Lisa Censabella v. Hillsborough County Attorney

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This is case 17. Lisa says, Mr. Tani, good morning, Jo, uh, Johan. And, uh, may it please the court.

I'm Tony Soltani, and first I wish to, uh, happy, uh, wish everyone a happy vernal equinox and the Solar New Year. Uh, and, uh, this might be a good harbinger. The, uh, this case is far narrower, the narrower than, uh, it's actually framed the federal FOIA and the Supreme Court in the United States. Supreme Court has repeatedly said that under foia, we expect everyone to be treated, every requester to be treated as if it is the major news agency or the most powerful person. That's a, that's an aspirational statement in New Hampshire. It does not, it is not an aspirational statement, and it doesn't have to be treated that way. And this case wants to reduce it to that only an aspirational statement. Can I just ask, can I ask a question? Sure. I waive any the courtesy period, judge, you know, that, So I guess, uh, well, thank you, first of all. Thank you. But secondly, I guess my, my question is why didn't you, why didn't you just be the requester? Wouldn't this whole thing have gone away if you said, I'm the requester, or it doesn't matter whether I am, uh, you know, whether I, you know, was secretly, uh, representing a client or not. I want the stuff and I'm a member and I'm a citizen, and I, you know, I'm not dis entitled because I happen to be an attorney, so I want it. Wouldn't that have ended it? No, A few reasons, judge. I don't wanna run up the fight with a white, white flag because they're eating, eating away at the rights of the people. Two, I'm not dishonest, I'm honest. The best I could do is Tony Soltani as attorney four, Lisa Ella. I am not gonna say something that is not true. And three, I am not going to do something a year after the request has been made. And the council for the opposing side has been silent about the identity of the council, about, about the identity of the requester. He is a municipal counsel under law. And the last iteration that we had by Judge Batchelder, I'll never forget it, was that municipal counsel better get in the habit of helping people and helping them achieve their rights and obtain their rights. If he had a problem with the original request because it was not identified, then he doesn't get to decide, well, I'm gonna give you one third, one half or three quarters, unless you tell me who he can say, I wanna know who the requester is or say, well, I'm just gonna answer it without knowing who the requester is and what difference does it make, who the requester is. Uh, we went through this judge because The problem, the problem I'm having, Mr. Tanya, is you're right. It doesn't make a difference who the requester is. But that's the point I think, is that you, I mean, you sort of say dish, I, I guess I don't really see how it would be dishonest for you to say, look, I want, you know, it's none of your business whether I'm representing somebody or not. I want this stuff, and I am a citizen and I'm entitled to it. And what I do with it after I get it, it's none of your business state. I, I guess I don't see how that, how, how doing that and thereby establishing your standing wouldn't somehow some way have been dishonest. Well, uh, we tend to disagree on that because I was acting as the, as an agent of my client, just like a mother, as as next friend of her deceased daughter, let's say. Or did you convey that, uh, agency to, um, Hillsborough? I'm sorry? Did you, uh, convey your agency? It was in the pleadings. Uh, it was obvious that I was the agent in the pleadings. In the pleadings in court, yes, but not when the requests were being made under 91 A. You were, you never made a request on behalf of somebody else. As a matter of habit, I do not identify who my client is, and I, and I invite them to ask me who it is. In this case, I did not. So why, why didn't you just stay in that role and be the plaintiff in this lawsuit? Because When you bring a lawsuit, the real person has to show up. You can ask for anonymity, which is rarely granted or designation by, uh, by, uh, uh, alphabet, which is rarely granted. But the real person, the person of interest who on whose behalf I acted must be the party, the best I could have done is remain still as the agent Tony Sony as an attorney for, or agent of Lisa Ella. I, so The judge mangoes give you 30 days to correct the perce, the deficiency that he perceived The, the judge mangoes certainly did. He gave me 30 days to plea, uh, to amen. The pleading. And I went back and I thought about it. Would it be the honest thing to do? No, it would not be the honest thing to do for me to say that I, in fact was the requestor. I was an agent of the request order. You could have Named your client, I'm sorry, You could have amended to name your client in those 30 days. My client was the named plaintiff. Plaintiff, my client was the named plaintiff all along. Had you represented to Judge Manez that you were acting on behalf of Ms. Ella? Yes, ma'am. Over, yes, your honor. Over and over and over again. There is no doubt. Had you sent out letters previously to other agencies naming the client? Yes. And, and did they respond to you? Absolutely. We, I did it in the legislature. I did it in, uh, as a, as a lawyer for, for different people or different organizations, different new news agencies. I don't want my clients to have a target on their back. Right. But, but because there Are repercussions. But the response of the public, uh, agency, um, is one thing. It's filing a lawsuit is another. I mean, the, they towns or counties get requests all the time. And it doesn't matter who's making the requests, they have to respond to it. But when you get a lawsuit, that's, that's different. You have to be, uh, asserting some rights that were denied you below. And so there has to be some nexus between the plaintiff and the lawsuit and the requester below. And that's what's missing. Judge Bassett, you are exactly right. And that is my point. You couldn't have said it any better than I am the request or the identity of the request, or is between me and my client. It's none of the government entity's business. But when I go to court, my request or essentially has to come out of the closet, unless the court grants anonymity, I cannot. Why does the requester have to come out of the closet? Why? If we rule against you here, why can't you just file a suit tomorrow in your name and proceed and get all the relief that you're looking for? Because I was not the original requester. It would be sham. It would be. But you were, you were the one that was talking to the town and that the town was dealing with. And you didn't say you were doing it on behalf of somebody else. They just, it's Tony Sultani. That's true. Citizen of the United States. You don't even have to be a citizen of New Hampshire. You don't. Or of the United States to make request under 91 A. You are good. I like you, judge. I like you very much. I'm almost Thank you. Don't Go too far. Uh, you, you are absolutely right. And I'm not about to erode that. Right. It, the request door does not have to be identified except in court papers. And I have no responsibility to tell the original person who the requestor is. But when I go to court, if, if they are withholding information, which they were, and first, Well, we're not getting to the merit. I mean the, you, you acknowledge the merits don't have anything to do with what's in front of us today. Absolutely. But you know what, Isn't, isn't, I mean, the problem I see with what you are saying is this, and please understand, I'm not suggesting any dishonesty on your part at all. I don't think there's any, any suggestion to that. But if we were to adopt your theory, right, wouldn't that mean that a lawyer could make a request, not identify, you know, that it's in behalf of somebody else. And then, you know, the request is denied whether it's, uh, uh, validly or not. Let's, let's assume that it was not validly denied. Now there's a lawsuit. And now you say, you know, I was actually representing someone a a requester from Montana, and as part of, you know, my, my client had to come all the way from Montana, incur the expenses and all that. Boy, my, you know, this is gonna be the, the bill that I'm submitting to the, to the town for this is gonna be significantly different than if it was just me. 'cause I just lived down the street. You know, judge Lin, you are wonderful. I like that. And they should worry about that when they deny anybody's request, whether it be Tony from Epsom or Larry from Montana, do it right the first time and don't hide the ball. They should not know. That's why the Supreme Court, but isn't The, isn't the problem here. The, the problem here is not so much giving the stuff over. It's the, it's the, it's who's injured. It's who's the consequences, what's the consequences of injuring others? They injured someone and that injury, it, they, it's none of their business who it was they injured, but that injured person went to court. If they were worried about who that injured party was, they should have asked, just like the municipal council all over the state are required to cooperate. Well, we passed the secret rule that requires you to identify the true principle. So we need you to tell us who, who it is about How about this situation? Suppose that you're, you are acting on behalf of Ms. Ella. Suppose Ms. Ella lived in Montana, right? And after these requests were denied, you filed a lawsuit and some and be, but before it got very far, she decided, I'm firing you. I'm gonna do this myself. Now, you know. Now can she come in and say, you know, in the lawsuit phase and say, now I want damages for, I want the relief that the, you know, the, including the attorney sees and that kind of thing, that the, that the statute provides for, because Tony Soltani was re had really been representing me and making those requests If Tony Soltani was representing her. And that is a finding of fact that is undeniable. Yes, she is. And that's why that bit of ambiguity judge built into our law is a weapon, is a tool to keep us as stewards of the offices that we hold. Only temporary stewards honest, not knowing who we're picking on. Are we picking on, um, uh, Fox News or are we picking on the local news, sun Cook Valley Sun? Are we picking on Tony or are we picking on Judge Lynn that you should not know? And that what achieves the goal that the United States Supreme Court has said repeatedly, and the Congress has tried to cure it over and over and over again, but they have failed in New Hampshire, we don't have that. It seems to me you had two pretty easy viable alternatives. Tony Sultani can make the requests of the entity and then unsatisfied. Tony Sultani can sue in court, or Tony Sultani can go in as counsel for Jane Doe. If he wants to protect the identity of his client, then it's clear to everybody that you're there on behalf of somebody and you're not giving up the client's name. And you could make a request on behalf of Jane Doe. And then if you're unsatisfied, then you file in court on behalf of Jane Doe. Why isn't, doesn't that give you all the rights and options that anybody could want? No, judge, it doesn't, because I want to be able to represent the client. I am not making that request. The client is making that request. The client is paying me, and if they break the law, they have a responsibility to pick up the tab. Now, if I say I did it on my own, I may very well give up the tool, the weapon or the incentive that they have the recovery of attorney's fees, which would also be a lie. I did not represent myself. And they want to force me into a box of saying, I represented myself. This court has never held it. It glossed over it in, um, the Reed case without literal, without, But all they're saying is, if you're gonna go into court and represent somebody to force us to follow 91 A, we need to know that. And you should have told us that when you made the original request. You can't change horses in midstream you. If you're gonna make a request on behalf of somebody, do that, and then you can pursue those rights in court. Why? What's wrong with that? There's a, there's a big thing wrong with that. First, they're not entitled to know, that's my position. Second, if they aren't, they, they claim that they're entitled to know, then they should tell me. If they tell me, then we, we duke it out. At that point, I tell 'em, no, you don't. And let a judge decide. Uh, and that's the way it's been, is It they aren't entitled to know if you have a client or they aren't entitled to know who the client is. They're not entitled to know, uh, the, the, the identity of the client. The client. So then What's wrong with, but they should assume that you writing on your law off a stationary, right? They should assume there's someone else that you're acting as agent. This was not my first rodeo with the respondent. He knew I had made several requests on behalf of several different people. And if he wanted to know who this one is about in ca in fact, in one case, he, uh, there was some confidentiality questions and he said, well, this involves confidentiality. Are you, do you have response from this person? I said, yes, I have a waiver from this person. I I represent this person so you don't have to worry about this person's confidentiality. That extent I understand. So it Was clear to Hillsborough? Yes. According to you that you were doing this on behalf of one or more clients? Many, yes. Several, several different clients. Judge, why is it that they don't tell me right at the beginning, if I need to disclose the name of the client, why is it Monday morning quarterbacking after we come to court? Did you ask them that question? Yeah, I didn't give it an answer. Your red light is on. Thank You. Thank you, Judge. Thank you,

Ms. Kirby. Good morning. May it please the court. My name is Carol and Kirby and I represent Hillsborough County in the matter before you. I tend to agree with Attorney Sultani in that this is a very narrow case. Uh, the factual background is very important to understanding the standing issue. In the first instance, Hillsborough County received and responded to a series of requests over a period of 10 and a half months from attorney Sultani in absolutely none of those requests. Was there any kind of an identifier that he was acting in a representative capacity or did he identify Lisa Ella as his client? There are no references to her at all. In, in the record or in any of the requests. Do You agree that your client though knew he was acting on behalf of others clients? No, your Honor. And, and the record also indicates that he wrote these letters in the first person. He not only wrote them in the first person, but there are other letters that he sent on behalf of other clients where he states, and they're in the record. I re I have been, this office event has been retained to represent John cca, for example. So there's a distinction here between the requests that were brought forward in this petition and other requests that he made. Well Then how do you explain the question? Some of these documents have privacy interests. Do you represent this person? How do you explain that your client made that request of Mr. Sultani In, in the first instance? He, he asked whether or not he represented the police officer. Um, because some of the information could have been a police personnel file. Mm-Hmm. Um, under Lori, under any other issue, there would need to be a waiver, But they wouldn't have asked him if they didn't think he was representing someone. And he indicated that he did not represent her. Right. But the assumption remains that he was representing someone, not her. There was not an assumption, your Honor. Okay. And why under Union Leader v Nashua, does it matter at all, whether it's Attorney Sultani or he representing a client when the motives of the request or are irrelevant? The, the motives are irrelevant, but in order to have standing, you have to be aggrieved. In order to be aggrieved, you have to have a personal legal injury. Doesn't 91 a seven allow for the petition to be filed by the petitioner or his or her counsel? If you know that they're counsel, but if you don't know they're acting in a representative capacity, then you don't know That. But doesn't that indicate the petition could have been brought in this circumstance in Mr. Tani's name, even though he was representing someone else? Mr. There's no question Mr. Sultani could have brought this case. In fact, it, the record is replete with discussion About that. And if that he had brought it in his own name, representing someone else, would he have been entitled to fees on behalf of that unknown unnamed client in the petition? If he had indicated that he was acting in a representative capacity? Possibly if we had gotten to the merits, but I don't think he would've been successful in the merits. And Didn't he represent to the trial judge that he was acting on behalf of a client Only in the underlying petition? Right. Not in any of the requests. And does that matter? It does matter because he doesn't have the right to, to bring a case on behalf of an individual who has not been harmed. If you don't know that you're harming someone, 91, An attorney's representation that his activities were on behalf of a client as an officer of the court or an affidavit, shouldn't that be sufficient? It it isn't sufficient under 91 A. Why not under, under 91 a four? Any citizen can ask for the, for the information. There's no question about that. However, under 91 a seven, it's conceptually different because you have to be an aggrieved party. In order to be Arie, an aggrieved party, you have to have a harm. The legislature used different terms. So it's fair to infer that there's a different meaning. The meaning requires a different standing. It's not as simple as any citizen, a, a, a simple citizen, a simple interested party cannot stand, cannot come forward in this matter and say, I have a harm. Likewise. Well, you know, what is the, can I just ask though, is that, I mean, could we, is the real remedy here, and I, again, I don't for a minute, I mean to suggest any, any kind of, you know, improper behavior on the part of Attorney Sani. Absolutely. But could the remedy here be that, that there needs to be a factual finding by the trial court that in fact, Mr. Sultani was representing Ms. Ella all along mean be, because I suppose that could be a contested fact. Somebody might, maybe, maybe you would say, uh, that, that, you know, we dispute that that's not, you know, we think that this was a request by Mr.

Soltani himself. And you know, at only when it got to court, and there was some perception that maybe I could get attorney's fees if I was acting for somebody else. Did I now have a client? And again, I'm not suggesting that that happened. I'm just saying that that, suppose we sent it back and the trial court made a finding and said, no, we find, you know, there was, we have evidence and the trial court finds no, I find Mr. Sultani was credible. He was representing Ms. Ella all along. Then what's the harm? The problem with that, your Honor, is the trial court has made findings of fact, and the findings of fact include that he never indicated that he was representing anybody, including Lisa Ella. So we you're sending it back. Yet the court has already made findings of fact and they are supported by the record and they're also supported by the law. If I could go, go briefly to 91 A four. If we look at this matter and we say anybody can make a request, anybody has standing. I think it's, it's conceptually different because under 91 a four, when you make a request, there are three things that the government can do. It can either provide the public information or it's required to fi to file a written response indicating when the information will be available or if it will be be made available, or third, it denies the information in writing. Those written responses have to go to someone. And in this case, they go to individual, They go to the individual making the request Correct on behalf of someone else If they indicate that they are on behalf of someone else. So in your view, the case, You're asking us to make a, to make a leap that anytime an attorney files a request that it is on behalf of someone else and oftentimes they aren't on it on Behalf of someone. So you're saying the case turns on the county's awareness or not of whether the lawyer is representing somebody. You don't even have to know who that person is. Correct. You don't need to know that it's this person or that person. It's just, is this lawyer acting on behalf of someone else? And not even if they are, but if you know they are, that's what it turns on. It, it turns On. If you know they are, then the case goes away. In this case, we have first person letters and we have no reference to any rep representative capacity Until you get to court. Until we get to court and we get a what's To prevent Ms. Ella from making a new request this afternoon? She has. There's nothing to prevent that at all. So are we, in fact, the court invited that and that part of the, Are we involved form over substance here? No. Why not? We're we're not. Because this is a standing issue. This is a technical legal issue. It isn't really a right to know issue because she can make the request, or Attorney Sultani could have brought this case forward. Instead we're we're looking at this on very narrow grounds and she didn't make the request. She wasn't harmed. Attorney Sultani made the request and the responses went to Attorney Sultani. And you agree that, uh, a requester can make a request anonymously, like through as a Jane Doe or through a lawyer, and that that doesn't impact their right to get the information A re a request directed to, If, if, uh, attorney Sonia just said, I'm representing somebody, give me the stuff, then you don't have a problem with That, then it's a representative capacity And you didn't need to know who that person was. Just if he's representing somebody, then Correct. Fine. We know who to deal with. We don't need to know who the client is. Correct. So it turns on your knowledge, It turns on his representation. Hi, his representation. Because then we know that there's an aggrieved party and the aggrieved party is not the council. But what, but what is, I guess I'm, I'm sort of having maybe the same trouble that Justice Hicks is having. What is the, what really is, if if it, if it is actually true that he was representing Ella all along, what is the harm? I mean, if that, I, I, you know, I could, in other words, I could see if, if the que if the claim was, you know, look, he was, he was really doing this for himself and now, you know, now he, he had to, he was denied. Now he had to go to court, he wanted to get attorney's fees. So he kind of came up with this client that wasn't really a client all along, uh, to sort of game the, you know, to get his attorney's fees. Okay, I can see. But if he really was representing Ella all along, isn't the, you know, isn't this sort of much ado about very little Other than the fact that he's looking for attorney's fees at this point in time and if he were successful, But if he was representing, if he was representing her all along, wouldn't he be entitled to his Attorney's fees if he was successful on the merits? But the information has already been provided to him anyway, And if he's, if he were just representing himself, Tony Soltani citizen wanting this, that changes his entitlement to attorney's fees, right? That's our position. Your position is if he's just doing it, he's a lawyer, but he's making this request on his own, he wouldn't be entitled to attorney's fees. So that's what we're fighting about here is entitlement to attorney's fees. If he's representing Ms. Ella and he prevails, there's $200 an hour, but if he's doing it for himself zero, is that right? That could be. I, I'm, I'm not sure why. I don't know what his rate is, but I probably, uh, undersold him there. No doubt. Um, in any event, your Honor, the, the, the court also needs to be aware that this could have been cleared up in 30 days of the original order. The court invited him within 30 days to file something, the Record. What would he have had to have filed, assuming he filed an affidavit that said Ms. Bel has been my client since day one. Could have filed a motion. He could have filed an affidavit. The court allowed him and invited him and discussed it throughout the record. There are a number of citations where the court suggests, couldn't you just substitute a party? Couldn't you just, well Substitute a party, substitute himself, which we've heard he felt he could not do because of his obligations of candor to the court. He's also got obligations of anonymity, you know, or, or lack of disclosure to his client. So, um, how could he have remedied this, given those obligations? He could have reissued the request in her name, or he could have reissued a request in the name of a, of a another party, a a Jane Doe. Um, in any event, and yet he was given the opportunity two And a half months, then disappear. And we're starting anew. We're not starting anew. He has the information, But it took 10 and a half months to get it. That's assuming his argument is accurate, which we disagree with. Okay. He was provided information. So do I understand correctly that your position is, if he had just written these letters saying, uh, I represent a client, give me these documents, you wouldn't have an argument. I represent a client who's the ci who's a citizen. Well, they don't even have to be a citizen, do they? They can be from Canada. Well, we don't have to. We may have decide that today, but, but, uh, I'm, I am writing a letter on behalf of a citizen of New Hampshire. I'm not gonna tell you who it is, but I want the stuff then you're saying that's fine. There would be no case. There may not be an issue of standing. We certainly wouldn't be here today if he had indicated that he was acting in a representative capacity and not as himself. Thank you, your Honor. Thank you. Case submitted. Yes.