2006-020, ATV WATCH v. NH DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT

remand. In addition, we deny ATV’s request for attorney’s fees.

of attorney’s fees incurred on appeal. We affirm in part, vacate in part and of Resources and Economic Development (DRED). ATV also requests an award (2000 & Supp. 2006) against the respondent, the New Hampshire Department

to-Know Law, RSA chapter 91-A (2001 & Supp. 2006), and RSA chapter 215-A the Superior Court (McGuire, J.) dismissing its petition filed under the Right- BRODERICK, C.J. The petitioner, ATV Watch (ATV), appeals an order of

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Anne M. Edwards, associate attorney

brief and orally), for the petitioner. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes No. 2006-020 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as authorized under

p. 2 documents that were subject to disclosure. Further, it argued that it was

excusable and that it otherwise provided, within a reasonable time, all 2 of its responses were “technically” untimely but averred that some delays were costs, ATV also requested injunctive relief. The State acknowledged that some

public documents. In addition to seeking an award of attorney’s fees and

followed. fees and costs. ATV’s motion for reconsideration was denied, and this appeal moot, the remainder of ATV’s petition and again declined to award attorney’s documents. After conducting another hearing, the trial court dismissed, as to-Know Law. The parties did so, and DRED ultimately disclosed the withheld concerning the application of Perras and statutory exemptions under the Rightdocuments, the trial court ordered the parties to submit further briefing for injunctions, attorney’s fees and costs. With respect to the withheld dismissing or denying several of ATV’s prayers for relief, including its requests Right-to-Know Law, including delayed disclosure and unlawful retention of After conducting a hearing in March 2005, the trial court issued an order Ultimately, ATV filed a petition in superior court alleging violations of the such time as the purchase was either consummated or terminated. released further information, it continued to withhold multiple documents. then-pending purchase of the Berlin land, such as the property appraisal, until exemptions under RSA 91-A:5, to withhold certain documents relating to its

Perras v. Clements, 127 N.H. 603 (1986), and statutory described.

indicated its intent to withhold some documents whose content it generally DRED provided ATV with certain information “approved for public release” and

information and made several more Right-to-Know requests. While DRED In the months that followed, ATV repeatedly inquired about the withheld

with the Attorney General on matters of confidentiality. In January 2005, indicated its intent to comply with ATV’s request but noted its need to consult once the land was purchased. By letter dated December 1, 2004, DRED Berlin area, as well as its plan to develop all terrain vehicle and other trails information relating to DRED’s intended purchase of a large tract of land in the trails in New Hampshire, see RSA 215-A:2, :3. ATV primarily sought statute with developing, managing and creating multipurpose recreational 2004, it filed a Right-to-Know request with DRED, the agency charged by use and development of all terrain vehicle trails in New Hampshire. In late in the record. ATV is a non-profit New Hampshire entity, which monitors the The facts are drawn from the trial court’s order or are otherwise evident

demonstrates that DRED did not create or retain adequate documentation. purchase and funding and the intended location of all terrain vehicle trails that the paucity of documentation available concerning the Berlin property, its better documentation of pending land transactions in the future. It contends that the trial court erred in denying its request to compel DRED to maintain objective of facilitating access to all public documents.” We first turn to the trial court’s denial of injunctive relief. ATV argues information in order to best effectuate the statutory and constitutional

our review to those requests. award of attorney’s fees and costs, as well as injunctive relief. Thus, we restrict injunction, RSA 91-A:8, III. In its Right-to-Know petition, ATV sought an A, a question of law which we examine voiding action taken by a public body or agency; RSA 91-A:8, II; and ( p. 3 3) an requires us to interpret provisions of the Right-to-Know (1) an award of reasonable costs and attorney’s fees, RSA 91-A:8, I; (2) an order Law, RSA chapter 91remedies it sought in its Right-to-Know petition. Resolution of this case The Right-to-Know Law, if violated, provides for three possible remedies:

regarding the Right-to-Know law with a view to providing the utmost N.H. Dep’t of Fish & Game, 154 N.H. 46, 48 (2006). “We resolve questions history only if the statutory language is ambiguous.” WMUR Channel Nine v. look to the plain meaning of the words used . . . and will consider legislative Water Precinct, 154 N.H. 1, p. 3 3 (2006). When interpreting a statute, “[w]e first exemptions, RSA 91-A:5, IV, VIII, IX, and our holding in de novo. See Hounsell v. N. Conway that DRED refused to disclose, relying upon various Right-to-Know Law petition, but at least one was not. Category two incorporates the documents available to ATV. Therefore, we first review ATV’s arguments pertaining to the This case remains justiciable only to the extent remedies remain

that matter is moot when it no longer presents justiciable controversy). Juvenile 2005-212, 154 N.H. ___, ___ (decided January 26, 2007) (explaining to-Know Law, ATV may be entitled to a remedy under RSA 91-A:8. See In re released. This case is not moot, however, because if DRED violated the Rightagree that all of the documents ATV identified in its petition now have been

Some of the category-one documents were disclosed before ATV filed its considered public, yet disclosed in a delayed manner. See RSA 91-A:4, IV. into two categories. Category one encompasses the documents DRED The documents requested in ATV’s Right-to-Know petition can be placed

land. at the time of ATV’s Right-to-Know petition, the State did not own the Berlin We conclude that the trial court did not err by denying injunctive relief because public if and when it seeks to construct ATV trails in the proposed ATV park.” concluded that the State “will undoubtedly have information to provide the and not engage in future Right-to-Know Law violations. targeted land prior to establishing trails, see RSA 215-A: p. 4 42; :43, the trial court clear. Furthermore, while the State must engage in testing and evaluation of and, thus, the provision did not apply. We agree; the statutory language is proceedings, the trial court concluded that the property was not “state land” DRED had not yet purchased the Berlin tract at the time of the trial court significantly revised trail systems on state lands.” (Emphasis added.) Because opportunities for public input in all decisions regarding development of new or trails for all terrain vehicles and other recreational vehicles to “provide[ ] statute requires all State agencies involved in the development of a system of With respect to ATV’s injunction requests under RSA 215-A:41, II(f), that

release information, comply with the Right-to-Know Law and RSA 215-A: p. 4 41, sought an order compelling DRED to maintain adequate documentation, provides that “the court demonstrated a pattern of noncompliance with the Right-to-Know Law. It rights, which entitled it to injunctive relief under the statute. The statute release of information on development of ATV trails”; and that DRED had DRED violated the Right-to-Know Law and that such violation prejudiced its that under the same statute, “special circumstances exist concerning the DRED maintained insufficient documentation to satisfy RSA 215-A:41, II(f); In its Right-to-Know petition, ATV requested that the trial court find that

determine whether such relief should be ordered in a particular case. granting an injunction are not required, the trial court retains the discretion to thus, even assuming, without deciding, that the traditional elements for chapter.” RSA 91-A:8, III (emphasis added). This language is permissive and

the traditional elements of an injunction. According to ATV, it proved that ATV contends that the Right-to-Know Law does not require application of

after consideration of the facts and established principles of equity.” Id. at ___. The trial court retains the discretion to decide whether “to grant an injunction party seeking an injunction [is] likely [to] succeed on the merits.” Id. at ___. seeking injunctive relief, . . . there is no adequate remedy at law . . . [and the] issue unless there is an immediate danger of irreparable harm to the party Mottolo, 15 p. 4 4 N.H. ___, ___ (decided March 6, 2007). “An injunction should not been considered an extraordinary remedy.” N.H. Dep’t of Envtl. Servs. v. “The issuance of injunctions, either temporary or permanent, has long was “reasonable” or whether it committed a “knowing” violation when rejecting

p. 5 exercised its discretion by dismissing ATV’s request for injunctive relief. conclude that ATV has failed to demonstrate that the trial court unsustainably

costs. The trial court, therefore, erred in considering whether DRED’s conduct

The creation of such a standard is best left to the legislature. We therefore identified by ATV, ATV’s request would require the courts to construct one. court could measure the adequacy of DRED’s record keeping, a standard not Right-to-Know Law violation is required for an award of legal fees, but not for that the agency “knew or should have known” that its refusal constituted a lawsuit was necessary in order to make the information available. Establishing

provide that no such fees shall be paid. was a violation of this chapter or where the parties, by agreement, or person knew or should have known that the conduct engaged in

necessary in order to make the information available . . . . records of the pending transaction. Without some standard by which the trial

Law, ATV is entitled to costs if DRED refused to provide a public record and a RSA 91-A:8, I (emphasis added). Thus, if DRED violated the Right-to-Know

shall not be awarded unless the court finds that the body, agency

this chapter provided that the court finds that such lawsuit was relating to the then-pending purchase of the Berlin tract, and thus kept reasonable attorney’s fees and costs incurred in a lawsuit under disclosed, albeit later than it should have in some instances, many documents public record . . . such body, agency, or person shall be liable for by DRED or what those documents might be. It is not disputed that DRED violation of the provisions of this chapter, refuses to provide a If any body or agency or employee or member thereof, in

The Right-to-Know Law remedy provision provides in pertinent part:

standard for assessing costs. “reasonable.” We conclude that the trial court applied an erroneous legal that DRED’s reliance upon Perras for withholding certain documents was It found that DRED responded to ATV’s requests “in a reasonable manner” and such an award because it concluded that “there was not a knowing violation.” Next, we turn to the question of costs. The trial court refused to order

requirement mandating that specific documents be created for record keeping IV

whether to purchase the Berlin land, ATV fails to identify any particular legal have kept or prepared more records than it did when it was considering sufficient documentation of its activities. While asserting that DRED should Law, ATV argues that the trial court erred in failing to require DRED to keep Regarding ATV’s request for injunctive relief under the Right-to-Know p. 6 6

to-Know Law by its delayed disclosure, we vacate the trial court’s ruling and “fault,” “harm,” or “prejudice.” Accordingly, because DRED violated the Right-

portions of ATV’s Right-to-Know petition related to these documents.

it must records available when they are immediately available for release, or otherwise,

the factors applied by the trial court, such as “reasonable speed,” “oversight,” denied. The plain language of the provision does not allow for consideration of violation [did] not prejudice[ ] the petitioner.” The trial court dismissed the reasonably necessary to determine whether the request will be granted or and thus, “[a]lthough DRED may have technically violated the statute, [the] acknowledge receipt of the request in writing with a statement of the time records available; (2) deny the request in writing with reasons; or (3) within five business days of the Right-to-Know request: (1) make the

Know request is absolute. The statute mandates that an agency make public RSA 91-A:4, IV (emphasis added). The time period for responding to a Right-to-

determine whether the request shall be granted or denied. the request and a statement of the time reasonably necessary to with reasons, or furnish written acknowledgment of the receipt of of request, make such record available, deny the request in writing immediate inspection and copying, it shall, within 5 business days documents, the trial court found that DRED’s delay was due to “an oversight,” or agency is unable to make a public record available for violations were not its fault and others were harmless.” Regarding other records are immediately available for such release. If a public body reasonable speed,” and thus, while “in technical violation of the statute, some and copying any such public record within its files when such did not respond within the statutory time period, it did respond with public record reasonably described, make available for inspection respect to some of these documents, the trial court found that “although DRED Each public body or agency shall, upon request for any

The Right-to-Know Law provides that:

documents and retention of category-two documents. parties’ arguments concerning DRED’s delayed disclosure of category-one DRED violated the Right-to-Know Law, we must review the merits of the

with the Right-to-Know Law when disclosing certain public documents. With DRED acknowledged before the trial court that it had failed to comply

in disclosure did not violate the Right-to-Know Law. We agree. applied an incorrect legal standard and thus erred in ruling that DRED’s delay Regarding category-one documents, ATV argues that the trial court

in this matter. However, because ATV’s request for costs remains viable only if ATV’s request for costs. Accordingly, we vacate the trial court’s denial of costs p. 7 7

because ATV had represented itself

so. an award to cover the attorney’s fees it incurred on appeal. We decline to do ATV does not challenge this ruling. Instead, ATV argues that we should make

court found that an award of attorney’s fees was “not appropriate,” presumably We conclude by considering ATV’s request for attorney’s fees. The trial lawfulness of DRED’s conduct.

‘confidential, commercial, or financial information’ appli[ed],” that it could not award of costs. transaction . . . to know whether the RSA 91-A:5, IV exemption for lawsuit was necessary to secure their disclosure, which would entitle ATV to an by its nondisclosure of the category-two documents and, if so, whether the the trial court should determine whether DRED violated the Right-to-Know Law exemption or the application of the statutory exemptions and Perras. Therefore, on remand, in the petition as moot and did not render a decision on the merits concerning released the documents. The trial court then dismissed the remaining requests ordered further briefing. While the parties submitted briefs, DRED ultimately protected by the exemptions in RSA 91-A:5, VIII and IX.” The trial court then the record before us, however, we decline to rule as a matter of law upon the Perras,” and that it was “not clear that [other withheld documents were] be entitled to a remedy despite DRED’s ultimate release of the documents. On intentionally withheld documents. If DRED’s conduct was unlawful, ATV may remaining portions of ATV’s Right-to-Know petition pertaining to the It explained, however, that it “lack[ed] sufficient information about the that “the Court does not find that the facts of this case fit the Perras analysis.”

Perras. In its April 2005 order, the trial court stated at one point

lawfulness of DRED’s retention of documents pursuant to a statutory The trial court never issued a decision upon the merits concerning the DRED erroneously relied upon certain Right-to-Know Law exemptions and

As an initial matter, it was error for the trial court to dismiss as moot the

while a land purchase is pending. We decline to provide such guidance. it may rely upon Perras to withhold documents, such as a property appraisal, Perras to retain the documents. DRED, as well, seeks guidance as to whether

With respect to the category-two documents, ATV seeks a ruling that

make the category-one documents available. remand for the trial court to determine whether ATV’s lawsuit was necessary to them. p. 8 appellate counsel fees is warranted under RSA 91-A:8, I, this is not one of

public documents available. While there may be cases in which an award of

this lawsuit conducted after ATV retained counsel was necessary to make which it was entitled before ATV retained counsel. In other words, no part of documents in this case because ATV had been given all the documents to of law, legal counsel could not have been necessary to secure access to public legal counsel is necessary to secure access to public documents. As a matter intended for a petitioning party to recover attorney’s fees when retention of document. The plain language of the statute indicates that the legislature generated by ATV’s appeal have not resulted in the disclosure of a single

conduct in its delayed disclosure and retention of documents. court to consider costs and, to the extent necessary, the lawfulness of DRED’s its delayed disclosure of category-one documents. We remand for the trial costs, as well as its ruling that DRED did not violate the Right-to-Know Law in

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

trial court’s denial of injunctive relief. We vacate the trial court’s denial of In sum, we deny ATV’s request for appellate counsel fees and affirm the

undisputed that ATV was not represented by counsel until after DRED appeal here, was, in its initial stage, the catalyst for disclosure. However, it is described as consisting of both the petition in the superior court plus the petition. Thus, it is arguable that the lawsuit, which could reasonably be

sought in this case were released by DRED after ATV filed its Right-to-Know [requested] information available.” RSA 91-A:8, I. Some of the documents “incurred in a lawsuit . . . that . . . was necessary in order to make the that ATV’s attorney’s fees, while related only to the appeal, were nevertheless at 50. A technical reading of the remedy provision could lead to the conclusion the conduct engaged in was a violation of RSA chapter 91-A. WMUR, 154 N.H. available; and (2) the body, agency, or person knew or should have known that Law is violated and: (1) the lawsuit was necessary to make public information RSA 91-A:8, I, requires an award of attorney’s fees if the Right-to-Know