New Hampshire Right to Life & a. v. Director, New Hampshire Charitable Trusts Unit & a.
143 A.3d 829
N.H.2016Background
- New Hampshire Right to Life and Jackie Pelletier requested records from multiple State agencies (AG, Charitable Trusts Unit, Board of Pharmacy, DHHS) concerning Planned Parenthood of Northern New England (PPNNE) and the Feminist Health Center under the Right-to-Know Law (RSA ch. 91-A).
- Requests sought: limited retail drug distributor license renewals, emails and other communications (including three DVDs of security-camera footage), and certain financial documents; the State produced some material and withheld/redacted other material citing RSA 91-A:5 exemptions, RSA 318:30, and privileges.
- Plaintiffs filed suit after partial production; the trial court conducted an in camera review of ~1,500 pages and three DVDs, ordered some disclosure, and upheld many redactions/withholdings; plaintiffs appealed.
- Main categories contested on appeal: (1) documents withheld as attorney work product/attorney-client privileged (including a draft declaration and multiple email chains), and (2) materials withheld on invasion-of-privacy grounds (security-DVDs, license-application employee names, and clinic financials).
- The Supreme Court of New Hampshire applied federal work-product principles (comity with pending federal litigation) to the claimed work-product materials, and the state's three-part privacy balancing test (privacy interest, public interest, balance) to the privacy claims; it affirmed, reversed, vacated, and remanded in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents prepared for pending federal buffer-zone litigation are exempt as attorney work product | Documents (Gallagher declaration; emails) are factual witness statements not protected; any privilege waived by sharing with non-party clinics | Documents were prepared at AG direction for litigation; work-product protects drafts, attorney communications, and non-lawyer work at attorneys’ direction | Applied federal law: Gallagher declaration and emails were work product and properly withheld; emails to other state AGs were opinion work product and protected |
| Whether security-camera DVDs showing sidewalk activity must be disclosed or withheld for privacy | No privacy interest in what is visible from a public sidewalk; DVDs should be public | Disclosure would invade patients’ and non-protesting individuals’ privacy and could reveal clinic attendance; safety risk to staff/patients | Privacy interest exists for non-protesting individuals; trial court’s withholding vacated; remanded for fact-finding on identities and possible redaction options |
| Whether names of clinic staff and contractors on Board license applications must be disclosed | Names needed to scrutinize government action, spending, and regulatory compliance | Clinics are private; employees have privacy and safety concerns; public interest in specific identities is attenuated | Court upheld redaction of individual names (professional designation may be disclosed); privacy interest outweighs speculative public interest |
| Whether clinic financial amounts and other clinic documents must be disclosed | Financials are public-interest material showing use of state funds | Financials are commercial/competitive and primarily reflect private clinic operations | Financial documents (Feminist Health Center monetary amounts) properly redacted as confidential commercial information; other non-monetary redactions (names) also upheld |
| Whether State’s initial responses and specificity met RSA 91-A requirements | State provided insufficient detail (Vaughn-style index) and late table of contents, violating RSA 91-A | RSA 91-A:4 requires a written denial with reasons; a full Vaughn index is not required; State complied | Court held State’s initial responses met statutory requirements; plaintiffs’ challenge to late table-of-contents was not preserved for review |
| Whether plaintiffs are entitled to attorney’s fees and costs | Plaintiffs argue litigation was necessary and State knew/should have known responses violated RSA 91-A | State provided statutory citations and privileges; did not act with knowledge of violation; production was not delayed such that litigation was necessary | Denied attorney’s fees and costs: court found lawsuit was not necessary to obtain the information and State did not know its conduct violated the statute |
Key Cases Cited
- CaremarkPCS Health v. N.H. Dep’t of Admin. Servs., 167 N.H. 583 (interpreting Right-to-Know statutory construction and disclosure presumptions)
- Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106 (three-step privacy analysis under RSA 91-A:5)
- FTC v. Grolier Inc., 462 U.S. 19 (work-product/attorney materials exempt from FOIA disclosure)
- Hickman v. Taylor, 329 U.S. 495 (foundational attorney work-product doctrine)
- United States v. Nobles, 422 U.S. 225 (work product covers non-lawyer materials prepared at attorney direction)
- In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007 (First Circuit distinction between opinion and ordinary work product)
- A. Michael’s Piano, Inc. v. F.T.C., 18 F.3d 138 (work product factual material treated as exempt under FOIA principles)