2009-215, Professional Firefighters of New Hampshire v. Local Government Center, Inc. & a.

The respondents, Local Government Center, Inc.

Kevin E. Verge on the brief, and Mr. Carter orally), for the respondents. Hinckley, Allen & Snyder LLP, of Concord (Christopher H.M. Carter and

memorandum of law and orally), for the petitioner. Molan, Milner & Krupski, PLLC, of Concord (Glenn R. Milner on the to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. PROFESSIONAL FIREFIGHTERS OF NEW HAMPSHIRE

No. 2009-215 editorial errors in order that corrections may be made before the opinion goes Merrimack Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 or service provided to any municipalities or school districts.’”

p. 2 employee officials and a county public official. of directors comprised of municipal public officials, school public officials,

provide[] real estate ownership and management to LGC, with no direct benefit

LGC bylaws indicate that LGC manages its subsidiaries through a single board

contractual relationship with LGC Real Estate, which is said to ‘merely “[p]articipating municipalities in LGC have no direct membership or with NHMA. With respect to LGC Real Estate, the trial court noted that

Workers Compensation Trust, LLC, which merged into LGC Property-Liability.

Right-to-Know Law. LGC HealthTrust or LGC Property-Liability; and (4) contractual participation

Liability Trust, LLC (LGC Property-Liability); and Local Government Center Center Real Estate, Inc. (LGC Real Estate); Local Government Center Property- Government Center HealthTrust, LLC (LGC HealthTrust); Local Government

appealed. We held that LGC HealthTrust is a quasi-public entity subject to the municipality; (2) membership in LGC; (3) a contractual agreement with either Blue Shield. The trial court granted the request, and LGC HealthTrust subcommittees, as well as a contract between it and Anthem Blue Cross &

chapter 5-B. Participation in these programs requires: (1) status as a Property-Liability operate pooled risk management programs under RSA LGC HealthTrust, seeking meeting minutes of its board of trustees and Hampshire, the Legislature and other agencies.” LGC HealthTrust and LGC

Currently, LGC is a single organization that owns and manages the following cities, towns and villages.” The Association later was renamed the LGC. trial court to either conduct an in camera review or have LGC HealthTrust good municipal government and thereby promote the growth and prosperity of See id. at 504-05. We remanded the case, directing the

In 2003, Professional Firefighters filed a Right-to-Know petition against information, policy development and cooperation with the State of New

comprised of political subdivisions. Its self-defined purpose is “[t]o promote

strengthen the quality of municipal government through provision of “CERTIFICATE OF FORMATION” filed with the Secretary of State, is “[t]o and training services to municipalities. NHMA’s purpose, as stated on its The subsidiaries perform different functions. NHMA provides lobbying

provide legal, legislative advocacy, and other services to its members, which are

In 1941, the New Hampshire Municipal Association was formed to

summary judgment and the undisputed facts in the record before us. related to the present dispute, we rely upon the trial court’s order granting Firefighters of N.H. v. HealthTrust, 151 N.H. 501 (2004). In reciting the facts This is the second time these parties have been before us. See Prof’l

p. 3 pay attorney’s fees to Professional Firefighters for refusing to produce the disclose the specific salary information of its employees. It also ordered LGC to documents. constitutional objective of facilitating access to all public

Estate, are subject to the Right-to-Know Law, and that LGC is required to information in order to best effectuate the statutory and

granted, ruling that all LGC subsidiaries, including NHMA and LGC Real the Right-to-Know law with a view to providing the utmost statutory language is ambiguous. We resolve questions regarding the words used and will consider legislative history only if the

Id. (quotations, brackets, ellipsis, and citation omitted).

Firefighters filed a motion for summary judgment, which the trial court $6,120,946.68 to approximately 112 full-time employees. Professional disclosed that in a particular year it had made salary payments totaling When interpreting a statute, we first look to the plain meaning of

N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434, 437 (2007). RSA ch. 91-A, which is a question of law that we review de novo. ATV Watch v. Resolution of this case requires us to interpret the Right-to-Know Law, A:5, IV, and that no public interest would be served by disclosing them. records on the basis that they are internal personnel records under RSA 91- court’s application of law to fact de novo. Id. entitled to judgment as a matter of law, we will affirm. terms for other documents, but declined to provide the salary and benefit Id. We review the trial facts that would affect the outcome of the litigation, and if the moving party is (2009). If this review does not reveal any genuine issues of material fact, i.e., non-moving party. Smith v. HCA Health Servs. of N.H., 159 N.H. 158, 160 Professional Firefighters, which, without revealing individual salary figures, considering the affidavits and other evidence in the light most favorable to the On appeal, we review the trial court’s grant of summary judgment by

employees. LGC complied with certain requests, offered to negotiate disclosure

and costs related to the litigation. In response, LGC sent a letter to chapter 91-A, seeking the withheld documents and an award of attorney’s fees In March 2007, Professional Firefighters filed a petition under RSA

LGC and its subsidiaries, including salary and benefit information for LGC Subsequently, Professional Firefighters requested other documents from

contract should be exempt from disclosure. See id. at 507. provide a Vaughn index to determine what information in the minutes and the construction of new streets). p. 4 negotiations, discussing extension of city water and sewer lines and possibly sell, arranging sale transactions and participating in land sale

business is essential to a democratic society.” reviewing land purchases the city had made, identifying city-owned property to

within the scope of the Right-to-Know Law.

as the statute’s preamble recognizes, “[o]penness in the conduct of public frequency of its meetings (once per month), and its functions (which included

mayor of Rochester.

are subject to the Right-to-Know Law on at least three occasions. In

committee’s involvement in governmental programs and decisions brought it contends, is required under our holding in See id. Ultimately, we concluded that the

the actions, discussions and records of all public bodies.” RSA 91-A:1. Indeed, Law, which was enacted “to ensure . . . the greatest possible public access to (which included “newspapermen and members of the city council”), the unreasonably restricted.” This right is embodied within the Right-to-Know Bradbury, 116 N.H. at 389. We examined its composition we considered the status of an industrial advisory committee formed by the

We have reviewed whether entities that work for or with the government

Firefighters of N.H., 151 N.H. at 504. subsidiaries do not perform essential governmental functions as, LGC Bradbury, 116 N.H. at 389-90; Union Leader Corp., 142 N.H. at 547; Prof’l subject to the Right-to-Know Law. It particularly emphasizes that the the Right-to-Know Law depending upon its structure and function. See, e.g., entities and do not perform an essential governmental function, they are not and that functions independently from the State may nevertheless be subject to However, an entity that has a distinct legal existence separate from the State subject to the right-to-know law,” Bradbury v. Shaw, 116 N.H. 388, 389 (1976). (1997), and “[n]ot all organizations that work for or with the government are public’s right of access to governmental proceedings and records shall not be public,” Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 547 Some entities are “not easily characterized as solely private or entirely

I. possession, custody, or control of [all] public bodies or agencies.” RSA 91-A:4, “[e]very citizen . . . has the right to inspect all governmental records in the

staffed by public employees, do not manage money collected by governmental

Part I, Article 8 of the New Hampshire Constitution provides that “the

an entity to be subject to the Right-to-Know Law.

Know Law. LGC argues that because NHMA and LGC Real Estate are not two of its subsidiaries, NHMA and LGC Real Estate, are subject to the Right-to- We first address LGC’s argument that the trial court erred in ruling that

p. 5 that each new arrangement must be examined anew and in its own

status of public entities.

getting the business of government done. The unavoidable fact is

Know Law. Indeed, we have emphasized that: not the exclusive method for determining whether it is subject to the Right-tomoney collected from governmental entities while enjoying the tax exempt constituent governmental entities and for public employees, and (5) managed essential governmental function, (4) operated for the sole benefit of its documents and governmental proceedings, statutory and constitutional objectives of increasing public access to all public

confronted with one of the myriad organizational arrangements for Any general definition can be of only limited utility to a court

omitted). Whether an entity performs an essential governmental function is N.H. Legislative Budget Assistant, 148 N.H. 551, 555 (2002) (quotation utmost information to the public about what its government is up to,” Goode v. management program, an activity that the legislature recognized as an see id. at 504, and to “provide the

federal agencies. Our ultimate goal in construing the Right-to-Know Law is to further the

chapter 5-B. programs to political subdivisions.” Id. at 504-05. governmental function of providing insurance and pooled risk management was subject to the Right-to-Know Law because it “performs the essential a pooled risk management program. entities to provide general health insurance benefits for public employees under Id. In the end, we concluded that LGC HealthTrust

provided health insurance benefits for public employees through a pooled risk to-Know Law, (2) was governed entirely by public officials and employees, (3) comprised exclusively of political subdivisions, which are subject to the Right- functions of the State, and (4) was empowered to work with other state and public instrumentality, (3) performed public and essential governmental Id. at 504. In particular, we noted that LGC HealthTrust (1) was investment of private capital . . . through the use of public financing,” (2) was a 502. We examined the entity’s structure and function as delineated by RSA

HealthTrust, a nonprofit corporation formed by an association of governmental In Prof’l Firefighters of N.H., we considered the status of LGC

to-Know Law. Id. legal existence separate from the State, the Authority was subject to the Right-

See id. Accordingly, we concluded that despite its distinct

originated, RSA chapter 204-C, and determined that it (1) encouraged “the its structure and function as outlined in the statutory scheme under which it Hampshire. Union Leader Corp., 142 N.H. at 547. In so doing, we examined safe and affordable housing to the elderly and low income residents of New Housing Finance Authority, a statutorily created entity charged with providing In Union Leader, we considered the status of the New Hampshire p. 6 Know Law. to accomplish certain tasks.

court’s decision that NHMA and LGC Real Estate are subject to the Right-towith a separate legal existence from that public body or public agency in order

they are conducting the public’s business. Accordingly, we affirm the trial as a governmental entity subject to the Right-to-Know Law, demonstrate that public body or public agency is contracting with an otherwise private entity LGC Real Estate in their relationship with LGC, which has a conceded status

school, employee and county officials. This is not a circumstance in which a § 115. Therefore, we conclude that the structure and function of NHMA and solely of political subdivisions and which is managed solely by municipal, which has a conceded status as a governmental entity whose members consist

governmental entities under the federal Internal Revenue Code, 26 U.S.C. is subject to the Right-to- p. 6 Know Law. that both NHMA and LGC Real Estate enjoy the tax exempt status of public or are directly managed by, owned by and operate for the sole benefit of LGC, of its subsidiar[ies].” LGC concedes that it, itself, is a governmental entity that behalf of a public agency). Finally, their answers to interrogatories indicate single executive director is in charge of “the daily activities of LGC, including all

NHMA and LGC Real Estate, in the performance of their respective functions, 6 not subject to state public records act because it was not an entity acting on members in performing essential governmental functions.” Furthermore, including “NHMA . . . and LGC Real Estate.” Further, the bylaws provide that a However, LGC admitted in its pleadings in the superior court that it “assists

county to provide professional services for construction of public school was directors shall “set policy, oversee and administer LGC” and its subsidiaries, LGC, and such functions arguably could be performed by a private entity. officials, and a county public official. The LGC bylaws state that the board of consisting of municipal public officials, school public officials, employee

So. 2d 1029, 1031-32 (Fla. 1992) (private architectural corporation retained by acknowledge that NHMA and LGC Real Estate perform different functions for Cf. News and Sun-Sentinel v. Schwab, et al., 596 would otherwise have to be performed by a governmental entity. We organization solely owned by LGC and managed by a single board of directors, of public government members and other entities that perform functions that

of LGC’s affiliated entities, including NHMA and LGC Real Estate, are part of an In response to interrogatories, LGC admitted that its participants consist and function of NHMA and LGC Real Estate. According to the LGC bylaws, all

We examine the summary judgment record to determine the structure

facilitate openness in the conduct of public business). the public’s business. See RSA 91-A:1 (purpose of Right-to-Know Law is to relationship with government, and determine whether that entity is conducting end, we examine the structure and function of an entity to assess the entity’s Bradbury, 116 N.H. at 390 (quotation, brackets and ellipsis omitted). In the in the production of this information.

p. 7 an invasion of privacy.”

is subject to the Right-to-Know Law.

privacy [regarding their salary information] than those who choose to work in privacy.” According to LGC, its “private employees have a higher expectation of nondisclosure.” commercial, or financial information, and whether disclosure would constitute

records are subject to public disclosure depends upon whether the entity itself

providing the utmost information in order to best effectuate the statutory and that is subject to the Right-to-Know Law. Further, it does not argue that the Union Leader Corp., 142 N.H. at 552 (quotation and

financial information” whose disclosure would “constitute an invasion of Law, that entity bears a heavy burden to shift the balance toward must analyze “both whether the information sought is confidential, “confidential, commercial, or financial information.” Under this statute, we employees are exempt under RSA 91-A:5, IV, as records pertaining to under the Right-to-Know Law than are public employees’ records. Whether LGC contends that the specific names and salary information of its

disclosure broadly, while construing exemptions narrowly.” Id. exemption applies. 148 N.H. at 554 (quotation omitted). “Thus, we construe provisions favoring

(2008). “We resolve questions regarding the [Right-to-Know Law] with a view to [all] public bodies or agencies”). LGC admits that it is a governmental entity Lambert v. Belknap County Convention, 157 N.H. 375, 379

public disclosure under RSA 91-A:5, IV as “confidential, commercial, or public entity seeks to avoid disclosure of material under the Right-to-Know employees by name. LGC contends that these specific records are exempt from exceptions and exemptions. See Goode, 148 N.H. at 553. However, “[w]hen a paid to them. However, it refused to disclose the individual salaries of its of access to all governmental workings, as evidenced by the statutory nature, their salary records are entitled to a greater degree of privacy protection The Right-to-Know Law does not guarantee the public an unfettered right

employee salary records are subject to public disclosure unless an exception or

to inspect all governmental records in the possession, custody, or control of

providing its total number of full-time employees, as well as the total salary We reject LGC’s argument that because its employees are “private” by

LGC disclosed general salary information to Professional Firefighters by records that identify the names and individual salaries of its private employees. Next, LGC argues that the trial court erred in ordering it to disclose

p. 8 different venues “without significant damage to individual dignity or the 8

disclosure would not constitute an invasion of privacy barring public disclosure

exercise their final appropriating authority. Law favored public scrutiny in order to enable resident voters to properly

employees, both state and municipal, had been commonly published in

disclosure of which might harm the individual,” and, thus, concluded that incur in the event of public disclosure, salaries of public employees and schoolteachers are not intimate details the commercial, or financial information,” because we follow need not specifically address whether the records are “confidential, See id. at 164. We held that “[t]he under RSA 91-A:5. expenditures for school purposes and, thus, concluded that the Right-to-Know we noted that the records were pertinent to the mode and manner of public sought disclosure of individual salaries by name.

With respect to harm, we noted that salaries of public officials and

access, id. at 164.

harm that the school system claimed that the individual employees would privacy interest in their salaries than are public employees.” We agree. We Id. at 162-64. In so doing, we particularly examined the specific salary information was private in nature and exempt from disclosure the trial court followed our decision in Id. We reviewed whether the name of each teacher and a general salary schedule, a resident taxpayer at issue here. Id. at 161. While the school district was willing to publish the public school teachers was shielded from disclosure pursuant to the exemption and not a party’s subjective expectations.” In Mans, we considered whether the individual salary information for

that disclosure of the records would not constitute an invasion of privacy.

in disclosure”). Second, we assess the public’s interest in disclosure. sufficiently private [such] that it must be balanced against the public’s interest N.H. 160 (1972), and ruled that LGC employees “are entitled to no greater

In ruling that LGC must disclose the specific salary information sought,

step analysis. Id. at 382-83. exempt from disclosure because it is private is judged by an objective standard to-Know Law mandates disclosure. Id. Further, “[w]hether information is interest in nondisclosure. Id. If no privacy interest is at stake, then the Rightagainst the government’s interest in nondisclosure and the individual’s privacy Lambert, 157 N.H. at 383. Third, we balance the public interest in disclosure

the asserted private confidential, commercial, or financial interest “is at 382; see also Union Leader Corp., 142 N.H. at 553 (court examines whether there is a privacy interest at stake that would be invaded by the disclosure. Id.

See Lambert, 157 N.H. at 382-83. First, we evaluate whether

constitutes an invasion of privacy under RSA 91-A:5, IV, we engage in a threeemphasis omitted). When considering whether disclosure of public records as Directors.” p. 9 for reasonable expenses properly and actually incurred in the course of acting “reasonable compensation for services as Directors and reimburse themselves

members. Moreover, the LGC board of directors are entitled to pay themselves

remaining assets will be liquidated and the proceeds distributed to LGC participate in the return of net income, and in the event LGC dissolves, any indicate that LGC members, which are mostly municipalities, are entitled to

including paying the salaries of LGC employees. Additionally, the LGC bylaws

municipalities with taxpayer money. This income is used to operate LGC,

bulk of LGC’s income comes from member dues paid by participating incidental services, such as the sale of LGC handbooks and directories, the collection. It is not disputed that other than revenues generated from

inefficiency, prejudice and favoritism.

the Right-to-Know Law and is subsidized by money generated through tax

Court was not dispositive)., 165 P.3d 488, 495 (Cal. 2007). Such scrutiny is necessary for the

particular job titles. Public scrutiny can expose corruption, incompetence, operations of the public body by enabling scrutiny of the wages paid for Public access to specific salary information gives direct insight into the

LGC operates. LGC has a conceded status as a governmental entity subject to

teachers in been historically disclosed to the public as were those of certain public school them and not in the best interest of the efficient management of school affairs

party’s subjective expectations);

subjective expectations are not dispositive.

Further, the nature of the records is pertinent to the manner in which

traditional public employees. While such records apparently may not have teachers that public access to individual salaries would be embarrassing to

(whether information is private is judged by an objective standard and not a

employees may not have expected their salary information to be disclosed, their choose to work in the public sector” is not persuasive. Although LGC “LGC’s private employees have a higher expectation of privacy than those who efficient management of its operation. See id. at 163. Its bald assertion that salary records would cause any significant damage to individual dignity or the

Mans, LGC offers no reason why public disclosure of its employees’

no greater privacy interest regarding their individual salary information than Following Mans, we agree with the trial court that LGC employees have

contravened the purposes and objectives of the Right-to-Know Law. See id. would have allowed the exemption to swallow the rule and would have broadly. Id. at 162. Ultimately, however, we rejected a broad construction that subject to the exemption at issue if we were to construe that exemption that salary information generally constitutes private information and would be under RSA p. 10 91-A:5, IV. Id. (quotation and ellipsis omitted). We acknowledged unsupported by the evidence or erroneous as a matter of law.

p. 10 91-A:5, IV.

A].” We will defer to the trial court’s findings of fact unless they are have known that the conduct engaged in was a violation of [RSA chapter 91available”; and (2) “the public body, public agency, or person knew or should

that: (1) “such lawsuit was necessary in order to make the information

privacy of their homes. salary information of its employees because the trial court failed to consider the that LGC knew or should have known that it was required to produce the Firefighters of N.H., 151 N.H. at 507. Professional Firefighters. According to LGC, the trial court erred in concluding Prof’l

purpose underlying the Right-to-Know Law. employee names and individual salary information. Under RSA 91-A:8, attorney’s fees shall be awarded if the trial court finds

publicly disclosed, would expose the individual employees to intrusion into the records involving individual employee names and personal addresses, which if Freedom of Information Act, the cases largely turn on granting protection to Finally, LGC challenges the trial court’s award of attorney’s fees to is consistent with our own precedent,

public business is essential to the transparency of government, the very trial court’s grant of Professional Firefighters’ request for disclosure of LGC under RSA p. 10 91-A:5, IV. See Mans, 112 N.H. at 164. Accordingly, we affirm the individual employees comprise intimate details that are exempt from disclosure We conclude that LGC has failed to establish that the salaries of its

n.5. specific salary information of its employees. Decided under the federal that of other jurisdictions, see, e.g., International Federation, 165 P.3d at 495

constitutes an unwarranted invasion of personal privacy). Our decision today (disclosure of names and home addresses of governmental contract employees Metal Workers v. Dept. of Veterans Affairs, 135 F.3d 891, 904-05 (3d Cir. 1998) short, knowing how a public body is spending taxpayer money in conducting would constitute an unwarranted intrusion into privacy of the home); Sheet continued membership would be a wise expenditure of taxpayer money. In 487, 501-02 (1994) (disclosure of home addresses of federal agency employees managed and for educating the member municipalities regarding whether See, e.g., Department of Defense v. FLRA, 510 U.S.

We are unpersuaded by the cases LGC cites in its effort to shield the

entity subject to the Right-to-Know Law, is being properly and efficiently public to assess whether LGC, which has a conceded status as a governmental p. 11 Accordingly, we vacate the award of attorney’s fees and remand. had the opportunity to do so in light of LGC’s motion for reconsideration. based upon a mistaken premise which the trial court failed to correct when it

Given the circumstances of this case, we conclude that the award of fees was

not address this issue in its order denying the motion for reconsideration. 11 under RSA 91-A:5, IV and that such belief was reasonable. The trial court did withheld the salary information due to its belief that such records were exempt

information is granted. fees and costs with regard to the procurement of salary Know matter. Accordingly, the petitioner’s request for attorney’s

information. In its motion for reconsideration, LGC reiterated that it had

considers the petitioner to be the prevailing party in this Right-to- DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred.

understanding of LGC’s reason for withholding the requested salary and remanded. Thus, the trial court based its award of attorney’s fees upon a mistaken Affirmed in part; vacated in part; the specific salary information as the claimed exemption under RSA 91-A:5, IV.

were subject to the Right-to-Know Law. Therefore, the Court of its subsidiaries, including those it knew, or should have known, Know Law, LGC had refused to produce salary information for all

Earlier in its order, however, the trial court identified the reason LGC withheld

believe that all of the LGC entities were subject to RSA chapter 91-A. We agree. mistaken assumption that LGC withheld the information because it did not According to LGC, the trial court’s award of attorney’s fees was based upon its

the respondent entities may have been exempt from the Right-to- [W]hile LGC had a not unreasonable argument as to why some of

The trial court found that:

records from public disclosure, and, thus, it withheld the salary information. LGC argues that it reasonably believed that RSA 91-A:5, IV shielded such