New Hampshire Right To Life et al. v. Director, New Hampshire Charitable Trusts Unit et al.

NOTICE: This speech-to-text record was generated from automated speech recognition, is likely to contain errors or inaccuracies, and should be verified against the recording provided by the Supreme Court at https://www.courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream/2016.

etal versus Director, New Hampshire Charitable Trust Unit. Etal. The record should reflect the fact that Justice Hicks is disqualified from this case.

Counsel, Good morning. Your honors. May it please the court, Michael Tierney for New Hampshire Right to life and Jackie Pier. I would like to reserve two minutes for rebuttal. Um, and I waive a three minute opening and welcome your questions at any time. So can I ask you then first on the, um, on the video of the, that you want? Yes. Is there anything in the record that indicates that when, um, that video was sent to the Attorney General's office or the charitable trust that the, uh, the send, what is it? Is it Planned Parenthood that was a sender, planned Parenthood was the sender Correct. Planned Parent. That, that before they did that, they got some authorization from the people depicted in the video, the consent of them to disclose it to the Attorney General's office. Is that in the record anywhere? No record of that at all. My understanding is that it is a, uh, video of a public sidewalk. Right. So, so in other words, I, I guess what I'm saying is planned. We don't, the record does not reflect that Planned Parenthood was concerned enough about turning that information over to a third party that is the Attorney General that they got before they did that, they got some consent from the people depicted in the video. Correct. I've spoken to at least one of the people who was on the sidewalk on that particular day, and she never had any communications, uh, with Planned Parenthood or the state? Well, I, but I'm, I guess I would be talking more, I guess I would be equally concerned about anybody, people that were going into the clinic. Is there any indication that, you know, they got consent from? I haven't seen any indication. Okay. Was there any discussion about, uh, whether you could pixelate or redact the identities, uh, effectively re de-identify the individuals depicted in the video? Uh, There was no discussion about that. And, and what, what would the importance be of the specific identity of the individuals, either the protestors or the people going into the, uh, facility? Well, the only, um, relevance of the video is that the state had said that it had this video showing that there were problems on the sidewalk that justified the passing of this particular law. Right. But whatever problems there are independent of the identities of the particular people. Correct. Presumably, yeah. Correct. Could, could you help us with your argument with regard to the DVDs, uh, concerning access to government material? Because that underlies all of your requests, right? Absolutely. So what is the link between the DVDs and government material? Is it only partial grants and funding, um, that gets you where you wanna go? Uh, well, the grants and the funding are pertinent to other documents when it comes to the actual DVDs. What's relevant are the, uh, bills that were pending before the house in 2015 session and are pending in the 2016 session. Well, I understand regarding the Repeal, well, I you're talking about relevance to litigation, but access, access in right to no law cases means access to government material. So why are the DVDs government material, in your view? Okay, the, um, relevance is to the legislative hearings, um, that happened in 2015, New Hampshire to, that's Not, you're not answering Justice Convoy's question, and I have the same question. You have. This DVD has to be government material in order for you to get it under 91 a mm-Hmm. Why is it government material? Well, the statute is quite clear. Um, 91 A says that, uh, public document is anything in the possession, custody, or control. And there's no dispute that these DVDs are in the possession, custody and control of a state agency. Um, those DVDs having been given to a state agency, become a document in the state's, um, care, custody and control. You don't need to go any further than the statutory language. Um, the, Can I ask you, uh, on a different point, um, it appears to me that there's a dispute in the record as to the Gallagher affidavit, um, whether it's a draft or whether it's final, um, or, and who might have prepared it or drafted it. Am I right in that there seems to be two different views of that, and if so, what do we do with that? Well, there's definitely a factual dispute as to whether that affidavit was a final signed draft, uh, signed affidavit as opposed to a draft affidavit. I think appendix page 84 makes clear, um, that it was being sent to the state as a PDF in final form. Not that there was a draft that was going back and forth between different state attorneys. Um, but really whether it's a draft or a final form, while that's a factual difference, it doesn't make any difference, uh, because it had been shared with a third party. Um, and if a draft is shared with the third party, then it no longer has any work product protection because that work product protection has been waived by being shared By. And, and if I understood correctly, you're the other, I mean, I if I understood correctly, the other thing you were saying is that, that Gallagher and Planned Parenthood were not the clients of the state. Correct. So that if some state attorney, that that would be no different than a state attorney getting, uh, getting some information from a witness from any other witness. Correct. Uh, in preparation for, in preparation for litigation. Exactly. And there's two cases in which the state has gotten witness statements, those wicker cases, well, as the, uh, uh, sh shaman case in which this court has held, um, that those, um, you know, witness statements are not protected by the work product doctor. Um, And is there any, is there any, like, can I just ask you another question? Is there any issue here that this litigation, that, that the litigation that the state was, was preparing for is, you know, that it's, that there's some likelihood that this is gonna, that it's gonna be resurrected, um, that kind of thing? I, I think it is definitely a possibility that the litigation can continue to go on. The litigation has been stayed. There's a motion to dismiss pending, um, whether this case that the, um, uh, state referenced that, you know, started in the summer of 2014, um, ends in a month or continues in, you know, for next five years, uh, either thing could happen, but that's really irrelevant to New Hampshire Right. To life's, um, want of this state document, um, for number one, knowing what the basis is, um, and for its, um, legislative, uh, hearings that New Hampshire right to life has testified the past, wants, testified at in the future. Um, and, and so whether the litigation continues, or whether the litigation is dismissed, New Hampshire right to life, still wants copies of these documents in order to, um, publicize them, in order to share them with its supporters in order to make its best argument, um, to the legislature to repeal what it feels is an unconstitutional law. And it's very important, uh, where the last session, this particular repeal bill died in a 1212 tie at the Senate. So whether this particular affidavit, whether these DVDs, whether whatever New Hampshire right to life thinks is going to make its most convincing argument, um, it's a public, So in other words, in other words, you, you want, uh, you wanna say something like, and I, this is, I I'm just sort of paraphrasing, but you wanna say something like, look, members of the legislature, here's what the Attorney General's office or the Charitable Trust here, here's what, here's what they were doing in defending this law. There was an ad, there was this affidavit. It doesn't, it doesn't establish anything, at least by your, by your point of view, it doesn't establish anything. Now, they may say it establishes a whole lot, but you would, you would wanna be able to be free to say, here's this document that shows that when the, when the Attorney General's office was saying, there's really good reason for this law. Look at this. It doesn't establish anything. Not necessarily this affidavit is going to have factual assertions, factual assertions about, uh, pene Street in Manchester or one of the other places. Um, and what those factual assertions are, um, could assist, uh, New Hampshire rights life in making its legislative arguments. Um, New Hampshire life doesn't know whether it's going to assist or not, because it hasn't seen what the actual factual assertions are. Can I, can I just pursue what our overall standard has to be in examining all of your arguments, what lens we're looking through? You suggested earlier that as long as any material is within the custody and control of the state, then it's subject to the right to no law. But I'm wondering about case law that talks about the whole idea behind, right, the right to no law is access to state activities, governmental activities. What is the lens that we should be looking through when deciding when these various categories of materials are or are not disclosable? Well, anything that's in the state's possession is subject to the right to no law, but whether it is exempt, um, you then go to the balancing of the privacy interest versus the public interest and disclosure. And when you're doing that balancing test and you're looking at the public interest and disclosure, it should be showing something about what the government is doing, the government's funding of these clinics, the government's granting of special exceptions under the LRDD, um, as opposed to if it didn't have any public interest and there was a great privacy interest, then that balancing will be different if you have a great public interest and a minimal privacy interest. Well, It seems to me that Judge Mangoes did a pretty thorough analysis, uh, of the balancing problems for each of the requested items. Where do you say he fell short? Well, he only spends one paragraph talking about these budgets. Okay. These budgets showing how the state is, um, granting funds, um, to these particular clinics. This is tax taxpayer funds. 87.5% of some of these individual salaries are being paid for with state, um, state money. And there's a very, very minimal privacy interest. Um, that's the holding of the retirement system case, the LGC case in an individual who is receiving, um, their salary with public funds in their identity, that's a very minimal privacy interest, but there is a great huge public interest in knowing how the government is spending taxpayer dollars. So that balancing Said you just referred to a percentage and that I was in your reply brief. You talk about, oh, well the state says this won't show anything, but in fact it shows 87% and all these numbers. So it seems to me that it, it does show in information, but you already have that information. So after you get beyond the numbers, why does it matter if it's, uh, Sue Brown or Joe Smith? Well, what matters, um, is that Sue Brown may have 20 years of experience and she's getting paid at whatever rate, while somebody who has only one year of experience is getting paid at a different rate, or that Sue Brown with her 20 years of experience is getting paid at one rate while somebody else with 20 years of experience, but works for a clinic that is better politically connected, has made substantial, um, campaign contributions is getting paid at a significantly higher rate. Is it, is it true that Judge Mangoes granted, uh, a qualifier on those in those cases by saying that the state has to provide the function title of these individuals rather than their names? Is that right? No, I think you're confusing the, um, uh, LRDD applications with the Board of Pharmacy where Judge Manus said the, um, title as opposed to the budget information. So isn't your position that every single document that Judge Manus ordered not to be disclosed is disclosable? No. That he aired across the board? No, not at all. Um, So where do you draw the line? What disclosures did he order that you accept concede mm-Hmm. Should not be disclosed? Absolutely. There are six things, um, that we listed, um, in the, um, uh, supplemental notice that we provided with the court yesterday in response to the Monday's order. Um, and those things that were listed, um, set forth. So we have that now in the file. It just arrived in the file yesterday. You're Telling it just arrived in the file yesterday. That's fine. We're talking about 50 pages of the total, you know, 2000 pages. Most of those documents were never provided to us. We didn't even know they were withheld until, um, after the, um, trial briefing. We wouldn't dispute most of those withholdings. Mr. Tierney, I, I know your light's on, but I have one further question about the Gallagher affidavit. Yes. Is it your position that, or, or let me ask it this way. Is it relevant to us in any way whether or not the Gallagher affidavit would be discoverable in the federal litigation? No, That's really quite irrelevant. Uh, whether it is discoverable in the federal litigation, whether the federal litigation continues or whether the federal litigation ends, it is really not relevant to the right to know analysis for a state document. And I guess one of my broader concern there is that does it hobble the state in its litigation if at any time discovery can't be obtained in the case, um, someone files a 91 a claim to get documents that otherwise would not be discoverable in the litigation? Well, I think that that is something that could be taken up by the legislature if want to amend 91 A. But Your standard was as long as it is in the possession and custody of the state. Correct. Then it's disclosable. So Judge, I'm interested in your answer to Judge Bassett's question. Looking at the big picture, if a court said, no, you're not getting a particular document in discovery in this litigation, can you, your, your clients go around that court order and say, we're making a right to no request, and as long as it's in your custody, we get it. Lemme be clear, if the, um, affidavit wasn't, um, able to be obtained in discovery because of the fact that it was protected by the work product privilege or some other recognized privilege, then 91 a wouldn't allow it to be disclosed either. But if the affidavit couldn't be disclosed because the case gets dismissed, there's no discovery, the case is over or, or some reason like that, that in this case, It's held in a advance. Right. In this case, In this case, it's been stayed for a year and a half. There's a motion to dismiss. It's been pending for six months that the case isn't active in any, you know, real way. Okay. Has there been any effort in that litigation to obtain that affidavit? There Has been no effort in that litigation to obtain the affidavit because it's not actually relevant, um, to anything to the parties in that litigation. New Hampshire right to life in its legislative advocacy wants to make sure it has all the state's documents relevant to the abortion clinic buffer zones. And I take it, can I, um, and again, I know you're lights up, but I'm just, one thing you said, um, raise an issue with me. Has, has the state or are, uh, any of the def uh, any of any people aligned with the state in that litigation, asked the federal court for some type of a protective order related to this, uh, through this affidavit? No, there has been. Okay, Thank you. May I please the court? My name is Megan Yal and I represent the state in this matter. Um, I will set forth my argument, but I can also take questions at any time. Um, as an initial matter, um, is clear that this is the subject matter of this appeal is something that incites a lot of passion in people. But I think it's important to note that this, this appeal is only about the statutory interpretation of RSA 91 A and whether the, the state properly withheld or redacted certain information. Um, Why, let me ask you, why shouldn't New Hampshire right to life be able to get the in inform the factual information that's in the, uh, Gallagher affidavit? Um, I think the, the petitioner sh that that affidavit itself, um, has been determined to be work product. And the, even though there are facts in that affidavit, the act itself of creating the affidavit and getting the information from Planned Parenthood for the federal court litigation, um, was, you know, the attorneys in the ags office, their work product. And so the fact that it was used and was gathered for, um, um, up or ongoing litigation, um, makes it work product. But how, How, but how, I mean, if that's true, I see Mr. Johnson sitting in the back of the courtroom. I, I suspect if that's true, he might say, would we then say that listen, if, if he sends out one of his investigators, uh, to get, uh, or he himself, uh, uh, gets factual information from a witness that he, that that's, uh, that, that the purely factual information is work product because it's his act of doing that, or his, or the, or his agents. I haven't, we said that's not true if it's factual information. Right. But I, there is, was also the Superior Court also found that there was information in that affidavit that could have been the, uh, mental impressions of the individuals or Mental impressions of, of what individuals, if it's, 'cause if it's Ms. Gallagher, she's not, she's not the client of the state. Right. But the, the mental impressions of the attorneys in seeking out specific information for that affidavit. Okay, so why don't, so why don't we redact why isn't, why isn't the part that's purely factual turned over, um, as opposed to, uh, you know, as opposed to the part that has some legal conclusions. And, and if the, if the argument is that well turning, turning over, even the factual information will, will, will sort of focus on what the attorney thought was important. I mean, that, that just proves too much, doesn't it? Because that, that would, that would be, that would mean that factual information just couldn't be turned over because of course, uh, it, it may reflect what the, you know, the attorney presumably in, in, uh, when Attorney Johnson has somebody in interview a a prospective defense witness, you know, he doesn't, he doesn't ask them, how's your golf game if the case involves, uh, involves, uh, uh, somebody charged with somebody charged with robbery or something like that. So I suppose in that sense, it's a factual, you know, that that reflects what he thinks is important too. Right. I, I think it's important though, that this affidavit was for, um, litigation and was prepared for a preliminary injunction hearing that never even occurred. And so, you know, it was listed on an exhibit list, um, but it wasn't, it was never produced to anybody. And, um, it, you know, the facts that were asserted in it could have been changed at a later date. And so I don't think that, um, you know, there, there may have been at the time facts in it that, you know, in other cases may have been disclosed, but the fact Or so you would, so, I'm sorry, you know, you would say that and, and this may I, I, I, I see, I, I think I see your point that you're saying that there may be a timing aspect to this. In other words, if, if, because this litigation hasn't concluded yet, correct, maybe there's a timing issue at, for example, if af let's assume, let's suppose that the federal court somehow dismisses the case, then what, would you have the same argument then? Would you be able to say then that the information shouldn't be turned over? I think, you know, if the federal court did dismiss the case and there wasn't any appeal going on, um, that the analysis might be different. I mean, I, I, I'm not exactly sure. I think that because this specific case is still ongoing, and you know, even though the petitioner say that there is a motion to dismiss pending, I mean, I, the Attorney General's office is still actively working on this case. There are still hearings or, you know, um, preliminary, uh, conferences going on with the judge in that case. And so I think they're constantly gathering information that is all part of their work product. Could you focus a little bit on the DVDs showing patients going in and out of the clinic or clinics? Um, you argue privacy. Um, help us understand why the privacy argument should prevail here when these are public streets and the DVDs are showing individuals going in and out and demonstrators. I guess. Yes. I think that in this case, the individuals that could be possibly shown in that DVD, um, they do have a heightened privacy interest in the fact that they are going into, um, a facility that provides healthcare for individuals. It's not, um, it, you know, it may show a public sidewalk. Well, But let me give you an example. If I go into the Payson Cancer, uh, division up at the Concord Hospital and someone sees me doing that, I, I'm really not going to be able to claim a pri privacy. Right. I don't want anyone to know I have cancer. Right. But if I'm seen going into the cancer clinic, um, you know, isn't I'm, I'm doing something publicly. Yeah. And so how, how does privacy trump in those circumstances? Well, I think in this case it's important to go back to the balancing test and the privacy interest of these individuals in that the type of care that they're seeking is you generally something that is very private in nature and, um, you know, the kind of harassment or anything that could occur if their identities were to be disclosed. So it's really the potential for harassment. But is that, is that an appropriate yardstick for us to apply here? I think so. And then balancing that against the public's interest in this disclosure, I mean, the security camera was set up by Planned Parenthood. It's Planned Parenthood's, um, you know, view of their, the street and their area, and it's not showing any kind of government conduct. But Apparently there was no problem in turning these DVDs over to the state, right? Correct. So why Would there be a problem with turning them over to New Hampshire Right. To life? Same. It's the same issue. Well, I mean, I believe that, you know, the, the state believes that this, that they withheld this information because it constituted an invasion of privacy. And I think it would be reasonable for New Hampshire right to life to ask Planned Parenthood for those DVDs, whether or not Planned Parenthood would give those DVDs to New Hampshire Right to life. I do not know. Yes. But the Chief's point is they didn't think it was, they didn't think that privacy was invaded when they turned it over to you. I mean, now you, you don't, I, I guess my same question that I had for your opponent, you don't have any information suggesting that before they turned it over to you, they got consents from the patients to do that. I mean, if you do, please tell us. But no, your Honor, that that is not in the record. I'm not aware that Plan. So I guess, I mean, it seems to me the Chief's point is why is it okay for them to say, well, we can, you know, it's okay. We can, we can trust this person to turn it over to, but now when it's, when it's, when it's, uh, disclosure to the public, no, we can't, we can't, uh, you know, it, it, it should be withheld. Well, the, the state looked at the DVD and felt that it constituted an invasion of privacy to disclose that information. And so, um, you know, the Superior Court also v viewed these DVDs and found that it also constituted an invasion of privacy to disclose the information. So that's why it was determined to have been properly. Was there ever any discussion about whether the faces or identifying information on the individuals could be pixelated or somehow obscured? Uh, it seems that if it was Jane Smith or not, may not be as important as, or Jane Smith might care about it. And it may not be as important as the number of people or the timing or, or whatever of people going in and out. Your Honor, I'm, I'm not aware of any technology. I guess that the Attorney General's office has to do that, but I'm not saying that then that that can't be done. Um, I think that then if you kind of go down that path, I mean the, the state or you know, any, in any right to no request, the state has the ability to redact information on documents and whatnot. But, um, I think you then go forward with that, um, kind of like ability. And are you, is then the state creating any kind of like, new document that wouldn't, they wouldn't have to do under a Right to Know request? I think it's kind of a fine line of what, what the state is required to do. Um, the, as far as the ability to, um, you know, cover up bases or anything like that, the, again, the trial court viewed these D DVDs and didn't find that that was something, there's nothing in the record to show that that was something that they even, um, considered. Thank you. Um, if there are no further questions I can conclude. Um, in conclusion, um, the state would ask that the, this court, uh, affirm the trial court's decision after the, after reviewing all of the, um, information in camera, the trial court correctly decided this case and that the state had properly withheld or redacted all the information it did based upon the statutory exemptions and privileges that apply to rc. I do have a question, um, since we've got time that's okay. Uh, the 2012 pharmacy protocol, um, is it the state's position that that's a moot issue? Um, yes. That, that 2012 protocol has now been produced to the petitioners in full Without redaction? Yes. Okay. So would there still be an issue about, uh, fees or costs associated with that if there were a delay or if, if litigation had been unnecessarily, um, required in order to get it? Yeah. Well, um, I guess in that case, um, the petitioners, um, made another right to no request to the state, um, over the summer for those protocols. And then they were produced to, um, the timely, Timely in relation to that request. Timely produced. Yes. And so then, um, the, uh, petitioners, um, after they were produced, um, no, I'm sorry, excuse me. Um, I see that my light is on. Would you like me to continue? Yes, please. Okay. Um, after they, after the petitioners made that request, um, a, they then, uh, filed another petition in the Stratford County Superior Court. And before the hearing for that, um, on that petition occurred, the state produced the protocols. So at the time, time of the hearing, um, the protocols had been produced and in unredacted form we did still have the hearing on that case. And, um, in December, the Stratford County Superior Court issued an order on the attorney's fees issue. But, uh, in this case, in regard to the 2012 pharmacy protocol, the Judge Mangoes looked at the request and didn't believe that it was originally within the scope of what had been Correct. Asked for. Correct? Correct. Thank you. Thank you. Thank you. Do you need your reserve time, Mr. Tierney? If I may just respond quickly to the things which attorney PLE addressed, uh, uh, justice Convoy had asked if those 2012 pharmacy protocols were timely produced the second time around, they weren't timely produced. The second time around, it took several months, it took the second action, and that's why the Stratford Superior Court in the second action awarded New Hampshire right to life its attorney's fees, uh, for the state's continuing delays in disclosure. Well, so now that issue is no longer in front of us, that issue on attorney's fees has been litigated. So For those 2000, Those documents 12, so that's not in play here. Correct. We still have our request for the attorney's fees for the other issues. Um, judge Mango's order, getting back to Justice, Lynn's question, um, said that the Gallagher affidavit had the mental impressions of the affiant of Ms. Gallagher. Um, and so, um, you know, judge Manus, who presumably read that affidavit, said it was Ms. Gallagher's, um, mental impressions, not the mental impressions of the state's attorney. Did he specifically find that it didn't reflect the mental thought process of the ags office? Or did he just not make an observation in that regard? Um, I don't remember exactly the wording of it, but it was something of the effect of the decision to use it or not use it, um, was, uh, the mental, uh, impressions of the ags office whether to use those facts or not to use those facts. Okay. Which I think Judge Manez erred in determining that to be the appropriate. So we have it in our brief. Thank you. Thank you. Case submitted. Counsel may come forward in the matter of Brooks versus.