2010-323 Hampton Police Association, Inc. v. Town of Hampton

McKittrick Law Offices

No. 2010-323

Rockingham

Mark S. Gearreald

orders of the Superior Court (McHugh DALIANIS, C.J. The respondent, Town of Hampton (Town), appeals the ___________________________

Paul G. Sanderson

from the Town’s outside counsel. The Town contends that the trial court ordering the Town to provide the Association with copies of certain invoices relief filed by the petitioner, Hampton Police Association, Inc. (Association), and

Center, as amicus curiae.

brief and orally), for the petitioner.

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 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 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as identify the work performed by case. Town counsel provided the court with p. 2 which Town counsel reiterated that outside counsel’s invoices generally did not The trial court held a hearing on the matter on January 14, 2010, at

the Town to produce the requested information. petition for injunctive relief, asking the trial court to, among other things, order at issue].” On September 30, 2009, the Association brought the instant charges on [the grievance, arbitration and petition to enforce arbitration award been provided [to the Association’s attorney] that segregate out the time and that the Town did not “have any documents beyond those that have already of [his] request.” In a September 22, 2009 letter, counsel for the Town replied amount of money spent by the Town is not privileged and is the proper subject “redact any information that it believes is privileged,” and observed that “[t]he privileged” information. The Association’s counsel suggested that the Town that he was “not requesting any other information, including possible by the Town on the Arbitration and subsequent Superior Court Appeal,” and attorney a letter explaining that his “request was for the time and monies spent

On September 15, 2009, the Association’s counsel sent the Town’s

invoice. Welch enclosed only the last two pages of outside counsel’s August 20, 2008 other legal matters” and were not limited to the dispute in question. Thus, enforce the arbitration award; the remaining invoices addressed “a variety of probationary employees’ grievance, arbitration and subsequent petition to bill from outside counsel contained time entries that related solely to the Right to Know Law.” Welch further explained that only the August 20, 2008 I. Background attorney-client privilege,” and, thus, “are excepted from the requirements of the contain confidential detailed billing narratives which are protected by the Association’s attorney “that the invoices from [the Town’s outside] attorneys . . . Arbitrator’s Award.” In his September 10, 2009 response, Welch advised the well as “the same information with regard to the Petition to Enforce the so-called Probationary Employees’ grievance and subsequent Arbitration” as and all Attorneys who have represented the Town or given advice regarding the pursuant to the Right-to-Know Law, “copies of each and every invoice from any for the Association wrote to Frederick Welch, the Town’s manager, requesting, The record reveals the following facts. On September 2, 2009, counsel

We affirm in part and reverse in part. subject to the attorney-client privilege. See RSA ch. 91-A (2001 & Supp. 2010). invoices were “confidential” under the Right-to-Know Law because they were to rule that the narrative descriptions contained in the original and revised revised invoice listing entries devoted only to a particular matter; and (2) failed erroneously: (1) ordered the Town’s outside counsel, as its agent, to prepare a p. 3 II. Discussion

unreasonably restricted. Id

the revised invoice to the Association itself. This appeal followed. the Association. The trial court denied the Town’s request for relief and sent asked the court to be relieved of its obligation to forward the revised invoice to the attorney-client privilege and, therefore, not subject to disclosure, the Town performed for the Town. Arguing that the detailed narratives were subject to outside counsel’s revised invoice contained detailed narratives about the work 3 is to be decided ultimately by this court.” N.H. Challenge v. Commissioner, to list the general subject matter and amount approximated for each service, Know Law. “The interpretation of a statute, including the Right-to-Know Law, Although the trial court’s order obliged the Town’s outside counsel only Resolving the issues on appeal requires that we interpret the Right-to- .; see N.H. CONST. pt. I, art. 8. While the statute right of access to governmental proceedings and records shall not be Know Law helps further our state constitutional requirement that the public’s Manchester, 149 N.H. 437, 438 (2003) (quotation omitted). Thus, the Right-totheir accountability to the people.” N.H. Civil Liberties Union v. City of public access to the actions, discussions and records of all public bodies, and purpose of the Right-to-Know Law is to ensure both the greatest possible N.H. Dep’t of Educ., 142 N.H. 246, 249 (1997) (quotation omitted). “The

Following its in

91-A:8, I (2001). [Association’s] attorney[’s] fees in having to file the within petition.” See RSA “elect[ed] not to require the Town to be responsible for any portion of the would entail “extra work” by the Town and its outside counsel, the court amount approximated for the service.” Because complying with its mandates revised bill to [the Association’s] counsel listing the general subject matter and many of the entries were devoted to the subject matter at issue and forward a ordered the Town’s outside counsel, as the Town’s agent, to “approximate how which the Association sought information. For the remaining entries, the court Town to photocopy the thirty-four entries that were devoted to the matter for accompanying dollar amount for the services rendered.” The court ordered the Town manager, without the specifics of their discussion, along with an work done on the matters at issue, for example telephone conversation with the Association was “entitled to receive copies of bills which reflect simply the

privilege. narratives in the invoices were privileged from disclosure by the attorney-client entries concerned multiple matters. The Town argued that all of the descriptive for which the Association sought information, but that the remaining thirty-five explaining that thirty-four of the sixty-nine entries concerned only the matter outside counsel’s invoices for the relevant time period for in camera review, p. 4 4

statute,” RSA 91-A: p. 4 4, I (Supp. 2010), it specifically does not parents, appear[ed] on registration cards and attendance records, the inspect . . . and to copy” all public records “except as otherwise prohibited by 426. “[A]lthough the children’s names, their addresses, and the names of their While the Right-to-Know Law guarantees “[e]very citizen . . . the right to school district, their parent’s names, and their addresses. Brent, 132 N.H. at school superintendent to create a list containing the names of children in the this information does not already exist.” The plaintiff in Brent format that the Association specifically requested. See had requested a into a list random information gathered from numerous documents, if a list of assertions, the court order did not require the Town to compile data into a the Right-to-Know Law “does not require public officials to retrieve and compile information.” Thus, the Association contends, contrary to the Town’s was in one set of documents. The Town had only to redact the non[-]requested VII. In Brent v. Paquette, 132 N.H. 415, 426 (1989), for instance, we held that in which it is not already kept or reported by that body or agency,” RSA 91-A:4, already existing information.” The Association asserts, “All of the information A. Revised Invoice body or agency to compile, cross-reference, or assemble information into a form (through outside counsel acting as the Town’s agent) to “create a subset of Association counters that the trial court’s order merely required the Town “require a public in which it is not already kept or reported by that body or agency.” The body or agency to compile, cross-reference, or assemble information into a form states that the Right-to-Know Law should not be construed “to require a public of Health and Human Services revised invoice, the trial court violated RSA 91-A:4, VII (Supp. 2010), which, 147 N.H. 376, 379 (2001). Association. The Town asserts that by requiring outside counsel to prepare a Hawkins v. N.H. Dep’t outside counsel, as its agent, to create a revised invoice for submission to the The Town first argues that the trial court erred when it required its

involved.” Id

omitted). burden to shift the balance toward nondisclosure.” Id. (quotation and brackets disclosure of material under the Right-to-Know Law, that entity bears a heavy

. (quotation omitted). “When a public entity seeks to avoid

understanding the necessary accommodation of the competing interests acts, because they are in pari materia, are interpretively helpful, especially in Id. “We also look to the decisions of other jurisdictions, since other similar provisions favoring disclosure broadly, while construing exemptions narrowly. County Convention, 1 p. 5 57 N.H. 375, 379 (2008). Therefore, we construe objective of facilitating access to all public documents. Lambert v. Belknap information in order to best effectuate the statutory and constitutional regarding the Right-to-Know Law with a view to providing the utmost does not provide for unrestricted access to public records, we resolve questions 5

with figures representing the amount of money the Town spent on each task issue. Nor could the Town, using the original invoices, provide the Association The instant case is on all fours with Brent outside counsel spent on specific tasks for the grievance and arbitration at Town to provide the Association with figures representing the amount of time to the highlighted work. Accordingly, the original invoices did not enable the because the Town could not discern how much of the time entry was dedicated arbitration matter at issue, but put a question mark next to the time entry the Town highlighted the work by outside counsel on the grievance and the Association sought information. When submitting them to the trial court, entries represented time expended on multiple cases, not only those for which “suggest[ed] that the billing was for a myriad of subjects.” These thirty-five court aptly found, thirty-five of the entries in outside counsel’s original invoices New Hampshire Civil Liberties Union. The record reveals that, as the trial

not already exist.” Id. at 440. records” was unlike requiring the police to create “a new document that does requiring the police to provide the NHCLU with “a subset of existing public In New Hampshire Civil Liberties Union existing documents in their original form.” Id. at 439-40. Thus, we concluded, Right-to-Know request, it does not shelter them from having to assemble rule shields agencies from having to create a new document in response to a new format contrary to Brent. Id. at 439-40. We explained, “While the Brent all, of the photographs, as requested, did not entail compiling records into a that requiring the police department to provide the NHCLU with some, but not officers, but not arrested. N.H. Civil Liberties Union, 149 N.H. at 438. We held Manchester Police Department had taken of people who were stopped by Liberties Union (NHCLU) sought access to consensual photographs that the distinguished Brent and its progeny. In that case, the New Hampshire Civil In Hawkins, 149 N.H. at 439-40, we

documents. Id. at 379. Medicaid claims in their original form, which would not entail creating new comply with this request by providing the plaintiff with copies of individual from 1993 to 1998. Hawkins, 147 N.H. at 377. We held that HHS could Medicaid reimbursement payments made to their dental healthcare providers to New Hampshire Medicaid recipients under the age of twenty-one and of sought by the plaintiff. The plaintiff sought records of dental services provided Services (HHS) to create a new document that contained only the information Law did not require the New Hampshire Department of Health and Human

, 147 N.H. at 379, we similarly held that the Right-to-Know

one. Id. school superintendent was not required by the Right-to-Know Law to create held that because a list of the requested information did not already exist, the requested information ha[d] never been compiled into a single list.” Id. We expectations of the party generating that information. Goode v. N.H. Legislative

p. 6 to-Know Law is assessed objectively, not based upon the subjective determination of whether information is confidential for purposes of our Rightpertaining to . . . confidential . . . information.” RSA 91-A:5, IV. The B. Original Invoices The Right-to-Know Law specifically exempts from disclosure “[r]ecords

or whether the information has customarily been regarded as confidential. Id. that will result from disclosure, rather than simply promises of confidentiality, the information was obtained. Id. This test emphasizes the potential harm cause substantial harm to the competitive position of the person from whom information holder’s ability to obtain necessary information in the future; or (2) resisting disclosure must prove that disclosure is likely to: (1) impair the information is sufficiently confidential to justify nondisclosure, the party it ordered the Town’s outside counsel to create a revised invoice. to the government.” Id subject to the attorney-client evidentiary privilege.. (quotation and brackets omitted). To show that For all of the above reasons, therefore, we hold that the trial court erred when disclosure to the public must be weighed against the benefits of non-disclosure A:5, IV (2001), and, therefore, exempt from disclosure, because they were was an entirely new document that the court ordered outside counsel to create. to determine whether records are exempt as confidential, the benefits of outside counsel performed were “confidential” within the meaning of RSA 91matter at issue and forward a revised bill” to the Association. The revised bill confidential, however, they are not per information. The Town contends that the narrative descriptions of the work se exempt from disclosure. Id. “Rather, “approximate how many of the [thirty-five] entries were devoted to the subject which pertained only to the matter for which the Association sought Budget Assistant, 148 N.H. 551, 554 (2002). Even if records are deemed The court specifically ordered outside counsel “to the best of her ability” to Town to photocopy the thirty-four entries in outside counsel’s original invoices, creation of a new document was exactly what the trial court order required. The Town next asserts that the trial court erred when it ordered the While the Association contends that no new document need have been created, document that would provide the Association with the requested information. required the Town, through outside counsel, to create an entirely new Based upon this record, we conclude that the trial court erred when it

sought. already existed that would provide the Association with the information it thirty-five entries containing information about multiple matters, no document related to the grievance and arbitration issue. In short, with regard to the subject of confidential communications with any specificity are not p. 7 descriptions of the nature of the services performed and do not reveal the Courts generally agree that billing statements that provide only general

Sur. Co., 144 F.R.D. 600, 607 (D. Mass. 1992) (“Documents regarding the disclosure by the attorney-client privilege.”); Colonial Gas Co. v. Aetna Cas. & enforced in this jurisdiction.” Riddle Spring Realty Co. v. State general purpose of the work performed are usually not protected from The Town argues that detailed descriptive billing entries are per and an attorney are privileged and protected from inquiry is recognized and amount of the fee, the identification of payment by case file name, and the “The common law rule that confidential communications between a client Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (“[T]he identity of the client, the Cypress Media, Inc., 997 P.2d at 691; see also Clarke v. American Commerce

1994) (quotation omitted). client,” Maxima v. 6933 Arlington Dev., 641 A.2d 977, 984 (Md. Ct. Spec. App. reveal[ ] no confidential professional communications between attorney and Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999), because such records “ordinarily the attorney-client privilege does not extend to billing records,” Chaudhry v. the attorney-client privilege . . . .”). As other courts have explained, “[t]ypically, 205, 208 (N.C. Ct. App. 2000) (“Billing records do not automatically fall under in their entirety” by the attorney-client privilege); State v. Cherry, 541 S.E.2d City Pages, 655 N.W.2d at 845 (holding that billing records “are not protected all narrative statements in attorney fee statements are not per se privileged); of Overland, 997 P.2d 681, 693 (Kan. 2000) (affirming trial court’s ruling that jurisdictions have rejected such a per se rule. See, e.g., Cypress Media v. City an issue of first impression in New Hampshire, courts in many other privileged from disclosure under the attorney-client privilege. Although this is

common law attorney-client privilege. Ct. App. 2003). New Hampshire Rule of Evidence 502 essentially codifies the hold that the trial court did not err in this regard. representatives.” Id that the narrative descriptions were subject to the attorney-client privilege. We.; see City Pages v. State, 655 N.W.2d 839, 844 n.5 (Minn. disclosure . . . unless the protection is waived by the client or his legal above because it concluded that the Town failed to meet its burden of proving confidence by the client, are at his instance permanently protected from In this case, the trial court did not engage in the balancing test described capacity as such, the communications relating to that purpose, made in “Where legal advice . . . is sought from a professional legal adviser in his 273 (1966) (quotation omitted). The classic explication of the privilege is:

with the party seeking nondisclosure. Id. at 555. at 554-55. The burden of proving whether information is confidential rests p. 8 Affirmed in part; and reversed burden of proof. See of attorney billing statements because of the attorney-client privilege bears the In the context of the Right-to-Know Law, the party seeking nondisclosure

DUGGAN, HICKS and LYNN, JJ., concurred.

in part.

rejecting this request. were privileged. In light of our ruling, we hold that the trial court did not err by were privileged, but rather urged the court to find that all of the narratives behind the representation” and were privileged from disclosure). We hold, however, that the attorney-client privilege may Town did not specifically identify to the trial court the narratives it claimed reveal[ed] strategies, confidential communications, and the thought processes application of privilege to particular narrative statements). In this case, the narrative statements in attorney fee statements are privileged must show (quotation omitted); see Cypress Media, 997 P.2d at 693 (parties claiming that record so that the court can rule with specificity.” Maxima, 641 A.2d at 984 extremely disfavored, and ordinarily the privilege must be raised as to each

subjects the attorney researched and the papers he reviewed “necessarily the people with whom the attorney talked, the topics they discussed, the rendition of the work performed for a client,” including identifying, by name, 1248-49 (Miss. 2003) (billing statements that provided “an hour-by-hour Colo. 1997); Maxima, 641 A.2d at 984; Hewes v. Langston, 853 So. 2d 1237, 129; see Chaudhry, 174 F.3d at 402; In re Gibco, Inc., 185 F.R.D. 296, 299 (D. provided, such as researching particular areas of law.” Clarke, 974 F.2d at representation, litigation strategy, or the specific nature of the services information in a billing record that reveals “the motive of the client in seeking

client privilege. descriptive narratives in attorney invoices to clients are subject to the attorneyauthority, we decline the Town’s invitation to adopt a per se rule that all privileged communications were not privileged). Based upon the above and discussions without detailed entries that advised, analyzed or discussed that merely identified attorney’s preparation of pleadings, phone calls, meetings Tipton v. Barton, 747 S.W.2d 325, 332 (Mo. Ct. App. 1988) (billing statements payment of fees, billing and time expended are generally subject to discovery.”);