or redacted because their disclosure was otherwise prohibited by statute or RSA 91-A:5.