2011-550, Professional Fire Fighters of New Hampshire v. The New Hampshire Local Government Center

Molan, Milner & Krupski, PLLC

No. 2011-550 Merrimack

THE SUPREME COURT OF NEW HAMPSHIRE chapter 91-A. We affirm.

required to provide certain meeting minutes under the Right-to-Know Law, RSA

, of Concord (William C. Saturley

page is: http://www.courts.state.nh.us/supreme. defendant, The New Hampshire Local Government Center (LGC), was not a.m. on the morning of their release. The direct address of the court's home (PFFNH), appeals an order of the Superior Court (McNamara, J.) ruling that the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 LYNN, J. The plaintiff, Professional Fire Fighters of New Hampshire

Chandler on the brief), for the defendant. the brief and orally), and Nelson Kinder + Mosseau PC, of Manchester (Adam J. Preti Flaherty Beliveau and Pachios on

and orally), for the plaintiff.

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 p. 2 “which is a question of law that we review de Resolution of PFFNH’s argument requires us to interpret RSA 91-A:5, IV,

principles. under a straightforward application of settled attorney-client privilege 2011). The defendant argues that disclosure is not required in this instance

Riddle Spring Realty Co. v. State

representatives. adviser unless the protection is waived by the client or his legal

meeting that was required to be open to the public under RSA 91-A:2, I (Supp.

avoid disclosure. Hampton Police Assoc. v. Town of Hampton

permanently protected from disclosure by himself or by the legal

discussion between a government body and its counsel during the course of a attorney-client privilege survives when the minutes sought memorialize a The plaintiff argues that the trial court erred in concluding that the

proving whether information is confidential rests with the party seeking to information” is exempt from the general disclosure requirement. The burden of statute.” RSA 91-A:4, I (Supp. 2011). Under RSA 91-A:5, IV, “confidential that purpose, made in confidence by the client, are at his instance adviser in his capacity as such, the communications relating to Where legal advice of any kind is sought from a professional legal

objective of facilitating access to all public documents. Id Wigmore, Evidence §§ 2292, 2327-2329, at 554, 634-41 (McNaughten rev. within the exemption for confidential information. Society for Protection of, 107 N.H. 271, 273 (1966) (citing 8 J.

disagreed and denied the motion to compel. This appeal followed. RSA chapter 91-A, thereby defeating any claim of privilege. The superior court of LGC’s counsel occurred during meetings that were open to the public under

inspect . . . and to copy” all public records “except as otherwise prohibited by

(1975). The classic articulation of the privilege is as follows: information in order to best effectuate the statutory and constitutional N.H. Forests v. Water Supply & Pollution Control Comm’n, 115 N.H. 192, 194

(2011). Communications protected under the attorney-client privilege fall

redacted portions should have been released because the oral communications

The Right-to-Know Law guarantees “[e]very citizen . . . the right to

regarding the Right-to-Know Law with a view to providing the utmost Transp., 161 N.H. 746, 752 (2011) (quotation omitted). We resolve questions

meetings that occurred between 2000 and 2009. PFFNH argued that the PFFNH moved to compel LGC to produce the unredacted minutes of fourteen a claim of attorney-client privilege. Dissatisfied with the redacted records,

under RSA 91-A:4, I (2001 & Supp. 2011), but redacted certain portions under LGC produced the vast majority of the documents requested by PFFNH p. 3 Affirmed

entering into executive session – to ensure the communications were private.

were made in confidence

meeting, LGC was not required to take any further precautions – such as

touchstone is the speaker’s reasonable expectation that the communications

progressed differently. Thus, because no third persons were present at the counsel. Had members of the public been present, the conversation could have relied on the absence of public attendees to ask for the candid advice of

members of the public were present during the meetings. Because the ultimate necessary for the transmission of the communication.” State v. Stickney ensure the communications were private. PFFNH concedes, however, that no during the course of open meetings, and because LGC took no precautions to

the privilege, if no one hears the conversation.” LGC could have reasonably disclosure. Restatement (Third) of the Law Governing Lawyers DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

the rendition of professional legal services to the client or those reasonably

communications with counsel were made in confidence because they occurred PFFNH argues that LGC could not have reasonably expected that its

observed, “The fact that the meeting occurs in a public place does not destroy except a privileged person,” then the communication will be protected from the public under RSA 91-A:2, I, is of no import. As the superior court aptly

third persons other than those to whom disclosure is made in furtherance of A communication is “confidential” if it is “not intended to be disclosed to

(2000). facilitating the rendition of professional legal services to the client.” N.H. R. Ev. § 71, at 543 person from disclosing confidential communications made for the purpose of “reasonably believes that no one will learn the contents of the communication N.H. 232, 235 (2002); N.H.R. Ev. 502(a)(5). If the communicating person

information “relating to the representation of a client”). 502(b); accord N.H. R. Prof. Conduct 1.6(a) (prohibiting lawyers from revealing

that “[a] client has a privilege to refuse to disclose and to prevent any other 1961)). New Hampshire Rule of Evidence 502 embodies that rule, providing