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

No. 2009-788

Merrimack

orders of the Superior Court (Mangones HICKS, J. The petitioners, ATV Watch and Andrew Walters, appeal

Michael A. Delaney

(ATVs) on former railroad corridors converted to rail trails by DOT. We affirm. Law Office of Joshua L. Gordon Constitution of records related to allowance of the use of all terrain vehicles RSA ch. 91-A (2001 & Supp. 2010), and Part I, Article 8 of the State Transportation (DOT) seeking disclosure, under the Right-to-Know (RTK) Law, declaratory and injunctive relief against the New Hampshire Department of

the State. general, on the brief, and David M. Hilts, assistant attorney general, orally), for

brief and orally), for the petitioners.

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 its refusal to disclose certain governmental records. Brillhart responded by p. 2 Walters e-mailed Brillhart on August 31, requesting that DOT reconsider

certain portions that “contain privileged communications or personal notes.” addition, the letter identified seven documents from which DOT was redacting [DOT] . . . span[ning] from March 1, 2007 through August 17, 2007.” In communications between attorneys within the Department of Justice and March, April, May, June and July 2007,” or “confidential attorney/client e-mail releasing “preliminary draft correspondence . . . prepared during the months of employees Ram Maddali and Bill Cass. He also specified that DOT was not that the information was gathered from his project files and the files of DOT was available to him by appointment with DOT personnel. Brillhart specified Walters that a portion of the materials he requested had been assembled and disclosing documents violated the RTK law. On August 22, Brillhart wrote disclosure of the requested material and contending that DOT’s delay in Walters contacted DOT again on July 31 and August 6, 2007, seeking

17, 2007. scope of [the] request,” he expected to have the records available by September pertaining to [Walter’s] request” and that “[g]iven available resources and the dated July 30, 2007, that DOT had “started assembling the information use of New Hampshire’s TE funded rail trails.” Brillhart responded, by letter governmental records in the custody or control of [DOT] related to motorized Hampshire’s Right to Know Law (RSA 91-A) I am asking to review all “Under Article 8 of the New Hampshire State Constitution and under New Walters e-mailed Brillhart again on July 24, 2007, stating, in part,

petitioners do not contend that this e-mail constitutes a RTK request. the event “the State intends to ‘work around’ the restrictions to ATVs.” The In an April 17, 2007 e-mail to Brillhart, Walters requested information in

“position and our proposed course of action.” a “tentative resolution” was reached, he would inform Walters of DOT’s Department of Resource[s] and Economic Development” (DRED), and that once Walters raised “have prompted discussions with the [FHWA] and the NH David Brillhart, assistant commissioner of DOT, responded that the issues such trails, with the exception of, under certain conditions, snowmobiles. the conclusion that federal law prohibited the use of motorized vehicles on funds.” Walters inquired whether the State had any information contrary to purchased by the State using Federal Transportation Enhancement (TE) the Federal Statutes related to motorized use of the rails trails that were Watch to the Federal Highway Administration (FHWA) asking “FHWA to clarify Watch, wrote to the commissioner of DOT regarding a recent inquiry by ATV in the record. On February 23, 2007, Walters, who is the director of ATV The following facts are recited in the trial court’s orders or are supported copies of the withheld documents, along with an index of those materials, for in p. 3 Following the hearing, DOT provided the court under seal with unredacted materials redacted or withheld on the basis of privilege or exemption. records requested, except for some materials recently located and other February 11, 2008, DOT indicated that it had given the petitioners all of the relief, fees, costs and sanctions on January 24, 2008. At a hearing on The petitioners filed their petition for declaratory judgment, injunctive On August 21, following its in

petitioners a new Vaughn 2008, the court ordered DOT to prepare for the court and provide to the withheld items to the descriptions in DOT’s index. Therefore, on June 24, caveat that two items were properly withheld as drafts “if not sent to redacted, with the exception of an e-mail string on one item and with the Subsequently, the court found that it had difficulty matching some of the items A through BB, and determined that all were appropriately withheld or on the merits. The court individually addressed 28 items, which it labeled as

DOT had “complied with New Hampshire law in responding to your requests.” for confidentiality that is asserted concerning each withheld document.” releasing. In response, Brillhart declined to offer further details, stating that equivalent numbering” and “set[s] forth the nature of the privilege or grounds documents identified by Walters and any additional items that DOT was not reasonable description and by reference to their numbering stamp numbers or claimed by DOT, and that DOT give specific reasons for withholding nineteen index that “identifies the withheld documents by a were being withheld under the various categories of privilege or exemption raised.” In particular, Walters requested that DOT identify the documents that DOT’s November 5 letter as being “unresponsive to a number of issues we information to release. Walters e-mailed Brillhart on November 21, criticizing DOT had no new correspondence, other than Walter’s, or additional 142 N.H. 540, 548-49 (1997) (discussing use of Vaughn index). 484 F.2d 820 (D.C. Cir. 1973); Union Leader Corp. v. N.H. Housing Fin. Auth. his RTK requests and was informed in a November 5 letter from Brillhart that, and the positions asserted by [DOT] as to those items.” See On November 2, Walters again e-mailed Brillhart asking for an update on Vaughn v. Rosen, purposes of apprising the [petitioners] of the redacted or withheld materials noting that it would “utilize the [DOT] index as a public Vaughn index for camera review. The court ordered that the index be provided to the petitioners,

decision to withhold certain documents. redacting exempt information. Finally, Brillhart declined to reconsider DOT’s identified two additional items of correspondence from which DOT was been assembled and was available to Walters by appointment. He also letter dated September 13, 2007, stating that the requested information had business days of request, make such record available, deny the p. 4 available for immediate inspection and copying, it shall, within 5 If a public body or agency is unable to make a governmental record

files when such records are immediately available for such release.

inspection and copying any such governmental record within its

governmental record reasonably described, make available for

Id

Each public body or agency shall, upon request for any . . . which is a question of law that we review de “Resolution of this case requires us to interpret the Right-to-Know Law, documents.

RSA 91-A:4 provides, in part:

constitutional objective of facilitating access to all public

appeal. which they had not incurred expenses for legal counsel.” The petitioners information in order to best effectuate the statutory and a period of time during which [they] did not have legal counsel and during the Right-to Know law with a view to providing the utmost petitioners appear to be seeking a remedy of an assessment of counsel fees for privilege and denied the request for fees, noting that “to a large degree, [the] dated September 18, 2009, the court declined to reconsider its rulings on attorney’s fees and costs pursuant to RSA 91-A:8 (Supp. 2010). In an order conduct discovery, and then asked the court to issue a final order and to award

review it as such. court’s failure to find a violation as a rejection of the petitioners’ position, and violation, and discussed at the February 11, 2008 hearing, we interpret the issue.” Nevertheless, as the issue was cited in the petition as a specific RTK statutory language is ambiguous. We resolve questions regarding request. They contend that “[i]t appears the [trial] court did not address this limited the scope of its search” for material sought in the petitioners’ RTK On appeal, the petitioners first seek a ruling that “DOT unlawfully

The petitioners unsuccessfully moved to extend the proceedings to

the words used and will consider legislative history only if the When interpreting a statute, we first look to the plain meaning of

. (quotation omitted).

N.H. v. Local Gov’t Ctr., 159 N.H. 699, 703 (2010).

drafts under RSA 91-A:5, VIII and IX (Supp. 2010). “[a]ttorney material” or “[a]ttorney-client material,” or exemption as to notes or

addressee.” The grounds for nondisclosure consisted of privilege as to p. 5 Lee v. United States Atty. for S. Dist. of Fla.

in good faith.

document out there that was not gathered in its search. files and was very thorough. As far as I know, there’s no other can do is represent to the Court that the DOT went through its a specific allegation of some document that exists, I -- I can’t -- all I showing that the search was not reasonable or was not conducted documents that he should have gotten that he didn’t get. Without

burden shifts to the requester to rebut the agency’s evidence by I’m not sure if Mr. Walters is saying that there were some

meets its burden to show that its search was reasonable, the

11 hearing, where counsel for the State made the following representation: Here, the matter of the search’s adequacy was addressed at the February

RTK request. Cf address the adequacy of a public body’s or agency’s search in response to a RSA 91-A:4, IV (Supp. 2010). We have not yet had occasion to specifically nonconclusory, and submitted in good faith. Once the agency

documents.” Church of Scientology Intern. v. United States Dept. of Justice

met by producing affidavits that are relatively detailed, shall be granted or denied.

Cir. 2008) (quotations, citations and ellipsis omitted).

the agency’s search was reasonably calculated to discover the requested The crucial issue is not whether relevant documents might exist, but whether agency’s search for documents . . . is judged by a standard of reasonableness. Under the federal Freedom of Information Act (FOIA), “the adequacy of an

calculated to uncover all relevant documents. This burden can be the time reasonably necessary to determine whether the request beyond material doubt that it has conducted a search reasonably The search need not be exhaustive. Rather, the agency must show

30 F.3d 224, 230 (1st Cir. 1994) (quotations and citation omitted).

interests involved.” Union Leader Corp., 142 N.H. at 546 (quotation omitted). especially in understanding the necessary accommodation of the competing laws “because they are in acknowledgment of the receipt of the request and a statement of pari material [and] are interpretively helpful, therefore consult the decisions of other jurisdictions with similar right to know existing documents in their original form”); RSA 91-A:4, VII (Supp. 2010). We document in response to a [RTK] request,” it may be required to “assemble 437, 440 (2003) (noting that while an agency does not have “to create a new

. N.H. Civil Liberties Union v. City of Manchester, 149 N.H.

request in writing with reasons, or furnish written process in responding to the [FHWA] letter of February 13, 2007.

p. 6 in this case means anything that was considered in the discussion

We need to retrieve and isolate relevant related e-mail. “Relevant”

reference to ATV usage of corridors purchased with federal funds.

We have received a Right-to-Know request from ATV Watch in

cite an e-mail circulated at DOT August 15, 2007, that stated in part: In support of their challenge to the scope of DOT’s search, the petitioners

to testify. See detailed, the State had witnesses at the hearing who were presumably prepared While counsel’s representations are conclusory and not particularly

(quotation omitted). We proceed similarly here. substantial doubt concerning the adequacy of the Department’s search.” Id. plaintiff in Iturralde v. Comptroller of Currency appeal is whether [the plaintiff] has provided sufficient evidence to raise We consider the petitioners to be in a similar position to the FOIA “treat[ed] the affidavit as sufficient” and determined that “the only question on plaintiff failed to challenge the affidavit’s sufficiency below, the appellate court describe the nature of that search.” Id. Nevertheless, in part because the of International Narcotics and Law Enforcement Affairs was conducted or search of their records. point does the affidavit state under oath that a search of the files of the Bureau long the issue’s been going on, and they -- they did a reasonable plaintiff].” Iturralde. . . I mean, the DOT knows who’s involved in this issue, how, 315 F.3d at 314. The Iturralde court noted that “at no Enforcement Affairs had been conducted, referencing several letters to [the letter that a search of the files of the Bureau of International Narcotics and Law “stated conclusorily that the [State] Department had informed [the plaintiff] by who failed to challenge in the district court the sufficiency of an affidavit that

265 (1999) (party failed to object to conducting hearing on offers of proof). witnesses at the February 11 hearing. See Smith v. Shepard, 144 N.H. 262, petitioners did not object to the procedure or seek to examine the State’s after. . . . I had witnesses here. I made offers of proof to this Court.” The We had a hearing. That was the time to get the sworn statement that they’re that to. . . . discovery, the State’s attorney argued: “The Petitioner[s] . . . filed the petition. The DOT knows what documents it has and who it should refer at the time of the offer.”). At a later hearing on the petitioners’ motion for testimony of a witness shall be received only if that witness is in the courtroom

Super. Ct. Admin. Order 15 (“An offer of proof as to the

The DOT properly gave the scope of its search to its employees.

Counsel later stated: p. 7 We conclude that the petitioners have failed to “provide[] sufficient evidence to Both of those documents were released to the petitioners on August 22, 2007. Maddali and Cass spanning the period from January 17 to February 9, 2007. memo to Cass dated January 8, 2007, and e-mail correspondence between the record contains documents dated prior to February 13, 2007, including a Maddali’s and Cass’s files had been searched contained no time frame. Indeed, comprise the entire search conducted by DOT. Brillhart’s indication that his, 2007.’” As noted above, the request contained in the August 15 e-mail did not inference that DOT’s search was limited to “documents ‘after February 13, The August 15 e-mail also fails, in light of the record, to support an

original correspondence.” become available, but no later than September 17, 2007 as noted in my electronic form and we will contact you as soon as the computer records determining whether any additional emails pertaining to this request exist in then available, Brillhart specifically stated that DOT was “currently working on In his August 22 letter informing Walters that some responsive materials were responsive e-mails after other responsive documents had been made available: Rather, we read the August 15 e-mail as evidencing DOT’s continued search for argument that DOT limited its search to e-mails is belied by the record. the “discussion on allowing ATVs on TE funded trails.” Thus, the petitioners’ “all emails, notes, meeting minutes and any other information pertaining to” at DOT on June 8, 2007, requested the recipients to save, as of April 17, 2007, handwritten memos. In addition, as the State points out, an e-mail circulated among the items being withheld by DOT certain memos, handwritten notes and from his project files, and Maddali’s and Cass’s files. The letter also listed information was then available stated that the information had been gathered Brillhart’s August 22, 2007 letter informing Walters that some of the requested The record indicates that DOT’s search was not limited to e-mails.

agree. responds that the petitioners’ claims are not supported by the record. We and “sought the documents generated in the January exchange.” The State 2007, . . . knew FHWA had been in contact with DOT immediately thereafter” issue with FHWA of ATVs regarding TE-funded rail-trails in early January, documents ‘after February 13, 2007,’” whereas the petitioners “first raised the sought ‘all governmental records’”; and (2) it “limited the agency’s search to ‘e-mail correspondence,’ whereas ATV-Watch[’s July 24, 2007 RTK request] request in two ways: (1) “it limited the scope of the agency’s internal search to The petitioners argue that this e-mail was narrower than their RTK

ATVs). 13, 2007 (date of FHWA letter requesting clarification on the use of

As such we are interested in e-mail correspondence after February them with some form of Vaughn p. 8 petitioners appear to essentially contend that DOT was required to provide made no effort to specify which document went with which reason.” The 22, 2007 letter to Walters contained “a list of records and a list of reasons, but the exemptions it claimed. Specifically, they contend that Brillhart’s August The petitioners next argue that DOT failed to give sufficient reasons for

supported. immediate release. We therefore reject their argument as inadequately documents, however, or elaborate as to why they were “probably” available for available in July, and the delay was unnecessary.” They do not identify those documents on September 13, it appeared that many were probably immediately

The petitioners nevertheless argue that “[w]hen ATV-Watch received the

RTK law. requested by September 17, 2007.” On its face, the response complies with the request, we anticipate having the ‘public records’ available to you, as you have the request and stated that “[g]iven available resources and the scope of your which was within five business days. The response acknowledged receipt of DOT responded to the petitioners’ July 24, 2007 request on July 30,

to attorney’s fees. We will, nevertheless, address the legal issue of timeliness. even assuming DOT’s response was untimely, the petitioners were not entitled index at the initial stage of responding to a it found the issue relevant to an award of attorney’s fees and concluded that The trial court did not specifically rule on the timeliness of disclosure, as

“oversight,” “fault,” “harm,” or “prejudice.”

withholding documents that were immediately available. They cite ATV Watch The petitioners next contend that DOT violated the RTK law by

or otherwise, it must within five business days of the Right-torecords available when they are immediately available for release,

factors applied by the trial court, such as “reasonable speed,” language of the provision does not allow for consideration of the determine whether the request will be granted or denied. The plain writing with a statement of the time reasonably necessary to in writing with reasons; or (3) acknowledge receipt of the request in Know request: (1) make the records available; (2) deny the request

absolute. The statute mandates that an agency make public The time period for responding to a Right-to-Know request is

we stated: v. N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434, 440-41 (2007), in which

315 F.3d at 314 (quotation omitted). raise substantial doubt concerning the adequacy of [DOT’s] search.” Iturralde, agency’s decision-making process.” Harwood v. McDonough p. 9 “protect[] pre-decisional, deliberative communications that are part of an exemption in their right to know or freedom of information acts was designed to We concur with other jurisdictions holding that the “preliminary draft”

disagree. become either a ‘preliminary’ document or a ‘draft,’ it is no longer exempt.” We Once a document has moved beyond its ‘preliminary draft’ stage, and has drafts” “together suggest a document only in its budding stage of development. body.” RSA 91-A:5, IX. The petitioners argue that the words “[p]reliminary circulated, or available to a quorum or a majority of the members of a public memoranda and other documents not in their final form and not disclosed, The RTK law exempts from disclosure “[p]reliminary drafts, notes, and

cite Wilson v. Freedom of Information Commission, 435 A.2d 353, 359 (Conn. law to interpret state freedom of information act). The petitioners themselves 863, 864 (Ill. App. Ct. 2003) (quotations omitted) (court looking to FOIA case

arguments are preserved. 11 hearing. Therefore, we assume without deciding that the petitioners’ the statutory exemption for preliminary drafts was addressed at the February petitioners raised the circulation argument in a pleading, and the meaning of trial court and are therefore not preserved for appeal. We note that the facts. The State counters that the petitioners’ arguments were not raised in the development, were circulated to or created by an entity outside DOT, or contain as “drafts” was improper because the documents were too far along in The petitioners next argue that DOT’s withholding of certain documents

with the underlying reasons.” Judicial Watch, Inc. v. Clinton under FOIA is that it inform the requester of its decision to withhold, along “The only statutory requirement applicable to an administrative agency

and accordingly reject the petitioners’ challenge to DOT’s RTK response. agency denial of a RTK request need not contain the detail of a Vaughn index, Judicial Watch, 880 F. Supp. at 11. We similarly conclude that an initial by a court after the plaintiff has exhausted the administrative process.” Cal. 2006). Rather, “[a]gencies need not provide a Vaughn Index until ordered 2001); see Sakamoto v. United States E.P.A., 443 F. Supp. 2d 1182, 1189 (N.D. 131 F. Supp. 2d 142, 147 (D.D.C. 2000), aff’d, 2001 WL 674636 (D.C. Cir. an initial request for documents.” Schwarz v. United States Dept. of Treasury, that “there is no requirement that an agency provide a . . . ‘Vaughn’ index on writing with reasons.” RSA 91-A:4, IV. Courts interpreting FOIA have held provides that when an agency denies a RTK request, it “deny the request in 11 (D.D.C. 1995), aff’d, 76 F.3d 1232 (D.C. Cir. 1996). The RTK law similarly

RTK law does not require such a response. RTK request. Looking again to FOIA cases for guidance, we conclude that the p. 10 We agree with the Wilson ‘snow traveling vehicles.’” They cite Citizens for a Better Environment v. construction of “preliminary” as denoting an early stage in the drafting process. exempt because they “contain[] facts regarding New Hampshire’s definition of predecisional agency communications, we reject the petitioners’ contrary We also reject the petitioners’ argument that documents E and Y are not

Judicial Watch, 880 F. Supp. at 12. the nature of the process is more significant than the nature of the materials.” Having concluded that RSA 91-A:5, IX is intended to protect factual distinction has given way to more process-oriented considerations, i.e., distinguished deliberative from purely factual information,” “[t]he deliberative- We note a similar trend in FOIA law: While “[e]arly FOIA decisions the focus of the exemption is on the predecisional posture of the document. development.” We reject that proposition as inconsistent with our premise that or suggestions not based on fact, it is public, regardless of its stage in policy that “[w]hen a document contains facts, rather than contemporaneous opinions California Department, 217 Cal. Rptr. 504 (Ct. App. 1985), for the proposition

exempt as preliminary drafts. are drafts of a letter from DOT to DRED, are too close to completion to be which are drafts of a letter from DOT to FHWA, and documents H and I, which 358. Accordingly, we reject the petitioners’ argument that documents E and Y, persons from whom they originate expect to alter them.” Wilson, 435 A.2d at and final] documents does not consist of the extent to which the person or

governmental proceedings and records shall not be unreasonably documents. Part I, Article 8 provides that “the public’s right of access to construction of RSA chapter 91-A that exempts predecisional agency We find no conflict between Part I, Article 8 of our constitution and a governmental records. We find no error. preliminary drafts and related notes unreasonably restrict access to” court ruled that it was “not persuaded that restrictions on access to function effectively.” Wilson, 435 A.2d at 359 n.8. In the instant case, the trial balance between the public’s right to know and the government’s need to noted, “The object of . . . [preliminary draft] exemptions . . . is to strike [a] N.H. CONST. pt. I, art. 8 (emphasis added). As the Connecticut Supreme Court

that the phrase in New Hampshire must be construed even more narrowly.” constitution does not contain a corollary to our open government mandate, and Connecticut construction is useful, it should be recalled that Connecticut’s predecisional process.” They argue, however, that “[t]o the extent the intended to encompass “records of [the agency’s] preliminary, deliberative and notes or drafts exemption in that state’s freedom of information act as being 1980), in which the Connecticut Supreme Court interpreted the preliminary p. 11 11

working document was given to a quorum of the public body, it would then notes, and memoranda and other documents not in their final form.” N.H.S. to add this section to RSA chapter 91-A initially exempted “[p]reliminary drafts, Senate took the House’s amendment, which basically clarified that any time a Legislative history confirms our reading of the statute. The amendment been already acted upon, on the other. See defined in RSA 91-A:1-a.” Id. at 1205. Senator Clegg explained that “[t]he hand, and those that are available for policy-making consideration or have disclosed, circulated, or available to a quorum or a majority of those entities was intended to distinguish between predecisional documents, on the one public.” Id. The amendment was later revised to add the language “and not The last part of RSA 91-A:5, IX, however, indicates that the exemption out to the committee, then it becomes a public document as soon as I make it On the other hand, he stated, “If I take something that is a draft and hand it the right to file a piece of paper that forces me to hand it to them.” Id. at 857. released to the public or to the Senate as a whole, I don’t think that anyone has stated, “If I have something that I am working on, and I don’t feel is ready to be Jour. 854 (2004). When questioned about its intent, Senator Robert Clegg

majority of the members of a public body.” RSA 91-A:5, IX. “disclosed” and “circulated” as also being modified by “to a quorum or a intended to make agency documents subject to disclosure, we read the terms deliberation and action. Taking that as the point at which the legislature body” delineates a point at which documents become subject to agency documents as “available to a quorum or a majority of the members of a public documents relating to agency, law, policy, or procedure”). Describing “distinguish[ing] between predecisional, decisional, and postdecisional that federal courts construing FOIA employ a temporal analysis,

beyond the person drafting the document. circulation to the public, or disclosure or circulation, even within the agency, however, makes that construction no more plausible than disclosure or outside the agency was intended. The language of RSA 91-A:5, IX alone, circulated to whom? The petitioners assume that disclosure or circulation 423-24 (2009). Even assuming the latter, the question remains: disclosed or public body,” id., or they are not. See State v. Kousounadis, 159 N.H. 413, “circulated” are modified by “to a quorum or a majority of the members of a interpretations of the statute are possible: either the terms “disclosed” and majority of the members of a public body.” RSA 91-A:5, IX. Two their final form and not disclosed, circulated, or available to a quorum or a circulated outside the agency. Rather, the statute exempts “documents not in RSA 91-A:5, IX specifically invalidates the exemption when a document is because they were circulated outside of DOT. Nothing in the plain language of DOT to FHWA, as well as documents H and I are not exempt under 91-A:5, IX The petitioners argue that documents D and E, which are letters from to Attorney Mark Hodgdon, [redacted material].” By obtaining an unredacted p. 12 to DRED that contains the statement: “I have sent copies of these documents challenged document, labeled AA by the trial court, is an e-mail from Maddali on the basis of the attorney-client or work product privileges. The first The petitioners next challenge the withholding or redacting of documents

not shown any error in the trial court’s ruling on this issue. him or her remember a work-related task would be a public record.” O’Shea v. premise and therefore reject the petitioners’ argument. The petitioners have Otherwise, “every yellow-sticky note penned by a government official to help 12 business.” We find nothing in the language of RSA 91-A:5, VIII to support that under the statute is narrower than “bearing on the agency’s business.” ‘note’ is circulated within or without the agency it is by definition agency RSA 91-A:5, VIII. In addition, we conclude that having “an official purpose” FHWA (document B).” The argument is based upon the premise that “[w]hen a exempt, as it applies to notes made “during . . . a governmental proceeding.” exempt because the documents were “circulated to DRED (document A) or 91-A:5, VIII clearly contemplates that notes made “on government time” may be bearing on the agency’s business.” We disagree. As the State points out, RSA We also reject the petitioners’ argument that the redacted material is not materials’ made on government time are disclosable unless they have no The petitioners argue that under RSA 91-A:5, VIII, “all ‘notes and

under RSA 91-A:5, VIII. DOT’s second, court-ordered Vaughn Two documents, labeled A and B by the trial court, were withheld by DOT notes and materials made prior to, during, or after a governmental proceeding.” or required by” the Right to Know law. Id. personal use that do not have an official purpose, including but not limited to, Like the O’Shea court, we believe “[s]uch absurd results were not contemplated RSA 91-A:5, VIII, which exempts “[a]ny notes or other materials made for West Milford Bd. of Educ., 918 A.2d 735, 738 (N.J. Super. Ct. App. Div. 2007). The petitioners next challenge DOT’s withholding of documents under

properly withheld under RSA 91-A:5, VIII and IX. pursuant to RSA 91-A:5, VIII.” The trial court found that the materials were given was “[h]andwritten personal notes in margins and on sticky note redacted “[u]ndated draft letter to Commissioner Murray from FWHA” and the reason in margins redacted pursuant to RSA 91-A:5, VIII.” B was described as an cited the reason for withholding or redacting as “[h]andwritten personal notes document A as a “February 15, 2007 letter from DRED to Ram Maddali” and

RSA 91-A:5, IX. assumption that disclosure to another agency invalidates the exemption under have to be public.” Id. at 1206. Accordingly, we reject the petitioners’ this argument further. p. 13 they were not withheld on those grounds. Accordingly, we decline to consider Notwithstanding the labeling of these documents as attorney-client privileged, mails in its Vaughn your Petition concerning the scope of the DOT’s search for documents . . . .” the petitioners acknowledge, DOT identified the senders and recipients of the ebeing released solely for the limited purpose of responding to allegations in everything but the letterhead and addressee’s name and address redacted. As the DOT’s search for documents in response to your 91-A request. They are document, which is common practice, rather than disclosing the letter with withholding a letter sent through the post office to its attorney as an entire “contain privileged attorney-client communications or work product concerning no error. DOT’s redaction of the e-mails in their entirety is equivalent to Walters, Assistant Attorney General Edith Pacillo stated that the documents The trial court found the communications properly redacted and we find after the February 11 hearing. Specifically, in a February 13, 2008 letter to three documents inadvertently withheld from them but provided at or shortly The petitioners also challenge the labeling as attorney-client privileged of

forced into the open as a result of ATV-Watch’s litigation.” information, [it] is also an example of information not timely disclosed and only there no conceivable basis for a claim of privilege with regard to the header headers – that is, the ‘to,’ ‘from,’ and ‘about’ lines,” and argue that “[n]ot only is general’s office. They assert that “[p]art of what was blacked out are the email several e-mail communications between Maddali and lawyers at the attorney The petitioners next challenge the redaction from documents X and Z of

information the petitioners claim was denied them. DOT. State v. Gordon index, thus providing the functional equivalent of the purpose of facilitating the rendition of professional legal services to the client,’” substance of a communication from DOT to its attorney that was “‘made for the privileged relationship.” We disagree. The redacted language revealed the were, the privilege was waived by its communication with those outside the talk to the other agency’s lawyer is not a privileged communication. Even if it The petitioners contend “[t]he fact that one agency asked its lawyer to

privileged relationship. Accordingly, we find no error. cannot say the privileged communication was shared with someone outside the attorney general’s office, were jointly working on a single policy issue, we under the circumstances, in which two State agencies, both represented by the would be focusing upon in providing services to his or her client. Moreover, The documents referenced in the communication reveal the issues the attorney

“with a request to coordinate with your attorney.” copy from DRED, the petitioners discovered that the redacted language stated court-ordered Vaughn p. 14 “March 11, 2008, after the February hearing.” Nevertheless, DOT filed its February 2008 hearing,” they did not receive the document from FHWA until raising issues regarding document ‘D’ in [their] initial Petition or at the On appeal, the petitioners assert that while “DOT impugns [them] for not determine that they are not privileged. Cf or redacted as attorney-client privileged, but ask us to review all of them and The petitioners do not separately address any other documents withheld

for an unsustainable exercise of discretion. See as a motion to reconsider the court’s order on the merits, we review its denial to document D was waived by its circulation to FHWA. If we treat that request hearing, the petitioners sought to obtain a finding that the draft exemption as In its request for findings and rulings filed after the December 23, 2008

raise the issue in a timely fashion. had not been brought up earlier. The trial court ruled that petitioners did not evidence that document D had circulated, and questioned why that evidence discover that fact.” The State’s attorney noted that the petitioners already had raised. asking if they were, then the privilege may have been waived. So it’s simply to unsustainably exercised its discretion in ruling that the issue was not timely whether these documents were circulated outside of the privilege. We’re simply (explaining unsustainable exercise of discretion). We cannot say that the court explained at the hearing that “what the Vaughn index did not show was . . . Auth., 133 N.H. 154, 160 (1990); State v. Lambert, 147 N.H. 295, 296 (2001) Document Y through a FOIA request to FHWA. The petitioners’ attorney Fortin v. Manchester Housing motion noted that the petitioners obtained a document similar to withheld information regarding the integrity of [DOT’s] court ordered Index.” The to propound interrogatories seeking, as stated in their motion, “critical on their motion to extend the proceedings to engage in discovery. They sought The petitioners first raised the issue at the December 23, 2008 hearing the court ruled on the merits. explain why they did not bring Document D to the trial court’s attention before order on the merits on August 22, 2008. The petitioners’ make no effort to

below, and that the trial court so ruled. us that it is not. The State counters that this issue was not timely raised nothing in the document that appears to be privileged,” and seek a ruling from to be a similar letter in draft form. The petitioners argue that they “can discern FHWA dated May 10, 2007. Documents E and Y, which DOT withheld, appear obtained from FHWA via a FOIA request. The document is a letter from DOT to the trial court’s designation) that it claims was never provided to them but was The petitioners place in the same category a so-called document “D” (not or should have known that its conduct violated the statute.” N.H. Challenge v. p. 15 necessary to make the information available; and (2) that the defendant knew “requires two findings by the superior court: (1) that the plaintiff’s lawsuit was them costs and attorney’s fees. An award of attorney’s fees under the RTK law Finally, the petitioners argue that the trial court should have awarded

was an unsustainable exercise of discretion. order to then articulate such reasons.” The petitioners have failed to show this in sanctionable behavior,” but rather “appear[ed] to be seeking discovery in “articulate[] sufficient reasons they have for believing that [DOT] had engaged exercise of discretion.” In the Matter of Maynard & Maynard agents.” The trial court denied the motion, noting that the petitioners failed to discretion of the trial judge, and we will uphold it unless it is an unsustainable identify witnesses, under oath, regarding sanctionable conduct of [DOT] and its discovery. “The decision to disallow . . . discovery is within the sound [r]equests for [p]roduction of [d]ocuments are intended to discover facts and The petitioners next argue that they should have been allowed to conduct proceedings to conduct discovery. They argued that their “[i]nterrogatories and its agents.” On September 17, 2008, the petitioners moved to extend the believe that sanctionable conduct may have been engaged in by defendant or discovery. In that pleading [the petitioners] shall articulate their reasons to The petitioners next contend that DOT’s Vaughn “have leave to file a motion to extend the proceedings in order to engage in completed its review of the withheld materials in camera, the petitioners would 636 (2007). In its June 24, 2008 order, the court ordered that after it

unsustainable exercise of discretion. See Fortin, 133 N.H. at 160. consider the issue at that time, the petitioners have failed to show an court’s order on the merits. In addition, to the extent the trial court declined to an objection at the December 23, 2008 hearing, we note that was after the index for the court’s order on the merits. To the extent the petitioners raised preserved a timely objection to this document, which was the operative Vaughn index, which DOT filed in July 2008. The petitioners fail to identify where they 26, 2008. On June 24, 2008, the court ordered DOT to prepare a new Vaughn relates to the index of withheld and redacted documents filed by DOT on March DOT’s index of withheld and redacted documents. That pleading, however, petitioners respond that they raised the issue in their April 8, 2008 objection to that the petitioners have not preserved this issue for our review. The determine whether claimed exemptions or privileges applied. The State argues

document C. Upon review, we find no error. properly withheld or redacted with the exception of an e-mail string in subject to de novo review on appeal). The trial court found all of the materials court’s determination that a particular FOIA exemption applies is a legal ruling United States Dep’t of Agriculture, 626 F.3d 1113, 1116 (9th Cir. 2010) (district p. 16 Affirmed

cite ATV Watch appearance before the release [of documents] – just that one be retained.” They The petitioners argue that “[t]he law does not require that an attorney file an 2007, about “a potential lawsuit” and that he reviewed a draft of the petition. affidavit in which he averred that he was consulted as early as November 16, Cunningham prior to February 2008. They cite Attorney Cunningham’s DALIANIS, C.J., and DUGGAN and LYNN, JJ., concurred.

petitioners “incur[red] any obligation to pay for an attorney.” Emerson was “retained” for purposes of an award of attorney’s fees; namely, when the Attorney Cunningham’s affidavit, however, does not indicate when he The petitioners assert that they were represented by Attorney

finding. petitioners have failed to demonstrate that the record does not support that have not established grounds for assessment of counsel fees.” On appeal, the not awardable to “a pro and ATV Watch since that date.” The trial court ruled that the “petitioners Arthur Cunningham on March 5, 2008. We have held that attorney’s fees are he filed his appearance on March 5, 2008, “and ha[s] represented Mr. Walters February 2008, prior to the filing of an appearance in the case by Attorney N.H. at 632. Consultation notwithstanding, Cunningham’s affidavit states that would not have been released.” Those documents, however, were released in, 139 They argue, “It is apparent that had no petition been filed, the documents releases was for the ‘purpose of responding to allegations in your Petition.’” been inadvertently withheld, “the attorney general wrote that the reason for the public documents.” ATV Watch The petitioners note that in releasing three documents claimed to have, 155 N.H. at 442. attorney’s fees when retention of legal counsel is necessary to secure access to “indicates that the legislature intended for a petitioning party to recover

, in which we stated that the RTK law’s plain language

the documents to which [the petitioner] was entitled”). petitioner “was not represented by counsel until after [the agency] disclosed all Watch, 155 N.H. at 442 (attorney’s fees not awardable under RTK law when an attorney.” Emerson v. Town of Stratford, 139 N.H. 629, 632 (1995); cf. ATV

not obtain any documents as a result of this lawsuit.” I (Supp. 2010). The trial court found that the “[p]etitioner[s] in this case did Commissioner, N.H. Dep’t of Educ., 142 N.H. 246, 249 (1997); see RSA 91-A:8,