ATV Watch v. New Hampshire Department of Transportation
161 N.H. 746
| N.H. | 2011Background
- ATV Watch and Andrew Walters petitioned NH Superior Court for access to DOT records about ATV use on TE-funded rail trails; court conducted in camera review and issued Vaughn index.
- DOT produced some records in 2007 and 2008 but redacted or withheld others under privilege or exemptions; DOT maintained certain documents were not final or were confidential.
- Walters’ July 2007 RTK requests sought all governmental records related to motorized use of TE-funded rail trails; DOT provided some responses and a later unredacted set under seal for in camera review.
- The trial court required a revised Vaughn index (June 24, 2008) and ultimately issued a merits order August 21, 2008 addressing 28 items (A–BB) with various exemptions.
- Petitioners challenged scope of search, timeliness, exemptions (preliminary drafts, notes, attorney-client communications), and denial of fees; court reviewed de novo under RSA 91-A and Part I, Article 8.
- The NH Supreme Court affirmed, upholding the search as adequate, timeliness, specific exemptions for drafts/notes, and denial of attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of DOT search for records | Walters argues search was not reasonably comprehensive. | DOT asserts it conducted a thorough, reasonably calculated search. | Search deemed adequate; evidence supports reasonableness. |
| Timeliness of RTK disclosure | Some records were allegedly late; asks for fee recovery. | DOT complied within five business days and timeframe met by statute. | Timeliness satisfied; fee denial preserved. |
| Exemption for preliminary drafts (RSA 91-A:5, IX) | Drafts should not be exempt once close to final; too broad. | Exemption protects predecisional communications; drafts remain exempt. | Exemption properly applied to drafts and related notes. |
| Attorney-client and work product privileges | Some redactions were improper; headers/source context should be disclosed. | Redactions and privilege claims are proper; disclosures sufficient via Vaughn-style indexing. | Materials properly withheld or redacted; some issues preserved but no reversal. |
| Award of costs and attorney's fees under RSA 91-A:8 | Fees should be awarded since petition was necessary to obtain records. | Fees denied due to lack of causation and timing of representation. | No attorney's fees awarded. |
Key Cases Cited
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index as framework for withholding statements)
- Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540 (N.H. 1997) (discusses use of Vaughn index in NH RTK context)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (FOIA search adequacy and substantial doubt standard)
- ATV Watch v. N.H. Dep't of Resources & Econ. Dev., 155 N.H. 434 (N.H. 2007) (timeliness and scope considerations under RTK)
- Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1 (D.D.C. 1995) (agency must disclose withheld reasons; no Vaughn index required initially)