Kenneth T. Michaud v. Town of Campton Police Department

On January 31, 2021, Appellant filed a Right-to-Know request (the “Request”) with the Town by and through his attorney.

In a letter dated February 3, 2021, Shawn M. Tanguay, counsel for the Town of Campton Police Department, denied Mr. Michaud’s Request. The Town’s stated justification for the denial was New Hampshire Right to Life v. Dir, , New Hampshire Charitable Trusts Unit, 169 N.H. 95 (2016).

The Town of Campton’s position in its February 3, 2021 letter’s closing paragraph was that Mr. Michaud must provide “clarification” and “explanation” regarding his “motives” and “intent” for his Right to Know Request…and implicitly the Campton Town Counsel would decide if it would grant Mr. Michaud’s records request. “As a result, your RSA 91-A request contained within your January 31st. 2021 letter, to the Town of Campton, is hereby DENIED for the reasons stated herein. If your motives for such a request are not in any way connected to your representation of Kenneth Michaud in , please provide further explanation or clarification of the

intent behind such a request for which the Town of Campton shall provide additional review and consideration of same.”

On February 28, 2021 Mr. Michaud’s counsel responded to the Town, through its counsel Shawn M. Tanguy explaining that, among other things, “You have not identified any information Mr. Michaud seeks that is privileged, which was in fact the holding in N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, which you misquote out of context. The holding was that a party cannot obtain privileged material via a FOIA that it would not be entitled to in discovery." (explaining that a party cannot "obtain through... FOIA material that is normally privileged" because this "would create an anomaly in that... FOIA could be used to supplement civil discovery, " which is a construction of FOIA that the Court has "consistently rejected")." N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95, 106 (2016).

The Campton Police Department, represented by Counsel, nonetheless failed to respond to Mr. Michaud’s counsel’s letter or produce any records, let alone the records requested. On June 22, 2021, Appellant’s attorney petitioned the Grafton County Superior Court for relief pursuant to R.S.A. 91-A:7 to obtain the requested records. On October 25, 2021, the first hearing in this matter, the Town’s stated reason for not providing the requested documents was the Town’s contention that Mr. Michaud’s motives were to obtain information related to his pending matter. As evidenced by the Town of Campton’s counsel’s own words, the town failed to comply with the law in failing to evaluate and segregate the requested documents: “THE COURT: Okay. The short answer to my question is the Town hasn't undertaken a evaluation of the request and materials to determine what, if anything, is exempt under the statute as opposed to the overarching objection that this is not producible. (emphasis supplied)

MR. TANGUAY: That's right, Your Honor.” 1 (emphasis supplied) “But certainly if the case is brought to a final resolution, Your Honor, the Town will have no objection to reviewing that discovery request and responding to it –“2

The trial court Order of November 18, 2021 provided, in pertinent part, “1) The Court stays these proceedings until such time as ; 2) In the meantime, if and to the extent that the defendant has not already done so, it shall immediately identify and preserve all records that are the subject of the plaintiff's RSA chapter 91-A requests; ”

The purported reason for the Town’s refusal to comply with the Request ended on December 6, 2021, when the matter against Mr. Michaud was dismissed. At the latest, it expired on January 5, 2022 when the thirty-day deadline for the State to appeal the dismissal expired. As the case had ended, the Town could no longer plausibly claim that Mr. Michaud’s Request was a way of “getting around” discovery rules. On December 6, 2021 the dismissed against Mr. Michaud as a matter of law, and the Town did nothing. On December 27, 2021, the trial court scheduled a telephonic hearing for January 25th, and the Town did nothing.

On January 5, 2022 the deadline for appeal in the 2nd Circuit case expired, and the Town did nothing.

On January 24, 2022, the day before the trial court’s scheduled telephonic hearing, Mr. Michaud’s counsel received an e-mail from Attorney Tanguay:

We have a telephonic conference with the Grafton County Superior Court tomorrow on the RSA 91-A Petition brought by Kenneth Michaud. As I understand it, have been dismissed by. Given that there is no longer a involving the subject matter of the Right-to-Know request, the Town is ready, willing and able to provide a further response to the request for governmental records. Is your client still interested in pursuing this information at this point in time?

Shawn M. Tanguay”

Mr. Michaud’s counsel responded approximately three hours after receipt of Mr. Tanguay’s e-mail that Mr. Michaud was still interested in ‘pursuing this information at this point.’ Even the most charitable reading of RSA 91-A:4 (IV) required that the Town produce the requested records or otherwise respond “within 5 business days of a request”. The Town refused to provide the records requested until after the trial court entered an Order on January 25, 2022, and even then, the Town’s compliance with the trial court-ordered timelines was non-compliant, notwithstanding their stated excuse of insufficient postage.

This case is about whether the Town of Campton should be liable for attorney’s fees and costs under R.S.A. 91-A:8(I). The trial court’s March 23, 2022 Order specifically found that the Town of Campton had “not violated any provision of RSA 91-A”, and that “the lawsuit was not necessary in order to enforce the defendant’s compliance”. Both of these findings were clearly in error.

The statute states, in relevant part, that public bodies “…shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter, provided that the court finds that such lawsuit was necessary in order to enforce compliance with the provisions of this chapter. Fees shall not be awarded unless the court finds that the public body, public agency, or person knew or should have known that the conduct engaged in was in violation of this chapter[.]” R.S.A. 91-A:8(I)

In sum, the statute sets forth two conditions which, if met, trigger a requirement for attorney’s fees and costs to be awarded to Petitioners in response to successful Right-to-Know actions. First, the lawsuit must have been necessary to enforce R.S.A. 91-A. Second, the public body must have known or should have known that their conduct was in violation of law. Mr. Michaud’s January 31, 2021 Right to Know request (the “Request”) was denied by the Town of Campton based on a frivolous interpretation of New Hampshire case law that invented a categorical “discovery circumvention” exception to RSA Chapter 91-A out of whole cloth. Further, this interpretation relies upon unfounded allegations about Mr. Michaud’s motivations for the Request being related to his defense against from the Town, which have since been dismissed and annulled. The Town did not prove (and Mr. Michaud emphatically denied) these claims about his motivations. The Town’s denial, by and through counsel, resulted in a one-year delay in Mr. Michaud receiving the requested records. Despite the ongoing lawsuit, the Request was not fulfilled upon the expiration of the Town’s stated excuse for denying it (the dismissal ) on December 6th, 2021, nor upon receipt from the trial court’s clerk on December 27, 2021 of a Notice of Telephonic Hearing, nor upon expiration of the appeal window in the matter on January 6th, 2022, nor prior to the trial court’s telephonic hearing on January 25, 2022. It was only upon the trial court’s order that the Town fulfilled the Request.

Between Michaud’s counsel’s response letter to the Town’s denial letter and the filing of this action, 114 days expired. Between the filing of the 91-A action and the dismissal of the matter that formed the basis for the Town’s excuse for refusing to fulfill the Request, an

additional 167 days passed. Between the dismissal of that matter and the trial court’s Order, 50 days passed. The Town finally complied with the Request 14 days after that. All told, 372 unnecessary days elapsed from the filing of Mr. Michaud’s Request on January 31, 2021 and Mr. Michaud’s receipt of the court-ordered public records disclosure. The fact that the Town did not produce the requested public records until the trial court’s intervention is unassailable proof that the lawsuit was necessary to enforce the Town’s compliance in this matter.

Motives are not a lawful reason to deny a Right to Know request under RSA 91-A. As the New Hampshire Supreme Court has held, "The requester's motives in seeking disclosure are irrelevant to the question of access, ” Lambert v. Belknap County Convention, 157 N.H. 375, 383 (2008). There are no restrictions on the use of the records, once disclosed. Id. "As a general rule, if the information is subject to disclosure, it belongs to all." Censabella v. Hillsborough County Atty., 171 N.H. 424, 427 (2018).

Where plaintiff petitioned to secure access to records of mayor's industrial advisory committee under this section, and trial court ruled that committee was subject to right-to-know law although certain records of its meetings were exempt from disclosure, plaintiff was substantially successful and thus entitled to recover his counsel fees. Bradbury v. Shaw, 116 N.H. 388 (1976).

Provision for award of attorney's fees is critical to securing rights guaranteed by this section; attorney fee provision was enacted so that public's right-to-know law would not depend upon individual's ability to finance litigation. Bradbury v. Shaw, 116 N.H. 388 (1976).

Appellant’s Right-to-Know lawsuit was clearly necessary in order to enforce compliance with the statute. This is demonstrated by the fact that the Town only produced the records when ordered to by the trial court, and that 372 days that elapsed between the original request and the court-ordered production of the records.

The Town also clearly should have known that their conduct was in violation of the law. This is not a case where overworked officials made an inadvertent mistake; the Town was represented by counsel from day 1. The arguments made in refusing to provide the requested documents were frivolous and without merit.

The trial court erred in refusing to award attorney’s fees and costs, because both statutory criteria were met that require it – the town clearly violated the law with no relevant statutory exemption, and the lawsuit was necessary to enforce the provisions of the Right-to-Know law.

Mr. Michaud hereby requests oral argument before the court in this matter should oral argument aid the court in its consideration of this case.

I hereby certify that each appealed decision that is in writing is being submitted at the time of brief filing and is included in the Appendix below.