2015-0366, New Hampshire Right to Life & a. v. Director, New Hampshire Charitable Trusts Unit & a.

Services (D HHS), collectively referred to as “the State,” to produce, under the Pharmacy), and the New Hampshire Department o f Health and Human Attorney General (AG), the New Hampshire Board of Pharmacy (Board of Director, Charitable Trusts Unit (CTU), the O ffice of the New Ha mpshire and denying in part their petition for an order requiring the defendants, the Pelletier, appeal orders by the Superior Court (Mangones, J.) granting in part BASSETT, J. The plaintiffs, New Hampshire Right to Life and Jackie

orally), for the defendants. Lynmari e Cusa c k, assistant attorney general, on the brief, and Ms. Yaple Joseph A. Foster, attorney general (Megan A. Yaple, attorney, and

brief and orally), for the plaintiff s. Wadleigh, Starr & Peters, PLLC, of Manchester (Michael J. Tierney on the

DIRECTOR, NEW HAMPSH IRE CHARITABLE TRUST S UNIT & a.

No. 2015 - 0366 Strafford

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, Concor d, 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 p. 2 22 as 2

RSA 91 - A:5 and RSA 318:30, I.” See RSA 91 - A:5 (Supp. p. 2 2015) (setting forth certain documents and withholding others as “exempt from disclosure under The State responded to this request on July 31, 2014, by producing

June 30 of each year. Appeal of N.H. Rig ht to Life, 166 N.H. at 310. Board of Pharmacy to renew its licenses, the terms of which run from July 1 to :51 - b. As a limited retail drug distributor, PPNNE must reapply annually to the DHHS. Appeal of N.H. Right to Life, 166 N.H. at 310; see RSA 318:4 p. 2 2, VII, years as a licensed limited retail drug distributor pursuant to a contract with VII,:51 - b (2015). PPNNE has operated in New Hampshire for a number of or received by the Board [of Pharmacy].” (Bolding omitted.) See RSA 318:42, New Hampshire clinics” and “any documents related to these clinics either sent [PPNNE’s] 2014 - 2015 [Limited Retail Drug Distributorship] licenses for its six The first request, sent on July 14, 2014, sought “copies of all of

Keene, Manchester, and West Lebanon. Right - to - Life, 778 F.3d at 46. care clinics in six New Hampshire municipalities — Claremont, Derry, Exeter, and abortions.” Ramelb, supra at 510. P PNNE operates reproductive health “medical services related to family planning, men and women’ s sexual health, Parenthood, 47 Val. U. L. Rev. 499, 510 ( p. 2 2013). Planned Parenthood provides Ramelb, Note, Public Health Care Funding: The Battle Over Planned Serv’s, 778 F.3d 43, 49 (1st Cir.), cert. denied, 136 S. Ct. 383 (2015); see also America (Planned Parenthood). See Right to Life v. Dept. of Health & Human non - profit organization affiliated with Planned Parenthood Federation of with a court), and not apparently disputed by the plaintiffs, PPNNE is a private, now moot. According to a declar ation (a sworn statement filed as a pleading parties agreed that any issues regarding a fourth Right - to - Know request are England (PPNNE) and/or its New Hampshire clinics. At oral argument, the for documents and materials related to Planned Parenthood of Northern New requests that the plaintiffs made of the State in July 2014 and September 2014 N.H. Right to Life, 166 N.H. 308, 310 (2014). At issue are three Right - to - Know taxpayer subsid ies, of medical clinics that provide abortion services.” Appeal of Hampshire non - profit organization opposed to government support, by The relevant facts follow. New Hampshire Right to Life “is a New

I. Background

remand. the trial court erred. We affirm in part, reverse in part, vacate in part, and deciding and in denying their associated requests for attorney’s fees and costs, Law. See RSA 91 - A:5, IV ( p. 2 201 p. 3 3). On appeal, the plaintiffs argue that in so determined that they were exempt from disclosure under the Right - to - Know upheld the State ’ s withholding or redactions of other doc uments because it 2015). The trial court ordered the State to produce certain documents, but responsive to the plaintiff s’ prior requests. See RSA ch. 91 - A (2013 & Supp. Right - to - Know Law, without redaction, all documents and other materials 3

combination of letters or numerals.” Black’s Law Dictionary 181 (10th ed. 2014). individual pages of a document in sequence, usu[ally] by numerals but sometimes by a A bates - stamp number is “[t]he identifying number or mark affixed to a document or to the 1

most of the State ’ s decisions to redact or withhold. This appeal followed. The ordered the State to produce certain documents and information, but uphel d infor mation withheld or redacted, and after holding a hearing, the trial court corresponding b ates - stamp n umbers. Following its in camera review of the corresponding “b ates - stamp” n umbers and the withheld documents with 1 plaintiffs a “Table of Contents,” listing the previously - produced documents with been withheld from disclosure. The State also provide d to the court and to the comprised those that had been produced to the plaintiffs and those that had three DVDs. The documents and materials provided to the trial court trial court for in camera review a pproximately 1,500 pages of documents and fees, and costs on October 20, 2014. Subsequently, the State provided to the The plaintiffs filed the within complaint for injunctive relief, attorney’s

certain monetary amounts. of the Joan G. Lovering H ealth Center (Feminist Health Center), it redacted produced some information, but, w ith regard to the 2010 financial statements financial information about certain reproductive health clinics. The State The third request, made on September 11, 2014, sought specified

IV. because they contained information exempt from disclosure under RSA 91 - A:5, informing the plaintiffs that other documents had been redacted or withheld second request on September 4, 2014, producing some documents and New Hampshire or in any other State.” The State responded to th e plaintiffs ’ zones, reproductive health center patient safety zones, RSA 1 p. 3 32:37 to 39 in and all documents in the possession of the [AG] regarding abortion clinic buffer July 10, 2014 and July 17, 2014 outside the Manchester clinic”; and (4) “[a]ny specific materials, including “DVDs containing security camera footage from possession of the [AG] regarding any reproductive health facility”; (3) certain and individuals representing such centers; (2) “[a]ny and all documents in the communications “by, from or regarding” certain reproductive health cent ers documents, e - mails, or any other form of documents,” that constitut e: (1) matter what form, including but not limited to, printed documents, electronic The second request, sent on July 28, 2014, sought “all documents, no

in this appeal. certain documents from disclosure pursuant to RSA p. 3 318:30, I, is not at issue the subject of a public disciplinary hearing”). The State’s decision to exempt discovered pursuant to such inve stigations “unless such information becomes the Right - to - Know Law, Board of Pharmacy investigations and information Know Law); see also RSA 318:30, I (2015) (exempting from disclosure, under categories of information that are exempt from disclosure under the Right - to - p. 4 4

possible public access to the actions, discussions and records of all public The purpose of the Right - to - Know Law “is to ensure both the greatest

isolation.” Id. (quotation omitted). interpret a statute in the con text of the overall statutory scheme and not in legislature did not see fit to include.” Id. (quotation omitted). “We also not consider what the legislature might have said or add language that the omitted). “We interpret legislative intent from the statute as written and will we ascribe the plain and ordinary meaning to the words used.” Id. (quotation whole.” Id. (quotation omitted). “When examining the language of a statute, legislature ’ s intent as expressed in the words of the statute considered as a 583, 587 (2015) (quotation omitted). “Thus, we are the final arbiter of the to - Know Law.” Caremark PCS Health v. N.H. Dep ’ t of Admi n. Serv s., 167 N.H. “The ordinary rules of statutory construction apply to our review of the Right - Resolution of this case requires that we interpret the Right - to - Know Law.

A. General Law and Standard of Review

II. Analysis

on appeal.”). Aubert v. Aubert, 129 N.H. p. 4 422, 428 (1987) (“Arguments not briefed are waived briefed th at issue, and, accordingly, we deem it to be waived on appeal. See and attorney - client privilege for unknown withheld documents, they have not January letter, the plaintiffs also object ed to the State ’ s claim of work product by bates - stamp number in their January 12, 2016 letter. Although, in their in this case is limited to t he DVDs and documents that the plaintiffs identi fied redacted versions of the documents and materials s o identified. Our analysis Thereafter, we ordered the superior court to transfer to this court the un -

P105 - 20 (documents related to the Feminist Health Center). P31 - 56 (license renewal applications filed with the Board of Pharmacy), and such offices in other states), W33 - 35 (correspondence regarding the DVDs), AG and clinic officials), W36 - 29 p. 4 4 (e - mail communications between AG and (declaration of Meagan Gallagher), W1475 - 76 (e - mail communications between Manchester office of PPNNE; and (2) documents bates - stamped W305 - 06 (1) three DVDs containing security footage of the area outside of the the documents and materials “at issue, ad dressed and argued in the Briefs”: disclosed. In a January 12, 2016 letter, t he plaintiffs identified the following as camera review, but which they assert should have been, and was not, stamp n umber, information that had been submitted to the trial court for in After this appeal was filed, we ordered the plainti ffs to identify, by b ates -

evidentiary hearing. appellate record. The record does not indicate whether the hearing was an parties have not provided a transcript of the trial court hearing as part of the p. 5 5

Apr. 21, 2016), ECF No. 8 6. Appeals. See Notice of Appeal, Mary Rose Reddy & a. v. Joseph Foster & a., No. 16 - 1432 (1st Cir. Apr. 1, 2016), ECF No. 83. The plaintiffs have appealed that decision to the First Circuit Court of and Order at 3 p. 5 5 - 36, Mary Rose Reddy & a. v. Joseph Foster & a., No. 1:14 - cv - 00299 - JL (D.N.H. plaintiffs’ complaint on the ground that they lacked standing to bring it. See Corrected Opinion On April 1, 2016, the Federal District Court for the District of New Hampshire dismissed the 2 Joseph Foster & a., No. 1:14 - cv - 002 99 - JL (D.N.H. July 7, 2014), ECF No. 1. 2 132:38 (2015). S ee Verified Complaint at 13 - 22, Mary Rose R eddy & a. v. § 1983 (2012) challenging the constitutionality, facially and as applied, of RSA related to a pending federal civil rights action brought pursuant to 42 U.S. C. The information that the State withheld on work product grounds is

B. Information Withheld as Attorney W ork Product

(2) if disclosed, would constitute an invasion of privacy. information that the State contended: (1) comprised attorney work product; or trial court mis applied RSA 91 - A: p. 5 5, IV when it upheld the State ’ s withholding of constitute invasion of privacy.” RSA 91 - A:5, IV. The plaintiffs contend that the comme rcial, or financial information. . . and other files whose disclosure would exempt from disclosure under t he Right - to - Know Law, including “confidential, At issue in this case is RSA 91 - A:5, which identifies materials that are

Endicott St. N., 163 N.H. at 660. interpretation and its application of law to undisputed facts de novo. 38 toward nondisclosure.” Id. at 649. We review the trial court’s statutory Right - to - Know Law, that entity bears a heavy burden to shift the balance “When a public entity seeks to avoid disclosure of material under the

omitted). competing interests involved.” Montenegro, 1 p. 6 62 N.H. at 64 p. 5 5 (quotation helpful, especially in understanding the necessary accommodation of the Such similar laws, because they are in pari materia, are “interpretatively (FOIA). 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 660 (2012). including federal interpretations of the federal Fr eedom of Information Act the decisions of other jurisdictions interpreting similar acts for guidance, interpret t he exemptions restrictively.” Id. (quotation omitted). We also look to omitted). “As a result, we broadly construe provisions favoring disclosure and constitutional objectives.” Caremark PCS Health, 167 N.H. at 587 (quotation providing the utmost information in order to best effectuate these statutory and records, we resolve questions regarding the Right - to - Know Law with a view to art. 8. “Although the statute does not provide for unrestricted access to public Montenegro v. City of Dover, 162 N.H. 641, 645 (2011); see N.H. CONST. pt. I, governmental proceedings and records shall not be unreasonably restricted.” “our state constitutio nal requirement that the public ’ s right of access to Caremark PCS Health, 167 N.H. at 587. Thus, the Right - to - Know Law furthers bodies, and their accou ntability to the people.” RSA 91 - A:1 (2013); see 6

Memorial Hosp., 148 F.R.D. 51, 53 (D.N.H. 1993) (same); Fed. R. Ev. 501. federal claims and pendent state law claims”); Smith v. Alice Peck Day federal question jurisdiction, courts usually app ly federal [privilege] law to the Health, Inc., 82 p. 6 6 F. Supp. 2d 323, 325 (D. Mass. 2011) (observing that “[w] ith plaintiffs are subject to the work product doctrine. See Gargiulo v. Baystate federal common law governs whether the documents challenged by the federal question jurisdiction. See Verified Complaint, supra at 3. Accordingly, Federal District Court for the District of New Hampshire under that court’ s In so doing, the trial court erred. The buffer zone litigation was pending in the whether the challenged documents were subject to the work product doctrine. The trial court applied New Hampshire common law to determine

product doctrine). FOIA to exempt from disclosure information subject to the attorney work information”); see also FTC v. Grolier Inc., 4 p. 6 62 U.S. 19, 23 (1983) (interpreting under the attorney - client privilege fall within the exemption for confidential Ctr., 163 N.H. 61 3, 614 - 15 (2012) (explaining that “[c] ommunications protected information. RSA 91 - A:5, IV; s ee Prof. Fire Fighters of N.H. v. N.H. Local Gov ’ t privilege, falls within the Right - to - Know Law exemption for “confidential” attorney work product, like communications protected by the attorney - client The parties do not dispute, and w e agree with the trial court, that

1. Summary of Work Product Law

other States (W3 p. 6 6 - 294). (W1475 - 76); and (3) e - mail messages between the AG and counterpart s in Dalia Vidunas, the Executiv e Director of the Concord Feminist Health Center Frizzell, Vice - President for Public Policy of PPNNE, and between the AG and (W305 - 06); (2) July 2014 e - mail messages between the AG and Jennifer President and Chief Executive Officer of PPNNE, (the Gallagher declaration) product: (1) a signed, undated draft declaration of Meagan Gal lagher, the following are exempt from disclosure becaus e they constitute attorney work The plaintiffs specifically challenge the trial court ’ s determination that

Complaint, supra at 1. plaintiff in this case, is also a plaintiff in the buffer zone litigation. See Verified took place because the litigation was stayed before it could be held. Pelletier, a preliminary injunction hearing in that litigation. However, the hearing never The documents and materials at issue were created in anticipation of a

litigation.” IV. For ease of reference, we refer to the federal litigation as the “buffer zone any portion of an entrance, exit, or driveway of” that facility. See RSA 132:38, way or sidewalk adjacent to” such a facility “within a radius up to 25 feet of health care facility, “[n] o person shall knowingly enter or remain on a public RSA 132:38, I, provides that, during the business hours of a reproductive p. 7 7

available at https://www.justice.gov/sites/default/files/oip/legacy/2014/0 p. 7 7/ Guide to the Free dom of Inf ormation Act, Exemption 5, at 3 (2013 ed.), from being used to circumvent civil discovery rules.” U.S. Dep ’ t of Justice, F.T.C., 18 F.3d 138, 146 (2d Cir. 1994). “This approach prevents. . . FOIA routine dis closure.” Id. at 27 (quotation omitted); see A. Michael’s Piano, Inc. v. absolute or qualified, a protected document cannot be said to be subject to exempt from disclosure under [FOIA]. Whether its immunity from discovery is translates into a discrete category of documents that Congress intended to difference whether a privilege is absolute or qualified in de termining how it the Supreme Court has explained, f or FOIA purposes, “[i]t makes little normally disclosed upon a showing of relevance.” Id. (quotation s omitted). As that is protected from discovery under a qualified privilege is not “routinely or relevance.” FTC, 462 U.S. at 26 (quotation s omitted). Necessarily, information documents would be routinely or normally disclosed upon a showing of This is so because the test for disclosure under FOIA “is whether the interpretations of the federal FOIA when construing the Right - to - Know Law). Endicott St. N., 163 N.H. at 660 (explaining that we look to federal “ordinary” work product is immaterial. See FTC, 462 U.S. at 26 - 27; 38 However, f or FOIA purposes, t he distinction between “o pinion” and

Hotel Fire Litigation, 859 F.2d at 1014; see Hickman, 329 U.S. at 511 - 13. ordinary work product “embrac[es] the residue.” In re San Juan Dupont Plaza mental impressions, conclusions, opinions or legal theories of an attorney,” and at 511 - 13. Opinion work product “encompass[es] materials that contain the Litigation, 859 F.2d 100 p. 7 7, 1014, 1015 (1st Cir. 1988); see Hickman, 329 U.S. produ ction of opinion work product.” In re San Juan Dupont Plaza Hotel Fire need and undue hardship, while requiring a hardier showing to justify the work product only a qualified immunity, subject to a showing of substantial work product and ‘ordinary’ work product,” and they “typically afford ordinary Outside the FOIA context, federal courts “distingu ish between ‘opinion’

States v. Nobles, 422 U.S. 22 5, 238 - 39 (19 p. 7 75). encompasses work done by non - lawyers at the direction of lawyers. United pro tected by a qualified privilege); see also Fed. R. Civ. P. 26(b)(3). The doctrine interviews conducted by oppo sing counsel in preparation for litigation are Hickman v. Taylor, 329 U.S. 4 9 5, 508 - 13 (1947) (declaring that witness State of Maine v. U.S. Dept. of Interior, 298 F.3d 60, 66 (1st Cir. 2002); see anticipation of, or d uring, litigation from disclosure to the opposing party.” The work product doctrine safeguards the work of an attorney done “in

of law to undisputed facts. 3 p. 8 8 Endicott St. N., 163 N.H. at 660. so in the first insta nce because we review de novo the trial court’s application Although the trial court did not apply federal common law in its analysis, we do rules that govern the buffer zone litigation, we apply federal common law. Right - to - Know Law is not used as a means of circumventing the civil discovery Thus, as a matter of comity with the federal court, and to ensure that the 8

litigation.” able to discover this [declaration] prior to its introduction into evidence in that noted that the plaintiffs in the buffer zone litigation “would likely not have been submission into evidence at a hearing in . . . pending litigation.” The court witness interview,” but, instead, was “essentially a draft pleading for that the declaration was “not merely a witness statement or notes from a strategy in the ongoing federal litigation.” The trial court further determined statements “in a draft pleading may provide insight into the [AG ’s] litigation those of the attorney who prepared the declaration, the inclusion of such redacted”). The trial court determined that, although the opinions were not strategy, such notes would fall within the work product doctrine and could be mental process, impressions of what the witness said, or reflecting trial also includes notes of the investigator or attorney recording his or her analysis, factual information should not be considered work product,” but “[i]f a report the context of a criminal case, that “[w]itness statements that contain purely and opinions.” See State v. Chagnon, 139 N.H. 671, 676 (1995) (explaining, in purely factual information,” it “also contains [Gallagher ’ s] policy statements subject to the work product doctrine because, although it “includes some Applying state law, t he trial cour t found that the Gallagher declaration is

attorneys at the Attorney General’s Office for use in the buffer zone litigation. appeal establishes that the declaration was prepared at the direction of with regard to creating buffer zones as authorized by statute. The record on Gallagher ’ s authority within PPNNE, and statements about PPNNE ’ s intentions interpretations of RSA 132:3 p. 8 8 (the buffer zone statute), statements about The Gallagher declaration contains factual assertions about PPNNE,

2. Gallagher Declaration

the Right - to - Know Law. Id. (quotations omitted). disclosed upon a showing of relevance,” they are exempt from disclosure under because documents protected by work product are not “routinely or normally showing of relevance.” FTC, 462 U.S. at 2 6 (quotation s omitted). Accordingly, whether the documents would be routinely or normally disclosed upon a Thus, we hold that the test for disclosure under the Right - to - Know Law “is Right - to - Know Law s h ould not be used to circumvent civil discovery rules. civil discovery rules. Indeed, at oral argument, the plaintiffs agreed that th e upon similar concerns that the Right - to - Know Law could be used to ci rcumvent We adopt this paradigm in the c ontext of the Right - to - Know Law based

FOIA that the Court h as “consistently rejected”). FOIA could be used to supplement civil discovery,” which is a construction of that is normally privileged” because this “would create an anomaly in that . . . p. 8 801 (1 p. 9 984) (explaining that a party cannot “obtain through . . . FOIA material 23/exemption5.pdf; see United States v. Weber Aircraft Corp., 465 U.S. 792, 9

F. Supp. 776, 781 (D. Conn. 1 p. 9 985) (ruling that, if a document is att orney work aff’d, 51 F.3d 1158 (3d Cir. 1995); United Technologies Corp. v. N.L.R.B., 632 “factual work - product materials are immune from disclosure” under FOIA), U.S. Dept. of Justice, 815 F. Supp. 798, 814 (D.N.J. 1993) (observing that notes because such documents constituted attorney work product); Manna v. mandate disclosure of signed witness statements or of attorney’s interview they cont ain purely factual information and concluding that FOIA did not exemption for attorney work product protects documents regardless of whether Counsel, MS P B, 819 F.2d 1181, 118 7 (D.C. Cir. 1987) (ruling that FOIA disclosed in private litigation” (quotations omitted)); Martin v. Office of Special need, under FOIA, “the test is whether information w ould routinely be product” may be discovered in non - FOIA cases upon a showing of substantial that “[a]lthough factual materials falling within the scope of attorney work mandate disclosure. See A. Michael’s Piano, Inc., 18 F.3d at 146 (explaining procedure upon a showing of substantial need, the Right - to - Know Law does not work product, and, therefore, would be discoverable under federal rules of civil Moreover, even if the Gallagher declaration constitutes only “ordinary”

privilege often will be embraced within the privilege”). that “factual material contained within a document subject to the work product Intern. v. U.S. Dept. of Justice, 30 F.3d 224, 237 n.20 (1st Cir. 1 p. 9 994) (noting product doctrine protects factual material); see also Church of Scientology v. F.A.A., 993 F.2d 570, 576 (6th Cir. 1993) (acknowledging that the work work product doctrine encompasses purely factual information. See Norwood contains some “purely factual information.” Fed eral courts have held that t he exempt from disclosure under the Right - to - Know Law, even though it arguably Contrary to the plaintiffs’ assertions, the entire Gallagher declaration is

Law. See FTC, 462 U.S. at 26 - 27; see also Doyle, 163 N.H. at 222. declaration was properly withheld from disclosure under the Right - to - Know product doctrine. We, therefore, agree with the trial court that the Gallagher as the trial court reached — the Gallagher declaration is subject to the work federal law and the trial court applied state law, we reach the same concl usion non - attorneys at an attorney’s direction). Accordingly, although we apply 3 p. 9 9 (determining that the work product doctrine protects documents drafted by Plaza Hotel Fire Litigation, 859 F.2d at p. 10 1016; see also Nobles, 422 U.S. at 238 and, as such, constitutes attorney work product. See In re San Juan Dupont attorneys at the A ttorney General’s O ffice for use in the buffer zone litigation decision” (quotation omitted)). The declaration was prepared at the direction of mistaken grounds, we will affirm if val id alternative grounds support the (acknowledging that when “the trial court reaches the correct result on Comm ’r, N.H. Dep’t of Resources & Economic Dev., 163 N.H. 215, 222 (2012) that i t is exempt from disclosure under the Right - to - Know Law. See Doyle v. product doctrine under federal law, and, therefore, agree with the trial court We conclude that the Gallagher declaration is subject to the work 10

exempt from disclosure”). subject to the work product privilege often will be embraced within the privilege, and thu s be Intern., 30 F.3d at 237 n.20 (explaining that “factual ma terial contained within a document Inc., 18 F.3d at 146, and Martin, 819 F.2d at 1186, with approval. See Church of Scientology Although the First Circuit has not ruled directly upon this issue, it has cited A. Michael’s Piano, 3

a case then pending before the United States Supreme Court: McCullen v. and offices of attorneys general in other States, were created in connection with The e - mail messages at issue, which were exchanged between the AG

General in O ther S tates 4. E - mail messages to and from AG and Offices of Attorneys

messages were also subject to the attorney - client privilege. at 238 - 39. Given our conclusion, we need not addr ess whether t he e - mail work product, and, i n this context, no “waiver” occurred. See Nobles, 422 U.S. pleadings for that litigation. The e - mail messages, thus, constituted attorney at their direction. The subject of the e - mail messages was the preparation of the buffer zone litigation either by attorneys at the Attorney General’s Office or the buffer zone litigation. We disagree. The e - mail messages were created for were communications between the AG and individuals who are not parties to constitute attorney work product, “any privilege [was] waived” because they c onstitute attorney work product. The plaintiffs contend that, even if they do The plaintiffs conclude, without any analysis, that the messages do not

privilege and/or because they constituted attorney work product. were properly withheld because they were subject to the attorney - client affidavit of another individual. The trial court found that the e - mail messages AG and Vidunas concerned the preparation, for the buffer zone litigation, of an the preparation of the Gallagher declaration. The e - mail messages between the The July 2014 e - mail messages between the AG and Frizzell concerned

3. E - mail messages to and from Frizzell and Vidunas

attorneys). doctrine extends to work performed by non - attorneys at the direction of doctrine. See Nobles, 422 U.S. at 238 - 39 (explaining that the work product defendants. In this context, there was no “waiver” of the work product party in the buffer zone litigation, the attorney genera l was one of the declaration at the direction of the AG. Moreover, although PPNNE was not a in the federal litigation. As previously discusse d, however, PPNNE prepared the “shared” the Gallagher declaration with the AG, which did not represent PPNNE The plaintiffs further assert that any privilege was waived when PPNNE

even though it contains non - privileged factual material). 3 product, then the entire document is privileged from disclosure under FOIA, p. 11 11

mandates disclosure. Id. Whether information is exempt from disclosure the disclosure. I d. If no privacy interest is at stake, the Right - to - Know Law First, we evaluate whether there is a privacy interest that would be invaded by of public records constitutes an invasion of privacy under RSA 91 - A:5, IV. I d. We engage in a three - step analysis when considering whether disclosure

152 N.H. 106, 109 (2005) (quotation omitted). individual ’ s privacy need not be disclosed.” Lamy v. N.H. Public Util s. Com m’n, information and personnel files and other information necessary to an RSA 91 - A:5, IV. This section of the Right - to - Know Law “means that financial from disclosure “files whose discl osure would constitute invasion of privacy.” information on privacy grounds. The Right - to - Know Law specifically exempts The plaintiffs next assert that the State wrongfully withheld certain

C. Information Withheld on Privacy Grounds

communications. we need not address whether they also constitute privileged at torney - client Having decided that these e - mail messages constitute attorney work product, the documents they referenced, from the plaintiffs in the buffer zone litigation. such offices in other states was inconsisten t with keeping those messages, and us, we cannot say that the exchange of e - mail messages between the AG and Technology, 129 F.3d 681, 687 (1st Cir. 1997). Based upon the record before and ellips is omitted); see United States v. Massachusetts Institute of 10 – cv – 393 – LM, 2012 WL 2891099, at *3 (D.N.H. July 16, 2012) (quotation s an adversary waives work product protection.” Bourne v. Arruda, Civil No. adversaries, only disclosing material in a way inconsistent with keeping it from prevailing rule is that, because work product protection is provided against States in filing an amicus brief” in the McCullen litigation, we disagree. “The was waived because “the state of New Hampshire did not ultimately join other To the extent that the plaintiffs argue that any work product privilege

under the Right - to - Know Law. constitute opinion work product, and were properly withheld from disclosure 5 p. 11 11 - 13, in connection with the McCullen litigation, we hold that they Litigation, 859 F.2d at 1014 (quot ation omitted); see Hickman, 329 U.S. at or legal theories of an attorney,” In re San Juan Dupont Plaza Hotel Fire these e - mail messages contain the “mental impressions, conclusions, opinions and/o r privileged attorney - client communications. RSA 91 - A:5, IV. Because as “confidential” information because they constituted attorney work product The trial court found that these e - mail messages were properly withheld

whether to join or file amicus brief s in that case. briefs prepared for McCullen and concern the process by which the AG decided Coakley, 134 S. Ct. 2518 (2014). The e - mail messages include draft amicus p. 12 12

DVDs (W33 - 35); (3) the names of employees contained in license renewal following on privacy grounds: (1) three DVDs; (2) correspo ndence regarding the The plaintiffs specifically challenge the State ’ s decision to withhold the

Lamy, 152 N.H. at 109 (quotation omitted). public ’ s interest in disclosure and the interests in nondisclosure de novo.” Id. When the facts are undisputed, “we review the trial court ’ s balancing of the valid privacy interest, on balance, outweighs the public interest in disclosure.” records sought will not inform the public” about the State ’ s a ctivities, “or that a this case, our review focuses up on whether the State “has shown that th e toward nondisclosure.” N.H. Civil Liberties Union, 149 N.H. at 440. Thus, in “The party resisting disclosure bears a heavy burden to shift the balance

N. H. at 111 (quotation omitted). prefer, albeit for other reasons, that the information be released.” Lamy, 152 disclosure will not be warranted even though the public may nonetheless (same under FOIA). “If disclosing the informatio n does not serve this purpose, see U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 774 (1989) the Government be so disclosed.” Lamy, 152 N.H. at 113 (quotation omitted); that information about private citizens that happens to be in the warehouse of the Government’s activities be o pened to the sharp eye of public scrutiny, not omitted)). “[T] he central purpose of the Right - to - Know Law i s to ensure that citizens know what their government is up to” (quotations and brackets shed light on an agency’ s perf ormance of its statutory duties or otherwise let analysis [is] the extent to which disclosure o f the information sought would (explaining that “t he only relevant public interest in the FOIA balancing grounds); see Department of Defense v. FLRA, 510 U.S. 487, 497 (1994) U.S. 73, 105 (1973) (Douglas, J., dissenting), superseded by statute on other Corp. v. City of Nashua, 141 N.H. 473, 476 (1996) (quoting EPA v. Mink, 410 information to the public about what its “government is up to.” Union Leader T he pu rpose of the Right - to - Know Law is to provide the utmost

440 (2003) (quotation and ellipsis omitted). to - Know Law.” N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, the requested document and its relationship to the basic purpose of the Right disclosure would constitute an invas ion of privacy, we examine the nature of nondisclosure. Id. “When the exemption is claimed on the ground that government interest in nondisclosure and the individual ’ s privacy interest in Finally, we balance the public interest in disclosure against the

activities of their government. Id. requested information should inform the public about the conduct and Next, we assess the public ’ s interest in disclosure. Id. Disclosure of the

subjective expectations. Id. because it is private is judged b y an objective standard and not by a party’s p. 13 13

minor or nonexistent public interest.” individual[s] seeking treatment” from PPNNE substantially outweighed “this Accordingly, the trial court determined that “[t]he pri vacy interest[s] of activities and conduct” of the AG or of any other governmental entity. could not “discern how the contents of th[e] DVDs would shed light on the interest in the disclosur e of the DVD footage.” The trial court stated that it The trial court f urther f ound that there was no “sufficient specific public

treatment.” interest in the health care providers from whom they choose to seek fo und t hat the PPNNE patients and clients shown on the DVDs “have a privacy privacy interest at stake — the identity of [PPNNE] patients and clients.” It also the videos.” The trial court found that the State had articulated “a valid disclosure based on concerns for the personal privacy of individuals depicted in The trial court concluded that “the DVDs should be protected from

do not show the building entrance. vehicles are visible. The DVDs show only the entrance to the parking lot. They lot or adjacent to the l ot. The license pl ates of some, but not all, of th o se The DVDs also show vehicles that are entering, exiting, or park e d in the

ascertainable from the DVD footage are the protestors. is not obvious. The only individuals whose relationship to PPNNE is readily into the parking lot, however, the nature of their connection to PPNNE, if any, apparent connection to PPNNE. Occasionally, individuals are shown walking The DVDs also show passersby walking on the sidewalk who have no

sidewalk on which the protestors are shown walking. The building entrance is on the opposite side of the parking lot from the DVDs do not show protestors in the parking lot or near the building entrance. The protestors are shown walking on the sidewalk next to the parking lot. The and are not seen on camera. T he parking lot is partially bordered by a fence. protestors are shown talking to individua ls, who appear to be in the parking lot each day. The DVDs show individual protestors walking on the sidewalk. The PPNNE parking lot on July 10, 2014, and July 17, 2014, for a few hours on The DVDs show three different views of the sidewalk adjacent to the

PPNNE in connection with the buffer zone litigation. Manchester office of PPNNE. According to the State, it obtained the DVDs from The DVDs contain footage from several security cameras at the

1. DVDs

contained in documents from the Feminist Health Center (P105 - 20). applications f iled with the Board of Pharmacy (P31 - 56); and (4) information p. 14 14

privacy interest in wha t can be seen from a public sidewalk.” omitted). We, thus, disagree with the plaintiffs who assert that “[t]here is no of the information.” Reporters Committee, 489 U.S. at 770 (quotations mean that an individual has no interest in limiting disclosure or dissemination from a public sidewalk, “the fact that an event is not wholly private does not available in the ordinary course of daily life”). Although the DVDs show views captured up close and over a prolonged period of time, [which] are not generally interest in their videotaped images because they revealed “p ersonal details, in a federal highway administration study had more than a de minimis privacy Highway Admin., 818 F. Supp. 2d 122, 129 (D.D.C. 2011) (holding that drivers footage. See Lamy, 152 N.H. at 110; see also Advocates for Highway v. Federal shown, on the DVDs have a privacy interest in controlling access to the DVD Here, the non - protesting individuals shown, or whose vehicles are

public”). even though events summarized therein “have been previously disclosed to the privacy interest in maintaining the practical obscurity of his or her “rap sheet” Committee, 489 U.S at 762, 771 (holding that a n individual has a substantial as telephone directories and voter registration lists”); see also Reporters addresses even though they “often are publicly available through sources such see FLRA, 510 U.S. at 500 (finding privacy interest in federal employees’ home though such information is “often publicly available.” Lamy, 152 N.H. at 110; privacy interest in controlling access to their names and home addresses, even that residential customers of Public Service Company of New Hampshire had a Committee, 489 U.S. at 762 (quotation omitted). Thus, in Lamy, we recognized information that may be publicly available, but di fficult to obtain. Reporters referred to this as an interest in retaining the “practical obscurity” of private 879 F.2d 873, 875 (D.C. Cir. 1989). The United States Supreme Court has 110 (quotation omitted); see National Ass’n of Retired Federal Emp. v. Horner, the disclosure of their own identities and whereabouts.” Lamy, 152 N.H. at “In our society, individuals generally have a large measure of control over

further proceedings consistent with this opinion. order upholding the State’s decision to withhold the DVDs and remand for non disclosure of the DVD footage. Accordingly, we vacate the trial court’s whether those individuals have a heightened privacy interest at stake in the However, absent furthe r fact - finding by the trial court, we cannot determine notoriety in order to highlight and publicize their position against abortion”). constitute an unwarranted invasion of privacy because “[t]hese individuals seek of police department photos of members of “Operation Rescue” would not v. Town Bd., 587 N.Y.S.2d 461, 463 (Sup. Ct. 1992) (concluding that disclosure dissemina tion of the DVD footage. See i d. at 110; see also Planned Parenthood shown, on the DVDs have a t least some privacy interest in controlling the conclude that the non - protesting individuals show n, or whose vehicles are We begin by assessing whether there is a privacy interest at stake. We p. 15 15

given an opportunity to opt out of the disclosure). contact the drivers and be cause individuals with low - digit license plates were the plaintiff had been ordered not to publish or disclose the information or to license plates did not constitute an unwarranted invasion of privacy because trial court that disclosing the names and home towns of drivers with low - digit State of N.H., 149 N.H. 674, 675 - 79 (2003) (upholding the determination by the individuals shown, or whose vehicles are shown, on the DVDs. Cf. DeVere v. disclosure without compromising the privacy interests of the non - protesting trial court should require the redaction of the DVD footage so as to allow its proper. In those additional proceedings, the parties may address whether the for additional fact - finding and any further proceedings the trial court deems court’s order upholding the State’s decision to wi thhold the DVDs and remand the Right - to - Know Law mandates disclosure”). Rather, we vacate the trial nondisclosure. See id. at 109 - 10 (explaining that “[a]bsent a privacy interest, the DVDs and, if so, t o bala nce that interest against the privacy interests in premature for us to analyze whether there is a public interest in disclosure of to be given to the privacy interests at stake. Accordingly, it would be DV Ds implicate heightened privacy concern s. Nor can we determine the weight license plates are shown, on the DVDs, we cannot assess whether, in fact, the A bsent additional information about the individuals shown, or whose

addresses). utility have a privacy interest in the nondisclosure of their names and Lamy, p. 15 152 N.H. at 109 (analyzing whether the business customers of a public disclosure of the DVDs does not implicate heightened privacy concerns. See 2012). On the other hand, if those vehicles belong to PPNNE vendors, then Sensor Systems Suppor t, Inc. v. F.A.A., 851 F. Supp. 2d 321, 333 (D.N.H. then disclosure of the DVDs could subject the e m ployees to harassment. See privacy” (quotations omitted)). If th ose vehicles belong to PPNNE employees, “intimate details,” such a disclosure does not “constitute an invasion of disclosure of the salaries of public school teachers is not a disclos ure of 112 N.H. p. 16 160, 164 (1972) (ruling that, in light of the legislature’s finding that the fact that they sought medical treatment”); cf. Mans v. Lebanon School Bd., admission records “have a substantial privacy interest in avoiding disclosure of F. Supp. 2d 94, 96 (D.D.C. 2008) (ruling that the patients listed in hospital treatment at PPNNE. See National Sec. News Service v. U.S. Dept. of Navy, 584 reveals an intimate detail about the ir lives — namely, that they sought medical those vehicles belong to PPNNE patients, then the disclosure of the DVDs parked in, or near, the parking lot of a reproductive health care facility. If FOIA”). The vehicles with visible license plates are shown entering, exiting, constitute “a clearly unwarranted invasion of privacy as contemplated by license plate number “without any context or private information” does not PJG, 2011 WL 704510, at *4 n.5 (D.S.C. Jan. 24, 2011) (observing that a privacy interests. See Jones v. U.S. Dept. of Justice, C/A No. 0:09 – 2802 – RBH – similarly not dispositive of whether disclosure of the DVD footage implicates The fact that vehicle license plate numbers are publicly displayed is 16

#1,” and “Licensed Pharmacist #2,” respectively. licensed pharmacist are identified as “Medical Director #2,” “Registered Nurse nurse, or consultant pharmacist. The medical director, registered nurse, and manager but does not include the name of the medical director, registered The Feminist Health Center application includes the name of the s ite

individuals worked at more than o ne reproductive health care facility. corresponding number designation so that the plaintiffs could identify whether as “Medical Director” or “Licensed Pharmacist,” or the name “John Doe,” and a consultant pharma cists. In place of names, the State has inserted titles, such redacted the names of PPNNE’s site managers, medical directors, and On each of the PPNNE license renewal applications, the State has

signed by the center’s executive director. Chief Financial Officer of PPNNE; the Feminist Health Center application is perjury, of the responsible party. The PPNNE applications are signed by the provided at the particular clinic. It requires the signature, under penalties of person in charge of drug purchasing, drug dispensing records, and the security address and telephone number of its medical director, the job title of t he administer or dispense non - controlled drugs, its hours of operation, the transmitted disease prevention or some other specialty, whether it proposes to and fax numbers, whether the clinic’s “specialty” is family planning or sexually Each application lists the name and location of the clinic, its telephone

distribute medication witho ut a pharmacist on site. office of the Feminist Health Center. Such licenses allow the clinics to Keene, Manchester, and West Lebanon offices of PPNNE and the Greenland period, filed with the Board of Pharmacy by the Claremont, Derry, Exeter, drug distributor licenses for the July 1, 2014 to June 30, 2015 licensing The documents at issue are applications for the renewal of limited retail

3. Individual s’ Names on Licensing Documents

Firefighters of N.H. v. Local Gov ’ t Ctr., 159 N.H. 699, 707 (2010). is at stake, then the Right - to - Know Law mandates disclosure.” Prof ’ l Accordingly, it was not properly withheld on that basis. “If no privacy interest State does not argue that the correspondence implicates any privacy concerns. DVDs themselves. We conclude that, in so ruling, the trial court erred. The that this correspondence was properly withheld for the same reasons as the demonstrating that the envelope contained the DVDs. The trial court ruled addressed to the AG from a Concord law firm and pieces of mostly blank paper The correspondence about the DVDs consists of an undated envelope

2. Correspondence About the DVDs p. 17 17

“a ttenuated,” the court determined that disclosure of individual employee and interest was “substantial” and the public interest in disclosure was agencies are enforcing RSA 318:42, VII.” Because it found that the privacy Pharmacy’s] or. . . DHHS’s operations except with respect to how these may not be paid with state fundi ng would shed light on the [Board of not articulated how knowing the identities of particular employees who may or [PPNNE] salaries are being paid by . . . state grant funds, [the plaintiffs have] identities of emp loyees.” The trial court found that “[e]ven assuming that some determined that there was only “an attenuated public interest in the specific int erest” was “not negated by [the plai ntiffs’] arguments.” The trial court then “in their identities and safety.” The court concluded that “[t]his privacy found that the individuals whose names are redacted have a privacy intere st Like the court in the prior state litigation, the trial court in this case

This decision was not appealed. employees labeled appropriate ly as John Doe 1, John Doe 2, Jane Doe 1, etc.” it ordered the State to “provide copies of [those] applications with said for renewed licenses to distribute medication without a pharmacist on site, but medi cal directors, and consultant pharmacists listed in PPNNE’s applications Accordingly, the court denied the request for the names of site managers, has ceased receiving Federal subsidies beginning January 1, 2013.” court noted that “PPNNE has not received any State subsidies since 2011 and knowing “how PPNNE spends the tax money it receives through subsidies,” the of Pharmacy. In response to the assertion that the public had an interest in only provides . . . limited information” with regard to the activities of the Board “[d]isclosing the names of the employees and independent contractors at issue With respect to the public interest in disclosure, the court concluded that

safety concerns.” identities could result in harassment, from any member of the public, and/or interest in their id entities.” The court observed that the “release of their pharmacists, and medical directors,” because such individuals “have a privacy the disclosure of the identities of PPNNE’s site managers, consultant had “met its burden to demonstrate that there is a privacy interest at stake in privacy reasons. T he Superior Court (McNamara, J.) concluded that th e State Claremont, Derry, Exeter, Keene, and Manchester locations redacted for PPNNE’s site managers, medical directors, and consultant pharmacists for its provided copies of PPNNE’s license renewal applications with the names of litigation, in response to requests under the Right - to - Know Law, the State to Life and the Board of Pharmacy. In that litigation, as in the instant the subject of prior s tate court litigation between plaintiff New Hampshire Right The 2012 - 20 13 renewal applications submitted by PPNNE locations were

March 2013 regarding a “Pro - life Protest Event” in which “somewhere between safety.” To the contrary, t he record includes a police incident report from finding that the clinic employees ha ve a privacy interest in their “identities and The plaintiffs argue that the record does not support the trial court’s

F.3d 141, 153 (D.C. Cir. 2006). at 77 (quotation omitted); see Judicial Watch, Inc. v. Food & Drug Admin., 449 addresses in connecti on with financial in formation.” Bigwood, 484 F. Supp. 2d than in the accepted privacy interest in the nondisclosure of their names and “individuals have an even s tronger privacy interest in avoiding physical danger (quotations and ellipsis omitted)). Indeed, as one court has observed, individual in avoiding the unlimited disclosure of his or her name is significant” names contained in hospital admission records, “the privacy interest of an 584 F. Supp. 2d at 96 (ruling that, in the context of a request for individual U.S. 157, 171 (2004) (citing Lesar with approval); Nat ional Sec. News Servi ce, (quotation omitted)); cf. National Archives and Records Admin. v. Favish, 541 interest in the withholding” of information t hat would identify him publicly (concluding that “a person avoiding harm to his li fe or liberty has a clear U.S. Agency for In tern. Develop ment, 484 F. Supp. 2d 68, 77 (D.D.C. 2007) annoyance or harassment in either their official or private lives”); Bigwood v. names because publicly identifying them “conceivably could subject them to Martin Luther King, Jr. have a privacy interest in the nondisclosure of their (D.C. Cir. 1980) (FBI agents and informants involved in investigating Dr. omi tted); see also Lesar v. U nited States Dept. of Justice, 636 F.2d 472, 487 conduct of their official duties and in their private lives.” Id. (quotations conceivably subject” those identified to “harassment and annoyance in the at 333. One such circumstance is when public identification “could protect that privacy interest.” Sensor Sys tems Support, Inc., 851 F. Supp. 2d in their identities, and information identifying individuals may be withheld to “Under some circumstances, individuals retain a strong privacy interest

independent contractors of the reproductive health care facilities. have a privacy interest in the nondisclosure of their identities as employees or We agree with the trial court that individuals whose names were redacted

according to law.” which [the Board of Pharmacy] is approving [license r enewal] applications designation (e.g., M.D. or R.N.) would suffice to demonstrate the extent to application,” the court decided that “disclosure of such persons’ professional identify its consultant pharmacis t and medical director on the [license renewal] However, because “regulatory requirements . . . specify that a clinic must independent contractor names is not required by the Right - to - Know Law. p. 19 19

names were redacted “have been publicly disclosed by the clinics th emselves” The plaintiffs assert that because the identities of the individuals whose

child of the landlord of a surgical abortion facility” (quotation omitted)). incident in which a nti - abortion protestors appeared “at the middle school of a abortion services” and facts regarding events in Maryland, including an violence that is associated too frequently with a career in providing surgical evidence presented” where affidavit “presented facts regarding the history of (finding that the “risk of violence is not speculative and is based on th e ample identities and safety is based upon mere speculation. See id. at 252 - 53 court’s finding that the individuals at issue have a privacy interest in their Glenn, 132 A.3d at 253, we cannot agree with the plaintiffs that the trial harassment and violence associated with the provision of abortion services,” Concord Feminist Health Center and evidence of “the history nationally of Given evi dence of the protests at the Manchester PPNNE office and the

Florida. described some of the more recent examples of such conduct in Arizona and harassment, and sometimes physical violence, including murder,” and that the incidents at PPNNE “are part of a larger pattern of threats, employees “would go to hell.” (Quotation omitted). The declaration averred “baby killing,” and, while pointing at a PPNNE staff member, stated that PPNNE another, an activist entered a PPNNE clinic, asked to speak to someone about protestors took photographs a nd video recordings of staff and patients.” In and/or harassment of PPNNE employees.” In one incident, “anti - abortion operations for PPNNE describing “a series of recent incidents involving threats record includes a 2013 declaration from the director of health center business es” associated with the approval of an abortion - related drug). The violence as a privacy interest for both the names and addresses of persons and Inc., 449 F.3d at 153 (holding that the agency “fairly asserted abortion - related Health and Mental Hygiene, 132 A.3d 245, 251 (Md. 20 16); see Judicial Watch, with the provision of [such] services is undeniable.” Glenn v. Maryland Dept. of Moreover, as one court has recognized, the “history of violence associated

threatened.” Laws p. 20 2014, 81:1. employees of these facilities to believe that their safety and right to privacy are outside of reproductive health care facilities have caused patients and 2014, the New Hampshire L egislature found that “[r]ecent demonstrations Concord Feminist Health Center.” When it passed the buffer zone statute in supporters from across the state . . . marched down Main Street past the Right to Life’s 2015 “March for Life” in Concord, in which “hundreds of plaintiffs’ own exhibits include a newspaper article regarding New Hampshire “somewhat obstructed by [a] circulating group of protest e r[s].” Additionally, the perimeter of the office was “congested” and that the employee entrance was office. (Bolding omitted.) The report indicates that the sidewalk around the 150 and 200” individuals protested at the entrance to PPNNE’s Manchester 20

N.H. at 709. That reliance is misplaced. support these assertions, the plaintiffs rely upon Professional Firefighters, 159 prejudice and favoritism” at the Board of Pharmacy. (Quotation omitted.) To public to discover whether there is “corruption, incom petence, inefficiency, clinics and “whose salary is being paid by taxpayer funds,” and to allow the the license renewal applications is necessary to show “who is running” the The plaintiffs also asse rt that disclosure of the names of individuals on

are met. further the public interest in assuring that the requi rements of RSA 318:42, VII directors, and consultant pharmacists at each of the six clinics does not 318:42, VII (d). Disclosure of the names of PPNNE’s site managers, medical clinic “possesses a current limited re tail drug distributor’s license.” RSA prescription drugs provided that certain conditions are met, including that the planning agencies under contract with [DHHS]” to dispense non - controlled RSA 318:42, VII allows registered nurses “in clinics of no nprofit family

We agree. [Board of Pharmacy] is approving [licensing] applications according to the law.” licensing designation is sufficient to demonstrate the extent to which the The trial court concluded that “disclosure of s uch persons’ professional or public whether the Board of Pharmacy is properly applying RSA 318:42(VII).” Pharmacy to dispense prescription drugs without a pharmacist will inform the identities of the individuals being granted an exemption by the Board of the individuals at issue is attenuated at best. The plaintiffs argue that “the We also agree with the trial court that the public interest in the names of

simply because that information may be available to the public in some form”). the dissemination of information regarding personal matters does not dissolve FLRA, 510 U.S. at 500 (explaining that “[a]n individual’s interest in controlling interest.” Moffat v. U.S. Dept. of Justice, 71 6 F.3d 244, 251 (1st Cir. p. 20 2013); see revelations of exempt information do not destroy an individual’s privacy individuals at issue had been previously made available to the public, “prior e ngland (last visited May 4, 2016). More importantly, even if the names of the https://www.plannedparenthood.org/planned - parenthood - northern - new - Planned Parenthood of Northern New England, identified on PPNNE’s website or in other publicly - disclosed materials.” See and staf f names, is not public record,” and “[p]roviders and staff are not health center operations for PPNNE, “employee information, including provider were redacted on the documents at issue. Further, according to the director of the record do not include the names of any of the individuals whose names support the plaintiffs’ underlying factual assertion. The articl es contained in the clinics and their employees. H owever, the record on appeal does not in newspaper articles, the “State cannot assert a privacy interest” on behalf of p. 21 21

Cir.), cert. denied, 136 S. Ct. 383 (2015). & Human Svcs., 976 F. Supp. 2d 43, 64 (D.N.H. 2013), aff’d, 778 F.3d 43 (1st Government impropriety might have occurred”); Right to Life v. Dept. of Health that would warrant a belief by a reasonable person that the alleged to show that an agency acted negligently, requester must produce “evidence see also Favish, 541 U.S. at 174 (concluding that when information is sought we conclude that disclosure is not required by the Right - to - Know Law. S ee id.; nondisclosure that outweighs such a negligible and speculative public interest, and because PPNNE employees have a cognizable privacy interest in assessment” of the Board of Pharmacy’ s performance, Lamy 152 N.H. at 113, is, at best, attenuated and is based upon the plaintiffs’ “hypothetical Because the public interest in disclosing the names of PPNNE employees

in the names of PPNNE employees is attenuated. government and its activities. See id. Therefore, a ny asserted public interest of the individual employee names in this case would reveal nothing about the whose names were redacted. In contrast to Professional Firefighters, disclosure not demonstrate that State funds pay the salaries of any of the employees funds. Prof’l Firefighters of N.H., 159 N.H. at 709. M oreover, the record does the record that PPNNE, like LGC, receives the “bulk” of its income from public like LGC. See Right to Life, 778 F.3d at 49. In addition, there i s no evidence in PPNNE is a private, non - profit organization, not a governmental entity

public body, administering public funds). in the administration” of the New Hampshire Retirement System, which is a in knowing how public funds are spent and in uncovering corruption and error required by the Right - to - Know Law because “[t]he public has an interest both disclosure of records related to the retirement benefits of public employees is Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 684 (2011) (holding that is spending taxpayer money in conducting public business.” Id.; see Union Public access to the salary information allowed scrutiny of “how a public body served “the very purpose underlying the Right - to - Know Law.” Id. at 709. comes from public funds, public access to the requested information directly because LGC is a government al e ntity and because “the bulk of [its] income” outweighed the public interest in disclosure. Id. at 707 - 10. We explained that, rejected LGC’s assertion that the employees’ privacy interest in nondisclosure entity itself is subject to the Right - to - Know Law.” Id. at 706 - 07. We also “[w]hether records are subject to public disclosure depends upon whether the were private, and not public, employees, we disagreed, explaining that the Right - to - Know Law.” Id. at 709. Although LGC argued that its employees 159 N.H. at 702. LGC conceded that it was “a government al entity subject to disclose the names and salaries of its employees. Prof ’ l Firefighters of N.H., Know Law, the Local Government Center, Inc. (LGC) could be compelled to At issue in Professional Firefighters was whether, under the Right - to - p. 22 22

exempt from disclosure under the Right - to - Know Law. has met its heavy burden of demonstrating that the financial information is and the relatively weak public interest in disclosure, we conclude that the State money was spent. Given the center’s strong privacy interest in nondis closure As the trial court found, the documents do not demonstrate how S tate grant We find no error in the trial court’s interpretation of the financial documents. the conduct of the clinic, not any government cond uct.” (Quotation omitted.) the trial court erred when it held that the financial documents “primarily show With regard to the public interest in disclosure, the plaintiffs argue that

fees were exempt from dis closure as confidential commercial information). collecting and setting fees, and a document outlin ing PPNNE’s operations and Standards and Guidelines, a letter describing the manual, policies about (upholding trial court’s determination that PPNNE’s Manual of Medical uphold the trial court’s determination. See Right to Life, 778 F.3d at 47, 50 - 51 argument. Se e Wyles v. Lees, 162 N.H. 406, 414 (2011). Accordingly, we financial documents. Such a bare assertion is not a sufficiently developed Center has “little or no privacy interest” in the monetary amounts listed on the The plaintiffs declare, without any analysis, that the Feminist Health

conduct,” the State had properly r edacted them. documents “primarily show the conduct of the clinic,” and “not any government specifically was spent.” Accordingly, the court concluded, because these documents do not provide information about how the s tate grant money funding during [the] time periods” reflected on the documents, “the financial received State money, but that “even assuming that the clinic received [such] The court found that the public had an interest to the extent that the clinic activities and competitive stance in the market relative to o ther health clinics.” redaction of [the] financial information as it relates to [the center’s] commercial The trial court found that the center “has a privacy interest in the

“STD/H I V/HCV Clinical Services” a nd “HIV/HCV Targeted T esting” (P119 - 20). budget period July 1, 2012, to June 30, 2013, submitted with a request for for income taxes (P110 - 11); and (4) two copies of the same budget form for the cash dur ing the year, how much was paid for interest, and how much was paid from operating, investing, and financing activities, the net increase/decrease in calendar year 2010 (P107 - 09); (3) a document that lists the center’s cash flow (P105 - 06); (2) a document that shows the center’s income and e xpenses for assets and liabilities of the Feminist Health Center for calend ar ye ar 2010 Feminist Health Center. Th ose documents are: (1) a document that lists the State’s redact ion of monetary amount s contained in financial documents of the The plaintiffs next assert that the trial court wrongfully upheld the

4. Feminist Health Center D ocuments p. 23 23

we deem any such argument to be waived. See Aubert, 129 N.H. at 428. documents in the record on appeal and have not briefed any argument about them. Accordingly, documents were produced without redaction. Moreover, the plaintiffs have not included those stamped P112 and P116 as being at issue in this appeal, the record indicates that those Although in their January 12, 2016 letter to this court, the plaintiffs identified documents bates - 4

salary information. court ordered the State to redact the individuals’ names, bu t to disclose the have a right to know the salaries associated with those positions. Thus, the names of the individuals holding the positions at issue, but that the public did governmental entity or a “surrogate [ ]” t hereof, the public need not know the court determined that because the Feminist Health Center is not a taxpayer dollars are flowing to the entity and funding certain services.” The interest in the finances of the clinics that receive state grant funding because to - Know Law.” However, t he court also found that the public had “some these employees work for a private entity that is not itself subject to the Right that there “is a privacy interest at stake in the disclosure of this information as With respect to the key administrative personnel form, t he cour t found

names, and upheld the redaction of names from the board member list. privacy interest outweighed any public interest in the disclosure of their Lamy, 152 N.H. at 111 - 13. Thus, the court found that the board members’ public interest in disclosing the names was not entitled to great weight. See names. With re gard to board members, the court found that the asserted disclos ing the names from employee resumes, it upheld the redaction of those Health Center. Because the court did not find a sufficient public interest in a privacy interest in their identities and their association with the Feminist The trial court found that individual board members and employee s had

confine our analysis to the redactions of names from the se documents. required to disclose an individual’s private telephone number. Thus, we individual’s home address was lawful, and do not argue that the State was executive director (P115), the plaintiffs appear to concede that redaction of an redacted from some of these documents and from the resume of t he center’s Although individual home addresses and private telephone numbers were also outreach services (P117); and (4) the resu me of the center’s staff nurse (P118). 4 personnel form) (P114); (3) the resume of the center’s director of STD/HIV and administrative personnel for fiscal years 2013 and 2014 (key administrative 2012 list of board members (P 113); (2) a form identifying the clinic’s key certain other produced documents from the Feminist Health Center: (1) a June The plaintif f s also challenge the redactions of individual names from

privacy interest in nondisclosure that outweighs such a negligible public individuals is derivative and because these indi viduals have a cognizable Because the only public interest in disclosing the names of the

Lamy, 152 N.H. at 113. interest in disclosing the information” is derivative, it is entitled to little weight. derivative, and in Lamy, we held that when, as in this case, “the sole public favoritism” to the Feminist Health Center. This kind of public interest is whether those contributions have resulted in the State “showing undue scrutinize whether the individuals have contributed to political campaigns and the names of the individuals because doing so will enable the public to 111 - 12. The plaintiffs argue that there is “a great public interest” in disclosing Department of State v. Ray, 502 U.S. 164, 178 (1991); s ee Lamy, 152 N.H. at information to obtain additional information outside the Government files.” rather from the hope that [the plaintiffs], or others, may be able to use that the names “stems not from the disclosure of the redacted information itself, but “The asserted public interest” upon which the plaintiffs rely for disclosing

kind of information”). government,” and the court could not “conceive of [] any public interest in that but for a private organization that receives part of its fund ing from the federal employees when such employees “do not even work for the federal government, names and other identifying information of PPNNE middle - and lower - level 64 (ruling that federal agency had met its burden to justify nondiscl osure of the the State’s own conduct. See id.; see also Right to Life, 976 F. Supp. 2d at 62 - (quotation omitted). The disclosure of these names will reveal nothing about will not tell the public anything directly about what the State “is up to.” Id. N.H. at 111 (quotation omitted). Here, the disclosure of the individuals’ names “the utmost information . . . about what its government is up to.” Lamy, 152 whether disclosure of the otherwise private information will provide the public individuals. The public interest that matters for the Right - to - Know Law is We next address the public interest in disclosure of the names of the

333. Feminist Health Center. See Sensor Systems Support, Inc., 851 F. Supp. 2d at controlling the dissemination of their names and their connection to the submitted to the Board of Pharmacy, have a cognizable privacy interest in employees whose names were redacted from the license renewal applications the nondisclosure of their names. The individuals at issue, like the PPNNE We begin by assessing whether the individuals have a privacy interest in

two parallel packets of documentation, one as redacted and the other as On March 27, 2015, the trial court ordered the State to provide it “with

(2004). before the trial court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, p. 25 250, ap pealing party, here the plaintiff s, to demonstrate that they raised their issues Const r. Co. v. Smyjunas, 161 N.H. 714, 718 (2011). It is the burden of the demonstrated that they preserved it for our review. See J & M Lumber & address this assertion substantively because the plaintiffs have not in the table were sufficiently specific. (Emphasis omitted.) We decline to after the Februar y 2, 2015 deadline” for briefing, and in finding that the entries to provide [them] with a table of contents of withheld documents two months The plaintiffs next assert that the court erred “in only requiring the State

requests satisf ied the requirements of RSA 91 - A:4, IV. ruling that the State ’ s written responses to the plaintiffs ’ R ight - to - K now so is not “necessarily required”). We, therefore, uphold the trial court ’ s implicit Vaughn index may be sufficient to justify an agency’s refusal to disclose,” doing on a document - by - document basis” and that “[w]hile . . . the preparation of a (explaining that an agency “is not required. . . to justify its refusal [to disclose] case. See Murray v. N.H. Div. of State Police, 154 N.H. 579, 583 (2006) its initial responses, the State was not required to provide such an index in this Although a Vaughn i ndex requires more specificity than the State provided in privileges indicating the exemption or other reason for non - disclosure.” request, . . . the State cited statutory provisions, case law, or applicable found, and as the record supports, “[i]n response to each Right - to - Know the denial “in writing” and provide “reasons” for the denial. As the trial court public record for inspection and copying, a public body or agency need only put RSA 91 - A:4, IV provides that, when denying a request to produce a

statute. We agree with the State. with RSA 91 - A:4, IV (2013) and that greater specificity is not required by that State contends that its initial responses to the plaintiffs ’ reques ts complied justification for its nondisclosure.” Union Leader Corp., 142 N.H. at 548. The i ndex . . . include[s] a general description of each document withheld and a See Vaughn v. Rose n, 484 F.2d 820 (D.C. Cir. 1973). “Generally, a Vaughn Know request under RSA 91 - A:4 with the requirements for a [ ] Vaughn [i] ndex.” “confuse[d] the requirements for an agency ’ s initial response to a Right - to requests violated RSA chapter 91 - A. The State counters that the plaintiffs have conclude that the S tate ’ s initial responses to the plaintiffs ’ R ight - to - K now The plaintiffs next argue that the trial court erred when it failed to

D. Specificity of State ’ s Responses

See id.; see also Favish, 541 U.S. at 174. interest, we conclude that disclosure is not required by the Right - to - Know Law. p. 26 26

and entitled them to an attorney’s fee award. until 9 months after [the] request were both knowing violations of RSA 91 - A,” identify the documents it was withholding and the reasons for the withholding pages of financial records until 12 weeks after the request and [its] failure to The plaintiffs contend that “[t]he State’s failure to provide the hundreds of State knew or should have known that its conduct violated RSA chapter 91 - A. withholdings until ordered by the Superior Court in April 2015”; and (3) the documents, the State “repeat edly refused to provide reasons for its financial records they requested; (2) with regard to the buffer zone litigation Director, Charitable Trusts Unit (CTU) took 12 weeks to provide them with the The plaintiffs argue that they are entitled to fees because: (1) the

law. Id. fact unless they are unsupported by the evidence or erroneous as a matter of (quotations and brackets omitted). W e will defer to the trial court’ s findings of violation of RSA chapter 91 - A.” Prof ’ l Firefighters of N.H., 159 N.H. at 710 person knew or should have known that the conduct engaged in was a make the information available”; and (2) “the public body, public agency, or plaintiff if the trial court finds that: (1) “such lawsuit was necessary in order to RSA 91 - A:8 (2013). Under RSA 91 - A:8, I, attorney ’ s fees shall be awarded to a RSA 91 - A:8 governs remedies for violations of the Right - to - Know Law.

fees. them attorney ’ s fees and costs. We first address their request for attorney’s The plaintiffs next contend that the trial court erred by failing to award

E. Costs and Attorney ’ s Fees

substantively. See Smyjunas, 161 N.H. at 718. regarding the table of contents for our review, we decline to review it plaintiffs have failed to demonstrate that they preserved their argumen t in finding the entries in that table to be sufficiently specific. Thus, because the that the trial court erred by requiring the State to provide a table of contents or plaintiffs ever informed the court, in a motion for reconsideratio n or otherwise, However, the record submitted on appeal does not demonstrate that the (2003); N.H. Dep ’ t of Corrections v. Butland, 147 N.H. 676, 679 (2002). LaMontagne Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 274 sufficiently specific, it was incum bent upon them to so inform that court. See ordering the State to provide the table and by finding its entries to be To the extent that the plaintiffs believed that the trial court erred by

to provide the table of contents to the court and to the plaint iffs. numbering stamp numbers or equivalent numbering.” The State was ordered the documents by a reasonable brief description and by reference to the and parallel page numbering” an d include “a table of contents which identifies unredacted.” The order required that each packet “contain readily identifiable p. 27 27

alternative grounds to support it.” (quotation and brackets omitted)). result, but on mistaken grounds, [we] will sustain the d ecision if there are valid N.H. 504, 508 (1990) (explaining that “w hen a trial court reaches the correct respect, we affirm its denial of costs. See Catalano v. Town of Windham, 133 award. Even if we assume without deciding that the trial court erred in this the plaintiffs costs because they had “not specifically requested” such an We next address the plaintiffs’ request for costs. The trial court denied

court properly denied the plaintiffs’ request for attorney’ s fees. See id. Budget Assistant, 145 N.H. 451, 455 (2000). Accordingly, we hold that the trial have known that its conduct violated the statute.” Goode v. N.H. Legislative findings, and the law in this area,” that the State “neither knew nor should with this reasoning. We hold, based upon “the record, the trial court’s consequence of the specific disclosures mandated by [its] order.” We concur plaintiffs were “not entitled to an award of reasonable attorney’s fees as a known that disclosure was required.” The court, therefore, found that the under current New Hampshire case law that the State knew or should have did not meet Right - to - Know requirements, they were not so unreasonable although it had “concluded that certa in redactions or withholdings by the State With regard to the State’s response in general, the trial court found that

State’s production of the buffer zone litigation documents. court correctly denied the plaintiffs’ attorney’s fee request with regard to the more was required under RSA 91 - A:4. See RSA 91 - A:4, IV. Thus, the trial disclosure.” The record supports this finding. As previously discussed, no applicable privileges indicating the exemption or other reason for non exemptions and withholdings” by citing “statutory provisions, case law, or that, contrary to the plaintiffs’ assertions, the State sufficiently justified “its With regard to the buffer zone litigation documents, the trial court found

re quested from the CTU. See ATV Watch, 155 N.H. at 442. err by denying the plaintiffs attorney’s fees with regard to the documents not necessary to enforce the CTU’s compliance with RSA chapter 91 - A, did not erroneous. See id. The trial court, having found that the plaintiffs’ lawsuit was persuade us that the record does not support them or that they are legally omitted.) We uphold these factual findings because the plaintiffs have failed to production,” it was not “necessary in order to enforce compliance.” (Quotation court concluded that “[a]lthough thi s lawsuit was pending at the time of December 2014, “upon completion of the agency’s internal processing.” The court further found that the CTU produced the responsive documents in d ocuments responsive to the [plaintiff’s September 11, 2014] request.” The documents in August 2014, “it is unclear when [it received] the other court found that, although the CTU had received one of the requested The trial court rejected these arguments. With regard to the CTU, the p. 28 28

DALIANIS, C.J.