Joseph A. Brown v. Grafton County Department of Corrections

2. It was not necessary for the trial court to view the HOC video footage under the circumstances………..

1. The trial court did not base its decision to deny Mr. Brown’s Motion to Compel Production of Uncontested Records exclusively on testimonial evidence…………………………………………….

2. The trial court did not err by permitting Grafton County to provide documents through a thumb drive..……………………………………………….

1. The trial court did not deny Mr. Brown access to the adversarial process…………………………..……...

2. The trial court did not solely base its decision to grant Grafton County’s Motion for Summary Judgment on the number of documents produced…………….……………………………….

3. The trial court did not err by finding Grafton County not liable for Mr. Brown’s costs………….….............

SUP. CT. R. 16(11) ….………....................................................

This case arises from Appellant Joseph Brown’s (“Mr. Brown’s”) two separate requests for records from Appellee Grafton County Department of Corrections (“Grafton County”) under New Hampshire RSA ch. 91-A (“RSA 91-A” or “the Right-to-Know Law”) by or on behalf of Mr. Brown in April and October 2020. Appendix (“Apx.”) I at 3. Grafton County timely acknowledged Mr. Brown’s RSA 91-A requests and dutifully provided requested records. However, Grafton County declined to produce requested video footage of specified areas of the House of Correction (“HOC video footage”) because Grafton County believed such video footage was properly exempt from disclosure under RSA 91-A. Mr. Brown, dissatisfied with Grafton County’s extensive production of records, filed a “Petition for Declaratory and Injunctive Relief Pursuant to RSA 91-A” in January 2021 (“Complaint”). In the three Orders which Mr. Brown now appeals, the trial court found that the HOC video footage was exempt from disclosure under RSA 91-A:5, IV (April 8, 2021 Order at Apx. I at 3-15); 1 denied Mr. Brown’s motions to compel and dismissed Counts I-IV of Mr. Brown’s Complaint (November 22, 2021 Order on Pending Motions at Apx. I at 17-32); and granted Grafton County’s motion for summary judgment on the remaining Count V in which Mr. Brown sought to compel Grafton County to produce records (April 18, 2023 Order on Respondent’s Motion for Summary Judgment at Apx. I at 34-41).

The trial court reached its determinations after carefully considering evidence and the record before it, providing Mr. Brown with an opportunity to argue his points, correctly applying all applicable laws and clearly outlining the court’s reasoning. Mr. Brown simply disagrees with the trial court’s holdings in these Orders, and he appealed to the Supreme Court and posed twenty (20) questions for this Court’s appellate review.

The following facts were cited in the trial court’s Orders or relate to the content of documents and information in the record. On April 29, 2020, Mr. Brown, through his Attorney Penny Dean, requested various Department of Corrections records pursuant to RSA 91-A including isolation policies, policies concerning meals for those with dietary restrictions, policies concerning portion sizes, and more. Apx. III at 26-28. 2 Grafton County, through Assistant County Attorney John Bell, responded to this initial request on May 28, 2020 and provided responsive records. Id. at 29-31.

On or about October 27, 2020, Mr. Brown himself requested the same documents, but with an additional 18 categories of records. Apx. III at 32-35. Mr. Brown’s requests included daily meal listings, recipes, all communications between staff regarding nutrition, photographs or videos documenting meal content or size, all grievances filed in 2019 or 2020, the Inmate handbook, and more. Id. Additionally, in this request Mr. Brown sought, as Request Number 13, “[v]ideo from all kitchen or other cameras showing meal preparation from April 29, 2019 to present” and, as Request Number 14, [v]ideo of all cameras showing mealtimes in any unit in which I was resident [sic] from April 29, 2019 to present. Other than during initial intake and quarantine (A-unit) and during construction when all medium inmates were temporarily housed in C -unit, this will almost exclusively be F-unit cameras. Mealtimes to be defined as 0630 -0715, 1130-1215, and 1700-1745.

Id. at 34.

Attorney Bell sent Mr. Brown a letter on November 3, 2020, which stated Attorney Bell was gathering the documents Mr. Brown requested, but that it could take fourteen days to compile everything requested. Apx. III at 36. The letter also stated that certain documents were not going to be produced for various reasons, including vagueness and security reasons. Id. at 36-37. Mr. Brown responded to Attorney Bell’s letter on November 6, 2020, disagreeing with Attorney Bell’s provided reasons for certain records’ lack of disclosure. Id. at 39-40.

Attorney Bell sent Mr. Brown another letter on November 17, 2020 indicating that all the responsive requested records had been compiled and that a CD of the documents would be completed by the end of that week. Apx. III at 41. Attorney Bell also asked if Mr. Brown would like to exclusively receive the documents through the CD or if he would prefer to view hard copies. Id. Mr. Brown responded on November 18, 2020 that he would prefer to review the documents electronically. Id. at 42.

On November 19, 2020, Grafton County provided Mr. Brown with a thumb drive with the responsive records. Apx. III at 43. The next day, Grafton County supplemented its production with an additional thumb drive with documents inadvertently omitted from the first production. Id. at 44-49.

These thumb drives contained over 1, 450 pages worth of documents. Apx. III at 226-27. However, despite the vast number of documents produced, Mr. Brown was not satisfied. See id. at 51-52. Through the end of 2020, Mr. Brown and Grafton County continued discussing the record requests, as Mr. Brown did not believe Grafton County’s production was adequate. See id. at 53-75. On January 25, 2021, Mr. Brown initiated this lawsuit by filing his Complaint. Id. at 76.

At various points, Grafton County supplemented its production as it became aware of further applicable documents or as it further analyzed Mr. Brown’s requests. It supplemented its response with additional medical policy documents on April 6, 2021 (Apx. III at 220-21), additional grievance records on July 21, 2021 (Id. at 223-24), and a prior version of the Inmate Handbook on June 16, 2022 (See id. at 228). As stated above, two of Mr. Brown’s requested records concerned HOC video footage. Apx. III at 34. Grafton County believed these requested records were confidential and exempt from disclosure under RSA 91-A:5. See id. at 37. On February 17, 2021, Grafton County filed a Motion for Expedited Declaratory Judgment to confirm it was not required to produce or retain the HOC video footage. Id. at 76-81. Mr. Brown objected to Grafton County’s motion on February 23, 2021. Id. at 91.

On March 3, 2021, the trial court held a Preliminary Hearing in which Mr. Brown was sworn in and further articulated his arguments regarding the documents Grafton County had produced, including why he thought the HOC video footage should be disclosed. See Apx. IV at 3, 5-6 (the court asking Mr. Brown what he believed was happening, what he was seeking, why, and further asking if there was anything else Mr. Brown wanted to add).

By Order dated April 8, 2021, the trial court granted Grafton County’s motion, stating that the HOC video footage was exempt from disclosure. Apx. I at 14. In doing so, the trial court applied the well- recognized three-step balancing test involving RSA 91-A:5, IV. Apx. I at 6. In applying the test, the court considers 1) whether a privacy interest would be invaded by disclosure, 2) the public’s interest in disclosure, and then 3) balancing “the public interest in disclosure against the government’s interest in nondisclosure and the individual’s privacy interest in nondisclosure.” Id. (citing Union Leader Corp v. Town of Salem. 173 N.H. 345, 355 (2020)). Mr. Brown filed a “Motion for Reconsideration of the Court’s April Eighth Order, ” which the trial court denied. Apx. III at 111- 22 (Mr. Brown’s motion); Apx. I at 16 (trial court’s order). As litigation continued, Mr. Brown filed Motions to Compel (Apx. III at 123-29, 138-40, 141-44), to which Grafton County objected (id. at 130-31, 145-47, 148-50), and to which Mr. Brown then replied (id. at 132- 37, 151-55, 156-61). In these motions, amongst other arguments, Mr. Brown stated his displeasure with the documents provided, and he alleged the records were provided in an unsatisfactory manner because they were not in “original electronic form.” See e.g., id. at 124. Grafton County filed a Motion to Dismiss on August 31, 2022. Id. at 162-65. Following these motions, the trial court held a Hearing on Pending Motions on September 21, 2022. Apx. IV at 29-51. Mr. Brown attended and presented his feedback, and in attendance for Grafton County were Attorney Antonia Barry, then Grafton County Department of Corrections Superintendent Thomas Elliott, and then Grafton County Department of Corrections Lieutenant Nicole Cremo. Id. at 30. At the hearing, Mr. Brown reiterated his concern with the manner in which Grafton County provided its records to him, and Ms. Cremo provided the court with additional information regarding electronic documents. Id. at 47-49. On November 21, 2022, the trial court denied Mr. Brown’s motions (Apx. I at 18) and granted Grafton County’s Motion to Dismiss on four of Mr. Brown’s five claims (id. at 25-31). Specifically, the trial court dismissed: • Count I which alleged it was unlawful for Grafton County to charge Mr. Brown for paper copies of records. Apx. I at 27- 28. The trial court dismissed this count because Grafton County provided electronic records for which it did not charge Mr. Brown. Id. • Count II which requested a declaratory judgment stating Grafton County’s destruction of records was unlawful. Apx. I at 28. It was denied because Mr. Brown lacked standing. Id. • Count III which alleged Grafton County failed to respond regarding whether it was destroying documents. Apx. I at 30.

The trial court denied this count because Mr. Brown never alleged documents had ever actually been destroyed. Id. • Count IV which requested the court enjoin Grafton County from destroying any records similar to the ones he already sought. Apx. I at 30. The court denied this count because Mr. Brown was essentially asking Grafton County to anticipate records he may request, and because RSA 91-A does not require an agency to keep documents forever. Id.

Grafton County moved for summary judgment on February 3, 2023 concerning Count V of the Complaint, Mr. Brown’s request for the court to “compel [Grafton County] to produce all previously requested records.” Apx. III at 187-92. In this motion, Grafton County provided facts demonstrating it did, in fact, produce the records Mr. Brown requested. Id. It outlined exactly which documents had been produced, attached Vaughn indices, and provided an affidavit of Ms. Cremo, who played a major role in gathering the records. See generally id. at 187-230. In his March 5, 2023 objection to Grafton County’s summary judgment motion, Mr. Brown merely argued why he did not agree with Grafton County’s motion, however, he did not provide any facts to dispute Grafton County’s evidence provided in its motion. Apx. III at 231-37.

By Order dated April 18, 2023, the trial court granted Grafton County’s summary judgment motion as to Count V of the Complaint, finding the record showed Grafton County “provided records responsive to petitioner’s requests 1-7, 9, 11, 15, 17, 19 when it provided the group of documents to the petitioner on November 19, 2020” and “[a]s to the remaining requests, [Grafton County] either initially provided responsive records and then supplemented its disclosure, did not find any responsive records, or did not disclose because the Court (MacLeod, J.) concluded that the petitioner’s requested records were exempt from disclosure under RSA chapter 91-A.” Apx. I at 37-38 (internal citations omitted). Mr. Brown filed a Motion to Reconsider the Court’s Order on Respondent’s Motion for Summary Judgment on April 28, 2023. Apx. III at 237-40. After the court denied his motion by Order dated May 9, 2023, Mr. Brown brought this appeal.

Grafton County diligently responded to Mr. Brown’s RSA 91-A requests at issue in this case and provided documents required under RSA 91-A. In the three Orders at issue, the trial court thoroughly analyzed the evidence and the record before it, including Mr. Brown’s arguments and evidence, and correctly applied relevant statutory language and case law. In Mr. Brown’s Brief, Mr. Brown posits undeveloped arguments concerning his disagreement with the trial court’s Orders. However, Mr. Brown fails to establish that the trial court committed any legal error. The law and the evidence weigh decisively against Mr. Brown’s conclusory arguments on appeal and establish that the trial court did not commit legal error when it appropriately determined that Grafton County complied with RSA 91-A and that Mr. Brown was not entitled to the relief he sought.

As a preliminary matter, Grafton County has addressed Mr. Brown’s twenty appellate questions and arguments in thematic order, instead of the order they are presented in Mr. Brown’s Brief, to prevent unnecessary duplication. The questions addressed are identified in each section below.

The resolution of Mr. Brown’s appeal requires this Court to determine several statutory provisions, including certain provisions of the Right-to-Know Law. ACLU of N.H. v. N.H. Division of State Police, 2023 N.H. Lexis 219, *3 (N.H. Supreme Court November 29, 2023) (quoting Grafton County Attorney’s Office v. Canner, 169 N.H. 319, 322 (2016)). The ordinary rules of statutory construction apply to the Court’s review of RSA 91-A. Id. at *3-4. When examining the language of RSA 91-A, this Court ascribes the plain and ordinary meaning to the words used. Id. at *4. The Court will “‘…interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.’” Id. The Court will also interpret “‘a statute in the context of the overall statutory scheme and not in isolation.’” Id. The Court will “‘resolve questions regarding the Right-to- Know Law with a view to providing the utmost information in order to best effectuate the law’s statutory and constitutional objectives.’” Id. Finally, the Court will consider legislative history only if the statutory language is ambiguous. Id. (quoting Reid v. N.H. Attorney Gen., 169 N.H. 509, 522 (2016)).

When reviewing the trial court’s grant of a motion to dismiss, this Court must consider “whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery.” Cluff-Landry v. Roman Catholic Bishop of Manchester, 169 N.H. 670, 673 (2017). It also must presume the plaintiff’s pleadings as true and “construe[] all reasonable inferences in the light most favorable to [him].” Id. However, the court does not assume the truth of the plaintiff’s statements “that are merely conclusions of law.” Id. On appeal, this Court reviews “the trial court’s grant of summary judgment by considering the affidavits and other evidence in a light most favorable to the non-moving party.” Prof’l Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H. 699, 702 (2010) (citing Smith v. HCA Health Servs. of N.H., 159 N.H. 158, 160 (2009)). If this review does not reveal any genuine issues of material fact, i.e., facts that would affect the litigation’s outcome, and if the moving party is entitled to judgment as a matter of law, this Court will affirm. Id. This Court reviews the trial court’s application of law to fact de novo. Id.

Brief at 19-20, 22, 23, 25. He argues the trial court shifted the burden of proof to him, causing him to prove why the documents should not have been exempt from disclosure under RSA 91-A, instead of Grafton County proving why the records should have been exempt. Id. at 20. Mr. Brown also asserts that the court should have weighed his arguments more heavily in the court’s application of the balancing test. Id. at 22, 23, 25.

1. The trial court correctly applied the balancing test As an initial matter, it is undisputed that Mr. Brown requested HOC video footage “form all kitchen or other cameras” about meal preparation and concerning mealtimes for HOC inmates, HOC facilities, and HOC units in which inmates, including Mr. Brown, resided. Apx. III, at 34. To determine whether Grafton County was required to produce the HOC video footage under RSA 91-A, the trial first conducted an in-depth review of RSA 91-A’s express language, its underpinnings of broad public access to governmental records, and Right-to-Know Law statutory construction which entailed broad disclosure and narrowly construed exemptions. Apx. I at 5-6. The trial court then properly applied the three-step balancing test developed under RSA 91-A case law to determine if the HOC video footage was “confidential” and whether the disclosure would constitute an invasion of privacy, rendering the HOC video footage exempt from disclosure under RSA 91-A:5, IV. Apx. I at 6. This balancing test includes determining 1) whether a privacy interest would be invaded by disclosure, 2) the public’s interest in disclosure, and 3) balancing “the public interest in disclosure against the government’s interest in nondisclosure and the individual’s privacy interest in nondisclosure.” Apx. I at 6 (citing Union Leader Corp. v. Town of Salem, 173 N.H. 345, 355 (2020)). When applying this balancing test under established New Hampshire case law concerning RSA 91-A, the trial court looked to federal cases under the Federal Freedom of Information Act (“FOIA”), because New Hampshire courts had yet to address whether HOC video footage would constitute an invasion of privacy. Apx. I at 7. The trial court also cited legal authority which supports New Hampshire courts’ ability to look to other jurisdictions and to FOIA decisions for guidance in the trial court’s analysis. Id. (citing N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95, 103 (2016)). The trial court stated FOIA’s disclosure exemption was “similar to the Right-to-Know Law, ‘because... its exemptions are construed narrowly, with all doubts resolved in favor of disclosure.’” Id. (citing Eil v. U.S. Drug Enf’t Admin., 878 F.3d 392, 397 (1st Cir. 2017)).

In addressing the first step of the balancing test, the trial court found that federal courts had “repeatedly acknowledged individuals incarcerated at correctional facilities have a cognizable privacy interest in protecting their personal information, ” which was consistent with Right-to-Know Law jurisprudence. Apx. I at 10 (internal citations omitted). Regarding the second step, the trial court found the public’s interest in the HOC video footage “low or non-existent” and noted Mr. Brown was conflating hypothetical public interest with his own interests. Id. at 12. Lastly, in analyzing the third step, the court found that “the public interest in disclosing the HOC video footage [was], at best, attenuated and based upon the plaintiff’s subjective desire for information, ” and “the inmates housed at HOC [had] a cognizable privacy interest in nondisclosure that outweighs such a speculative public interest.” Id. at 14. The trial court did not commit any legal error in correctly analyzing all three steps of the applicable balancing test.

2. The trial court did not shift the burden of proof to Mr. Brown Contrary to Mr. Brown’s arguments, the trial court did not shift the burden of proof to Mr. Brown. Rather, the trial court correctly analyzed the purpose of the Right-to-Know Law to ensure the greatest possible public access to records of public bodies, and recognized that such public access to records should not be unreasonably restricted and that New Hampshire courts must resolve RSA 91-A questions with a view to providing the utmost information to best effectuate the statutory and constitutional objective to facilitate access to public documents. Apx. I at 5-6 (citations omitted). In the context of its accurate analysis of this framework for determining RSA 91-A questions, the trial court correctly noted “‘When a public entity seeks to avoid disclosure of material under Right-to Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure.’” Apx. I at 5-6 (quoting Lambert v. Belknap County Convention, 157 N.H. 375, 379 (2008)). The trial court then expressly applied the burden of proof to Grafton County, and not to Mr. Brown, stating, “‘[t]he party seeking nondisclosure has the burden of proof.’” Apx. I at 6 (quoting CaremarkPCS Health, LLC v. N.H. Dep’t of Admin. Servs, 167 N.H. 583, 587 (2015)). In considering the record before it, and in reaching its decision concerning all three steps of the balancing test, the trial court did not shift Grafton County’s burden of proof concerning nondisclosure to Mr. Brown.

3. The trial court demonstrably considered Mr. Brown’s arguments Mr. Brown asserts the trial court should have given his arguments and perspective more weight. App. Brief at 25. The trial court held a hearing on March 3, 2021 at which Mr. Brown was sworn in and argued, and at which the trial court gave Mr. Brown full opportunity to present any information Mr. Brown wished in support of his position. Apx. IV at 3, 5-6.

At the March 3, 2021 hearing and in reaching its decision in its April 8, 2021 Order, the trial court demonstrably considered arguments Mr. Brown raised. Apx. IV at 9-16 (Mr. Brown describing his arguments and the court asking questions); Apx. I at 11 (“Moreover, the plaintiff argues that no privacy interest exists because ‘court records... already reveal details of bail, detentions, and sentences’ of individuals incarcerated at the HOC. However, the mere fact that public records of inmates’ incarceration at the HOC exist does not extinguish their privacy interest.”). The fact that the trial court did not find in Mr. Brown’s favor does not mean that the trial court did not consider and weigh Mr. Brown’s arguments, and the trial court clearly did so.

Brief at 18-19. However, Mr. Brown notes it would be “impossible to list all examples of these failures [to provide sufficient evidence] within a reasonably-sized Brief, as they encompass virtually all of the respondent’s arguments.” Id.

1. The trial court considered undisputed facts The trial court considered evidence and the record before it in reaching its decision concerning the HOC video footage. As noted supra, it is undisputed that Mr. Brown’s requests for HOC video footage involve the interior of the HOC, residential units at the HOC, mealtime preparations within the HOC, and meals served to inmates while at the HOC. Apx. III at 34. Based on these undisputed facts concerning Mr. Brown’s requests, in its Motion for Expedited Declaratory Judgment, Grafton County stated “[p]ublic release of... [the footage] would jeopardize the security of the facility” and “public disclosure of video would constitute an invasion of privacy of the inmates house at the HOC.” At the March 3, 2021 hearing, Grafton County noted that Mr. Brown’s requests covered the “kitchen area and any cameras showing real times in any unit in which [Mr. Brown] was housed.” Apx. IV at 7. Grafton County further noted that providing HOC footage “could jeopardize the security of the facility by providing the angles, the coverage areas of the facility if there are any – you could try and avoid surveillance. It would also provide the routines of staff. It affects the privacy, obviously, of other inmates.” Id. Notably, when Mr. Brown responded to these arguments at the March 3, 2021 hearing, in addressing the HOC video footage issue he did not contest these factual assertions by Grafton County. Id. at 14-16. 3 Based on the record presented, the trial court recognized that “the public disclosure of HOC video footage, which include the layout of the prison facilities, could pose a clear danger to both the inmates housed at the HOC and the law enforcement officers tasked with running the HOC.” Apx. I at 8, fn. 1. These undisputed facts provided sufficient evidence for the trial court to consider in determining whether to exempt the HOC video footage from disclosure.

2. It was not necessary for the trial court to view the HOC video footage under the circumstances In Mr. Brown’s arguments within his Brief pertaining to Questions 3 and 4, Mr. Brown asserts the trial court should have 1) more closely considered the contents of the HOC video footage to determine if a privacy interest was implicated, and 2) if there were privacy concerns, the court should have considered whether the HOC video footage could have been redacted. App. Brief at 19. Mr. Brown references his Motion for Reconsideration of the Court’s April Eighth Order in support of his argument, in which he quotes N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95. Apx III at 114-15.

The trial court did consider the contents of the HOC video footage. Apx. IV at 7-8 (Attorney Barry describing the contents of the requested video footage to the trial court), 14-15 (Mr. Brown describing the requested video footage contents to the court), 18-19 (the Parties discussing the privacy concerns of the inmates). The N.H. Right to Life case does not support the proposition that the trial court erred by not reviewing, or further considering the contents of the, HOC video footage at issue. That case involved video footage from an office of Planned Parenthood Northern New England, which showed individuals walking near the facility and cars driving around the facility’s parking lot. N.H. Right to Life, 169 N.H. at 112. The trial court found that patients and clients had a privacy interest “in the health care providers from whom they choose to seek treatment.” Id. The New Hampshire Supreme Court held that records could contain footage of both patients/clients and individuals not utilizing the facility, whom would not have a privacy interest in the footage. Id. at 112-13. The Court held the records needed to be further reviewed to determine whether privacy interests were implicated, thus exempting them from disclosure. Id. at 113-14. The Court further stated that in the additional proceedings, “the parties may address whether the trial court should require the redaction of the DVD footage so as to allow its disclosure without compromising the privacy interests of... [certain] individuals shown.” Id. at 115 (emphasis added).

In contrast with N.H. Right to Life, this case does not involve individuals in public spaces, without privacy interests. Rather, Mr. Brown specifically requested Grafton County HOC video footage, which involves inmates whose privacy interests protect them from having their every move made public. See Apx. I at 10-11. In this case, the trial court considered the contents of the video footage to appropriately address the privacy interests of inmates as the court did.

did the respondent not immediately begin preserving the requested records, but the respondent engaged in willful and ongoing destruction of the requested records for months, only beginning to preserve records in March of 2021.” Id. Mr. Brown then argues the trial court failed to consider this evidence. Id.

Based on exhibits Mr. Brown submitted with his Complaint, the trial court had evidence on the record before it concerning the parties’ communications about Mr. Brown’s RSA 91-A requests. On November 19, 2020, less than thirty days after Mr. Brown’s initial RSA 91-A request for the HOC video footage, Grafton County informed Mr. Brown that the HOC video footage was exempt from disclosure, and as such, was not producing it. Apx. III at 77. In that communication, Grafton County also pointed out logistic issues with the requested HOC video footage, stating the footage was periodically overwritten if not affirmatively preserved. Id. On February 17, 2021, Grafton County sought declaratory judgment and requested, inter alia, the trial court find that the HOC video footage was exempt from disclosure, and that Grafton County was under no obligation to affirmatively preserve the video footage Mr. Brown requested, under RSA 91-A while the present litigation is pending. Apx. III at 80. For the reasons noted in its April 8, 2021 Order, the trial court granted Grafton County’s motion for expedited declaratory judgment. Apx. I at 14. RSA 91-A:9 states in relevant part “[a] person is guilty of a misdemeanor who knowingly destroys any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter.” RSA 91-A:9 (emphasis added). Although Mr. Brown characterizes Grafton County as “engag[ing] in willful and ongoing destruction of the requested records for months (App. Brief at 27), ” in its communications with Mr. Brown Grafton County actually stated: The Grafton County Department of Corrections (GCDOC) has not destroyed or otherwise made unavailable any requested records.

Video cameras at the Grafton HOC automatically overwrite earlier data to free up space for new recordings as memory on a camera nears capacity. The Plaintiff’s Right-to-Know request of October 2020 included, inter alia, the following requests: 13. Video from all kitchen or other cameras showing meal preparation from April 29, 2019 to present.

14. Video of all cameras showing mealtimes in any unit in which I was an inmate from April 29, 2019 to present. The GCDOC began to affirmatively preserve the requested video in March 2021. As of that time, video ranging from dates prior to May 26, 2020 (on some cameras) to August 20, 2020 (on other cameras), did not exist because it had already been overwritten (the dates vary depending on the quantity of data on individual cameras). All requested video which existed in March 2021 has been preserved.

Apx. III at 184 (emphasis added). Based on the record before the trial court and its correct holdings that the HOC video footage was exempt from disclosure under RSA 91-A:5, IV, there was no basis for the trial court to conclude that Grafton County violated RSA 91-A:9.

from a different jurisdiction, or because Mr. Brown thought certain cases did not relate closely enough to his situation. App. Brief at 22-24. Mr. Brown’s arguments are unavailing because courts may rely on case law from other jurisdictions and case law which is similar—even if it is not an exact match—to the case at hand.

In its April 8, 2021 Order, to assist with the lack of applicable RSA 91-A case law focused on video footage concerning HOC inmates, the trial court looked to other jurisdictions and specifically utilized FOIA cases. Apx. I at 7. As discussed above, although the court looked to the FOIA cases for guidance, the court applied a three-step balancing test under New Hampshire law, and found the HOC video footage was exempt from RSA 91-A. Id. at 6 (citing Union Leader Corp., 173 N.H. at 355 and Lambert v. Belknap County Convention, 157 N.H. at 382-83).

1. New Hampshire courts may consider other jurisdictions’ interpretations of similar legislation When determining RSA 91-A disputes, courts may consider decisions of other jurisdictions interpreting similar acts, including FOIA. See N.H. Right to Life, 169 N.H. at 203; Cansabella v. Hillsborough County Atty, 171 N.H. 424, 426 (2018) (looking to other jurisdictions construing similar statutes for guidance).

Mr. Brown argues the trial court should have relied on N.H. Civ. Liberties Union v. City of Manchester, 149 N.H. 437 (2003), because it “directly addressed visual (photographic, in that case) images of individuals, holding that ‘assuming that there is a privacy interest at stake, the interest is minimal because the photographs do not reveal intimate details of an individual’s life.’” App. Brief at 22-23. However, in addition to the trial court being permitted to follow the direction of other jurisdictions, N.H. Civ. Liberties Union addresses separate issues from the case at hand. In fact, the only similarity is that it involves photographs that could identify individuals. See id. at 440-41. In that case, the court addressed whether the City of Manchester had an obligation to disclose photographs the Manchester Police Department were taking of individuals who the police stopped. Id. Notably, these photographs “were taken with the consent of the subjects” and there were other measures taken to ensure the photographs did not contain other potential sensitive information. Id. at 441. In contrast, Mr. Brown requested HOC video footage, demonstrably without conditioning his request on the consent of individuals in the footage and while acknowledging HOC video footage in some instances could pose a security risk.

2. Courts compare and contrast cases with various similarities and differences with the case at hand Mr. Brown also asserts the trial court should not have relied upon case law that involved other mediums of information in comparison to the HOC video footage. App. Brief at 23-24. Mr. Brown argues the trial court should have relied on the N.H. Right to Life case. Id. However, as discussed above, the DVD footage requested in that case is very different from Mr. Brown’s request for HOC video footage. In that case, this Court held that certain individuals had privacy interests in the footage and others did not. Id. at 114. Here, the requested HOC video footage involves inmates who have a privacy right, in their incarcerated place of residence, to not have their every move disseminated to the public.

Mr. Brown quotes Carlson, Tr. V. Latvian Lutheran Exile Church of Boston and Vicinity Patrons and argues Grafton County was required to “show that the facts [were] sufficiently complete, mature, proximate and ripe to place the party in gear with the party’s adversary, and thus to warrant the grant of judicial relief.” App. Brief at 17 (citing and quoting 170 N.H. 299, 303 (2017)). He further argues Grafton County’s claims were based on hypothetical facts. Id.

Mr. Brown’s reliance on the Carlson case is misplaced. To provide context to the Carlson quote, that case addresses whether the petitioner bringing a declaratory judgment petition had standing. 170 N.H. at 302-03 (“To establish standing to bring a declaratory judgment proceeding under R 491:22, I, a party must show that some right of the party has been impaired or prejudiced. ‘To meet this requirement a party seeking declaratory relief must show that the facts are sufficiently complete....’” (citation omitted)). To have standing, “[a] party must allege a concrete, personal injury, implicating legal or equitable rights, with regard to an actual, not hypothetical, dispute, which is capable of judicial redress by a favorable decision.” Carrigan v. N.H. Dep’t of Health and Human Servs, 174 N.H. 362, 367 (2021) (internal citation omitted).

Mr. Brown thus conflates the standard to bring a declaratory judgment request with the standard for standing. Standing is not a question here. This lawsuit had already commenced with Grafton County named as the Respondent, and Grafton County had a concrete legal interest in addressing whether it was required under RSA 91-A to produce the HOC video footage Mr. Brown requested.

There is no evidence of any procedural error with Grafton County’s Expedited Motion for Declaratory Judgment, and hence the trial court did not err in considering this Motion.

Brown’s Motion to Compel Production of Uncontested Records exclusively on testimonial evidence In his Question 7, Mr. Brown states the trial court’s decision to deny his Motion to Compel was “based upon supposed testimonial evidence by the respondent, when the respondent had not, in fact, provided a witness at any hearing.” App. Brief at 20-21. He then cites to the trial court’s Order on Pending Motions from November 21, 2022. Apx. I at 23. As noted above, Attorney Barry, Mr. Elliott and Ms. Cremo attended the September 21, 2022 Hearing on Pending Motions. Apx. IV at 30.

The September 21, 2022 hearing included Attorney Barry’s argument, but Ms. Cremo also provided certain explanations to the court. Id. at 47-49. As Mr. Brown alludes to, there is no evidence Ms. Cremo was sworn in at the hearing. However, the trial court’s decision was not “based upon” Ms. Cremo’s statements. The court merely stated it “credit[ed] the respondent’s testimony that, if it did not provide a document, that meant that document does not exist....” Apx. I at 23. This was one of the trial court’s multiple reasons to deny Mr. Brown’s Motion to Compel. The trial court also stated it found “the method by which the respondent searched for documents and the fact that they produced thousands of documents to be persuasive in showing that they complied with petitioner’s request” and that “the petitioner’s motion to compel appear[ed] to be based on speculation.” Id. at 22.

The trial court considered all of Mr. Brown’s and Grafton County’s arguments, and the trial court’s denial of Mr. Brown’s pending motions was not based exclusively on information Ms. Cremo provided the court. 2. The trial court did not err by permitting Grafton County to provide documents through a thumb drive In Questions 19 and 20, Mr. Brown alleges that the trial court erred in deciding that 1) Grafton County’s production of records was satisfactory considering Mr. Brown alleges certain documents were printed and scanned, and 2) Grafton County was permitted to require payment for paper copies of documents. App. Brief at 28, 29.

First, Grafton County provided Mr. Brown with its records as he requested them and to the best of its ability. Mr. Brown has continually argued that Grafton County was not providing him with documents in their “native file formats.” App. Brief at 28. At the September 21, 2022 Hearing on Pending Motions, Ms. Cremo provided context as to Grafton County’s record-keeping system. Apx. IV at 47-49. She stated there is a separate program which contains the records Mr. Brown was seeking. Id. at 48. Ms. Cremo further stated, There is no way to put a thumb drive into a computer or get an electronic record out of this application because it’s a specific application on the computer. But what there is available is a button for us to push to convert exactly what is written into a PDF format, and that can then be printed and saved. The reason that it’s scanned and copied to him is because that’s the only way to get it put onto a thumb drive or to get it emailed out to someone, is you would have to download it and then photocopy it.

Id. at 48-49.

Grafton County uses a program which makes it impossible to provide Mr. Brown with the original data he seeks. Mr. Brown has indicated his displeasure with the records Grafton County has produced, but that, in itself, is not reason to vacate or remand this matter.

Second, Mr. Brown did not pay for copies of records. Mr. Brown alleges the trial court should not have dismissed its claim that Grafton County should have been held liable for requesting payment for paper copies. App. Brief at 29. Mr. Brown points to his Complaint and states Grafton County initially demanded $0.25 per sheet of paper to provide records. However, RSA 91-A: 4 permits agencies to charge the cost of providing copies. More to the point, Mr. Brown does not dispute Grafton County provided him a thumb drive of his requested records and that he did not actually pay anything to receive these requested records. See Apx. III at 209, 214.

Grafton County’s Motion for Summary Judgment, on its face, was not a motion to dismiss. Summary judgment is appropriate where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. RSA 491:8-a, III. In deciding whether to grant summary judgment properly supported by an affidavit, the court looks to facts within the record, which includes pleadings and discovery. Id. “To obtain summary judgment, the moving party must show that there ‘is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” O’Malley-Joyce v. Travelers Home & Marine Ins. Co., 175 N.H. 245, 249-50 (2022) (citing and quoting RSA 491:8-a, III). At this stage, “‘[t]he facts stated in the moving party's accompanying affidavits shall be taken to be admitted for the purpose of the motion, unless within 30 days’ the opposing party files contradictory affidavits.” Id. at 250 (citing and quoting RSA 491:8-a, II). “[I]f the opposing party fails to object or to file contradictory affidavits, ‘it is left to the trial judge to apply the correct law to undisputed facts.’” Id. (citing and quoting Drop Anchor Realty Trust v. Ouellette, 133 N.H. 742, 746, 584 A.2d 772 (1990) and RSA 491:8-a, III). Moreover, the court is not to make weight and credibility determinations at the summary judgment stage. Iannelli v. Burger King Corp., 145 N.H. 190, 193 (2000). In contrast, courts deciding a motion to dismiss assess the facts alleged in the petition and determine whether there is a reasonable construction that would permit recovery. Ojo v. Lorenzo, 164 N.H. 717, 721 (2013). Grafton County filed its Motion for Summary Judgment, which contained Ms. Cremo’s affidavit as Exhibit 10, on February 3, 2023. Apx. III at 187, 226. Mr. Brown filed an objection to Grafton County’s motion on March 5, 2023, and while he provided argument as to why he thought the court should not consider Ms. Cremo’s affidavit, he did not provide any material facts to contradict Ms. Cremo’s affidavit. The trial court was required to view all evidence in light of the nonmoving party, but the only factual evidence (as opposed to argument) provided was from Grafton County.

Grafton County’s Motion for Summary Judgment asked the Court to review the facts in the record, find there was no genuine dispute as to any material fact, and find that Grafton County was entitled to judgment as a matter of law. See generally Apx. III at 187-230. In fact, as Mr. Brown notes, Grafton County provided ten exhibits for the trial court to consider when ruling on the facts in the record including Ms. Cremo’s affidavit. This was not merely asking the court to review the facts alleged in the Complaint to determine if the Complaint would permit recovery. Id. at 193- 230. To the contrary, the trial court expressly and accurately addressed the different legal standards which applied to its review of a motion to dismiss in contrast to the trial court’s review of the “instant Motion for Summary Judgment” and then applied the correct summary judgment review standard. Apx. I at 35-36. There is no evidence to suggest the court failed to consider the facts in the record, or only assessed the facts alleged in the Complaint (which itself included and incorporated multiple Exhibits). Concerning Ms. Cremo’s affidavit, RSA 491:8-a, II provides in relevant part, “[a]ny party seeking summary judgment shall accompany his motion with an affidavit based upon personal knowledge of admissible facts as to which it appears affirmatively that the affiants will be competent to testify.” (emphasis added). Grafton County simply complied with these statutory requirements in providing Ms. Cremo’s affidavit with its Motion for Summary Judgment.

Mr. Brown also argued that the trial court “improperly appl[ied] the ‘light most favorable to the non-moving party’ standard.” App. Brief at 21. In his argument, Mr. Brown states that the court “assumed the accuracy” of Grafton County’s assertions. In its Motion for Summary Judgment, Grafton County provided a timeline of events, facts to support its claims, and attached exhibits, including Ms. Cremo’s affidavit, demonstrating the records it provided Mr. Brown. Apx. III at 226. In his Objection, Mr. Brown simply provided argument—and no material facts to the contrary— as to why the court should deny summary judgment. See Apx. III at 231-35. Mr. Brown fails to provide any facts, or even arguments, as to which facts the court allegedly inappropriately weighed in favor of Grafton County. Id. Mr. Brown simply does not agree with the trial court’s decision. Grafton County’s Motion for Summary Judgment was properly filed and followed all requisite rules. The trial court did not consider the weight or the credibility of any of the facts presented to it. Apx. I at 40 (“the Court observes that the trial court does not make credibility determinations or ‘weigh the contents of the parties’ affidavits.’”). It considered the undisputed facts viewing them in the light most favorable to Mr. Brown, decided there was no genuine issue of material fact, and correctly found that Grafton County was entitled to summary judgment as a matter of law. See Apx. I at 41.

1. The trial court did not deny Mr. Brown access to the adversarial process In his Question 6, Mr. Brown asserts the trial court failed to hold hearings on various motions, and he specifically argues he was entitled to cross examine Ms. Cremo concerning her affidavit provided with Grafton County’s Motion for Summary Judgment. App. Brief 19-20. Mr. Brown is conflating summary judgment proceedings with trials, and based on the summary judgment statute and standard of review discussed above, Mr. Brown did not have the right to cross examine anyone at the summary judgment proceeding.

2. The trial court did not solely base its decision to grant Grafton County’s Motion for Summary Judgment on the number of documents produced In his Question 16, Mr. Brown asserts that the trial court ruled in Grafton County’s favor because of the amount of documents Grafton County already produced, and that the number of documents produced should not have impacted the court’s decision. App. Brief at 26. Despite Mr. Brown’s characterization, the court’s decision was not based on how many documents Grafton County produced. Instead, the trial court concluded Grafton County completed a reasonable and adequate document search based on the record, as shown through the comprehensive nature of the documents produced, and Grafton County’s confirmation that the search did not produce any responsive documents.

To place the trial court’s disposition of Count V of Mr. Brown’s Complaint in context, prior to its Order granting summary judgment, the trial court addressed this issue of records production when it denied Mr.

Brown’s Motion to Compel in which he sought documents he believed Grafton County was withholding. Apx. I at 17. The trial court analyzed this issue by first addressing whether Grafton County’s document search was adequate. Id. at 21 (citing ATV Watch v. New Hampshire Dep’t of Transp., 161 N.H. 746, 753 (2011)). The court (MacLeod, J.) held the search was adequate, stating: At the hearing, the respondent explained that it searched for documents requested by the petitioner in its database, which holds the corrections facility documents that the petitioner requests. The respondent represented that it searched for and provided all documents requested by the petitioner. While the court notes that the respondent has not provided affidavits or other specific information about their search process, the court finds the testimony provided at the hearing and the fact that the respondent produced thousands of documents persuasive. Apx. I at 21 (emphasis added). Once Grafton County was able to meet its burden to show its search was reasonable, “the burden shift[ed] to the requester to rebut the agency’s evidence by showing that the search was not reasonable or was not conducted in good faith.” Id. (citing ATV Watch, 161 N.H. at 753).

In denying Mr. Brown’s Motion to Compel, the trial court correctly applied the ATV Watch court’s guidance about the reasonableness of a governmental entity’s search for records. Apx. I at 21. The trial court’s reason for ruling in Grafton County’s favor was not solely because of the number of documents it had produced, as Mr. Brown alleges. The court held Grafton County’s search was adequate, “[g]iven that the respondent disclosed a large volume of documents already and explained through testimony that it provided the documents found that were responsive to petitioner’s request, the court finds that the respondent conducted a search reasonably calculated to uncover all relevant documents.” Id. After this holding, Mr. Brown filed a Motion to Reconsider, which was denied. In response to Grafton County’s subsequent Motion for Summary Judgment, Mr. Brown maintained he “already demonstrated in other pleadings that the Respondent has unlawfully withheld records, ” referencing his Motion to Reconsider the trial court’s decision to deny his Motion to Compel. Id. at 39. He further argued Grafton County did not produce an affidavit stating that no records were omitted from production. Id. The trial court (Bornstein, J.) held: This contention, however, also does not overcome the evidence presented to the Court showing that the respondent provided hundreds, if not thousands, of pages of records in order to fully respond to the petitioner’s request. Accordingly, the Court finds th at the record presented, namely the exhibits and affidavit of Nicole Cremo provided by the respondent in addition to the exhibits provided by the petitioner that are attached to his Petition shows without dispute that the respondent complied with RSA chapter 91-A.

Id. The trial court thus used the number of documents produced as evidence that Grafton County adequately searched for all documents requested and provided everything requested. Moreover, Mr. Brown did not provide sufficient evidence to suggest the contrary.

3. The trial court did not err by finding Grafton County not liable for Mr. Brown’s costs In question 13 of his Brief, Mr. Brown asserts that, although the trial court granted summary judgment for Grafton County, he should have been entitled to fees. App. Brief at 24. Citing to relevant case law, the trial court found that because Grafton County did not violate RSA chapter 91-A, “the lawsuit was not necessary to make information available and the petitioner is not entitled to attorney’s fees.” Apx. I at 41. The trial court committed no legal error in reaching this conclusion.

Grafton County respectfully requests that the Court affirm the trial court’s grant of declaratory judgment, dismissal, and summary judgment to Grafton County.

The undersigned counsel certifies that this Brief, exclusive of pages containing the Table of Contents, Table of Cases, and Table of Statutes, contains 9176 words.