Kenneth T. Michaud v. Town of Campton Police Department

This might be a compelling argument in a case where a litigant attempted to use RSA 91- A to circumvent discovery, defined in these cases as attempting to obtain privileged information or items that would be otherwise be shielded from disclosure by court rules. But that is simply not the case here. The Town’s brief does not appear to address this disconnect in any way. It simply repeats conclusory statements that Mr. Michaud’s was “seeking […] discovery material” and attempting to “circumvent the rules of discovery”. Mr. Michaud and his counsel has emphatically and repeatedly stated that his motives were unrelated to – in correspondence with the Town, during hearings at the trial court, in subsequent pleadings, and in this Court. The Town has at no time presented evidence to the contrary, other than the fact that some items from the Right-to-Know requests overlapped with what was requested by Mr. Michaud’s counsel in the discovery process. The trial court did not rule that Mr. Michaud was attempting to circumvent discovery, and it did not rule that the material Mr. Michaud was seeking was exempt from discovery. It simply stayed the

case pending which at the time of the trial court’s Order on November 17, 2021, was a mere 20 days away. (Exhibit A) To briefly restate the circumstances that led to this Right-to-Know case, with added context relevant to rebutting the Town’s argument (supplemented in the Appendix):

months of him purchasing a home in Campton (co-located in the Waterville Estates Village District) and shortly after he began to exercise his First Amendment rights to speak against the behavior of government officials in both localities (infra, Exhibits B & C).

Mr. Michaud’s counsel filed a Right-to-Know request at his request on January 31, 2021. The Town denied this request, claiming it was an attempt to “circumvent” discovery.

Still, the Town did not fulfill Mr. Michaud’s Right-to-Know request until after the Grafton Superior Court ordered it to do so. Mr. Michaud found documents of interest to him in this court-ordered disclosure, outlined below and in the Appendix, which were not privileged or relevant to. These documents were preserved on the record with the trial court as part of Mr. Michaud’s Motion for Reconsideration. Under ordinary circumstances, it is not difficult to imagine why an individual might want to obtain non-privileged documents and communications about him by a government official,

. Under the circumstances that led to this case, the desire of Mr. Michaud to obtain communications about him is even more obvious. Such documents would not be relevant to and thus would not be disclosed in discovery, so they could not be the result of an attempt to “circumvent” discovery.

Mr. Michaud obtained several examples of documents that meet these criteria. Both involve Mr. Michaud’s First Amendment protected speech. First, in response to the Grafton Superior Court’s 91-A order, the Town disclosed an email exchange between the Campton Town Administrator, Carina Park and the Campton Police Chief, Kevin Foss dated November 21, 2020, two weeks before the Town’s initiation against Mr. Michaud. In this exchange, Ms. Park forwarded an email from Mr. Michaud regarding mask enforcement at the town’s transfer station to Chief Foss. “He’s at it again…”, wrote Ms. Park. “At least he was able to get a resident dump sticker…”, replied Chief Foss. “ ”, replied Ms. Park. (Exhibit B) This exchange was not a part of discovery because it did not pertain to. But it certainly was the type of exchange Mr. Michaud was looking for when he directed his attorney to request “[a]ny email/video/audio or other recordings or information in whatever format held pertaining to Ken Michaud”.

Another example of a document disclosed in response to the Grafton Superior Court Order was an email exchange dated January 29, 2021, between Chief Foss and a Waterville Estates Village District (WEVD) Commissioner, in which Mr. Michaud requested the resignations of all three commissioners for “gross incompetence and misappropriation of funds”

(Exhibit C). Mr. Michaud’s attorney made the Right-to-Know request, which was denied by the Town and which led to this case, on January 31, 2021, two days after this email exchange. While this email was not relevant to discovery, it also was not in any way privileged or exempt from the RSA 91-A. Certainly, Mr. Michaud’s attempt to obtain it was not an attempt to “circumvent” discovery. And it would certainly have been relevant to Mr. Michaud’s political activities that his request to hold political figures accountable led to a report to police. Mr. Michaud was regularly attending WEVD public meetings at the time, and some of these officials were running for re-election.

II. The Town Does Not Propose a Workable Rule for a Categorical Discovery Exception This Court’s current rule is clear and equitable: the Right-to-Know law cannot be used by an active litigant to obtain information that would be privileged or prohibited from disclosure by a court’s discovery rules. But no such information was sought in this case, nor was any privileged information ultimately obtained from the Right-to-Know request after had concluded. The Town appears to want this Court to create a categorical exception to the Right-to-Know law for all active litigants that could quickly swallow the rule that public records belong to the public, which would sow significant confusion. It is unclear exactly how such a rule would operate in practice. Would any individual involved in any court action involving a public entity in the state of New Hampshire be categorically prohibited from filing a Right-to-Know request with that entity for documents about themselves for the duration of those proceedings? If Person A filed a Right-to-Know request with a town regarding Person B, could Person A then disclose those documents to Person B without sanction? What if Person B enticed Person A to make the request? Would public

entities have free reign to inquire into the motives of any request that touches on any active litigant, to determine whether the Right-to-Know request was an attempt to “circumvent” discovery by having a friend or acquaintance request them? This would require overturning Lambert v. Belknap County Convention, 157 N.H. 375 (2008). What if the inquiry was made by the press on a matter of public significance, but the reporter was tipped off by the litigant and forwards the documents to the litigant? This is not a workable standard, nor is it one that comports with the law.

IV. The Case Law Was Clear, and the Town’s Denial was Illegal and Unreasonable Pursuant to the Known Legal Authority Guiding this Situation This Court’s rulings, and relevant federal case law on FOIA, is and has been crystal clear: litigants cannot use the Right-to-Know law to obtain privileged information or information that is protected from discovery by court rules to gain an advantage in litigation. There is no evidence that such “circumvention” was a motivating factor in this case, and substantial evidence it was not. The most compelling evidence that Mr. Michaud’s Right-to-Know request was not intended to circumvent discovery is that no material unredacted documents were ultimately produced in response to the request that would have circumvented discovery or produced an advantage for Mr. Michaud, and several documents were produced that were relevant to Mr. Michaud and were entirely unrelated to

The Town’s position that the state of the law was unclear and that their denial of Mr. Michaud’s Right-to-Know request was an error made in good faith is belied by both the circumstances this case, and the fact the New Hampshire Right to Life v. Director, New Hampshire Charitable Trust Unit case was decided 6 ½ years ago, was dicta, and does not appear to have sowed confusion in any other town. It is further belied by the fact that the Town failed to evaluate and segregate the requested documents, per opposing counsel’s own words. 1 Motives are not a lawful reason to deny a Right to Know request under RSA 91-A. "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).

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.

I hereby certify that a copy of the above Motion to Mark Appellee's Brief as Confidential, Pending Filing of Motion to Seal has been forwarded to Shawn M. Tanguay, attorney for the Appellee, via the Court’s electronic filing system. Signed under the pains and penalties of perjury on 12/15/2022

Kenneth Michaud