The plaintiffs, New Hampshire Right to Life and Jackie Pelletier, appeal orders by the Superior Court (Mangones, J.) granting in part and denying in part their petition for an order requiring the defendants, the Director, Charitable Trusts Unit (CTU), the Office of the New Hampshire Attorney General (AG), the New Hampshire Board of Pharmacy (Board of Pharmacy), and the New Hampshire Department of Health and Human Services (DHHS), collectively referred to as “the State,” to produce, under the Right-to-Know Law, without redaction, all documents and other materials responsive to the plaintiffs’ prior requests. See RSA ch. 91-A (2013 & Supp. 2015). The trial court ordered the State to produce certain documents, but upheld the State’s withholding or redactions of other documents because it determined that they were exempt from disclosure under the Right-to-Know Law. See RSA 91-A:5, IV (2013). On appeal, the plaintiffs argue that in so deciding and in denying their associated requests for attorney’s fees and costs, the trial court erred. We affirm in part, reverse in part, vacate in part, and remand.
The relevant facts follow. New Hampshire Right to Life “is a New Hampshire non-profit organization opposed to government support, by taxpayer subsidies, of medical clinics that provide abortion services.”
Appeal of N.H. Right to Life,
The first request, sent on July 14, 2014, sought “copies of all of [PPNNE’s] 2014-2015 [Limited Retail Drug Distributorship] licenses for its six New Hampshire clinics” and “any documents related to these clinics either sent or received by the Board [of Pharmacy].” (Bolding omitted.)
See
RSA 318:42, VII, :51-b (2015). PPNNE has operated in New Hampshire for
a number of years as a licensed limited retail drug distributor pursuant to a contract with DHHS.
Appeal of N.H. Right to Life,
The State responded to this request on July 31, 2014, by producing certain documents and withholding others as “exempt from disclosure under RSA 91-A:5 and RSA 318:30, I.” See RSA 91-A:5 (Supp. 2015) (setting forth categories of information that are exempt from disclosure under the Right-to-Know Law); see also RSA 318:30, I (2015) (exempting from disclosure, under the Right-to-Know Law, Board of Pharmacy investigations and information discovered pursuant to such investigations “unless such information becomes the subject of a public disciplinary hearing”). The State’s decision to exempt certain documents from disclosure pursuant to RSA 318:30, I, is not at issue in this appeal.
The second request, sent on July 28, 2014, sought “all documents, no matter what form, including but not limited to, printed documents, electronic documents, e-mails, or any other form of documents,” that constitute: (1) communications “by, from or regarding” certain reproductive health centers and individuals representing such centers; (2) “[a]ny and all documents in the possession of the [AG] regarding any reproductive health facility”; (3) certain specific materials, including “DVDs containing security camera footage from July 10, 2014 and July 17, 2014 outside the Manchester clinic”; and (4) “[a]ny and all documents in the possession of the [AG] regarding abortion clinic buffer
The third request, made on September 11, 2014, sought specified financial information about certain reproductive health clinics. The State produced some information, but, with regard to the 2010 financial statements of the Joan G. Lovering Health Center (Feminist Health Center), it redacted certain monetary amounts.
The plaintiffs filed the within complaint for injunctive relief, attorney’s fees, and costs on October 20, 2014. Subsequently, the State provided to the trial court for in camera review approximately 1,500 pages of documents and three DVDs. The documents and materials provided to the trial court comprised those that had been produced to the plaintiffs and those that had been withheld from disclosure. The State also provided to the court and to the plaintiffs a “Table of Contents,” listing the previously-produced documents with corresponding “bates-stamp” numbers 1 and the withheld documents with corresponding bates-stamp numbers. Following its in camera review of the information withheld or redacted, and after holding a hearing, the trial court ordered the State to produce certain documents and information, but upheld most of the State’s decisions to redact or withhold. This appeal followed. The parties have not provided a transcript of the trial court hearing as part of the appellate record. The record does not indicate whether the hearing was an evidentiary hearing.
After this appeal was filed, we ordered the plaintiffs to identify, by bates-stamp number, information that had been submitted to the trial court for in camera review, but which they assert should have been, and was not, disclosed. In a January 12, 2016 letter, the plaintiffs identified the following as the documents and materials “at issue, addressed and argued in the Briefs”: (1) three DVDs containing security footage of the area outside of the Manchester office of PPNNE; and (2) documents bates-stamped W305-06 (declaration of Meagan Gallagher), W1475-76 (e-mail communications between AG and clinic officials), W36-294 (e-mail communications between AG and such offices in other states), W33-35 (correspondence regarding the DVDs), P31-56 (license renewal applications filed with the Board of Pharmacy), and P105-20 (documents related to the Feminist Health Center).
Thereafter, we ordered the superior court to transfer to this court the unredacted versions of the documents and materials so identified. Our analysis in this case is limited to the DVDs and documents that the plaintiffs identified by bates-stamp number in their January 12, 2016 letter. Although, in their January letter, the plaintiffs also objected to the State’s claim of work product and attorney-client privilege for unknown withheld documents, they have not briefed that issue, and, accordingly, we deem it to be waived on appeal.
See Aubert v. Aubert,
II. Analysis
A General Law and Standard of Review
Resolutiоn of this case requires that we interpret the Right-to-Know Law. “The ordinary rules of statutory construction apply to our review of
the Right-to-Know Law.”
CaremarkPCS Health v. N.H. Dep’t of Admin. Servs.,
The purpose of the Right-to-Know Law “is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” RSA 91-A:1 (2013);
see CaremarkPCS Health,
When a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure.”
Id.
at 649. We review the trial court’s statutory interpretation and its application of law to undisputed facts
de novo. 38 Endicott St. N.,
At issue in this case is RSA 91-A:5, which identifies materials that are exempt from disclosure under the Right-to-Know Law, including “confidential, commercial, or financial information . . . and other files whose disclosure would constitute invasion of privacy.” RSA 91-A:5, IV. The plaintiffs contend that the trial court misapplied RSA 91-A:5, IV when it upheld the State’s withholding of information that the State contended: (1) comprised attorney work product; or (2) if disclosed, would constitute an invasion of privacy.
B. Information Withheld as Attorney Work Product
The information that the State withheld on work product grounds is related to a pending federal civil rights action brought
The documents and materials at issue were created in anticipation of a preliminary injunction hearing in that litigation. However, the hearing never took place because the litigation was stayed before it could be held. Pelletier, a plaintiff in this case, is also a plaintiff in the buffer zone litigation. See Verified Complaint, supra at 1.
The plaintiffs specifically challenge the trial court’s determination that the following are exempt from disclosure because they constitute attorney work product: (1) a signed, undated draft declaration of Meagan Gallagher, President and Chief Executive Officer of PPNNE, (the Gallagher declaration) (W305-06); (2) July 2014 e-mail messages between the AG and Jennifer Frizzell, Vice-President for Public Policy of PPNNE, and between the AG and Dalia VIdunas, the Executive Director of the Concord Feminist Health Center (W1475-76); and (3) e-mail messages between the AG and counterparts in other States (W36-294).
1. Summary of Work Product Law
The parties do not dispute, and we agree with the trial court, that attorney work product, like communications protected by the attorney-
client privilege, falls within the Right-to-Know Law еxemption for “confidential” information. RSA 91-A:5, IV;
see Prof. Fire Fighters of N.H. v. N.H. Local Gov’t Ctr.,
The trial court applied New Hampshire common law to determine whether the challenged documents were subject to the work product doctrine. In so doing, the trial court erred. The buffer zone litigation was pending in the Federal District Court for the District of New Hampshire under that court’s federal question jurisdiction.
See
Verified Complaint,
supra,
at 8. Accordingly, federal common law governs whether the documents challenged by the plaintiffs are subject to the work product doctrine.
See Gargiulo v. Baystate Health, Inc.,
The work product doctrine safeguards the work of an attorney done “in anticipation of, or during, litigation from disclosure to the opposing party.”
State of Maine v. U.S. Dept. of Interior,
298 F.8d 60, 66 (1st Cir. 2002);
see Hickman v. Taylor,
Outside the FOIA context, federal courts “distinguish between ‘opinion’ work product and ‘ordinary’ work product,” and they “typically afford ordinary work product only a qualified immunity, subject to a showing of substantial need and undue hardship, while requiring a hardier showing to justify the production of opinion work product.”
In re San Juan Dupont Plaza Hotel Fire Litigation,
However, for FOIA purposes, the distinction between “opinion” and “ordinary” work product is immaterial.
See FTC,
We adopt this paradigm in the context of the Right-to-Know Law based upon similar concerns that the Right-to-Know Law could be used to circumvent civil discovery rules. Indeed, at oral argument, the plaintiffs agreed that the Right-to-Know Law should not be used to circumvent civil discovery rules. Thus, we hold that the test for disclosure under the Right-to-Know Law “is whether the documents would be routinely or normally disclosed upon a showing of relevance.”
FTC,
2. Gallagher Declaration
The Gallаgher declaration contains factual assertions about PPNNE, interpretations of RSA 132:38 (the buffer zone statute), statements about Gallagher’s authority within PPNNE, and statements about PPNNE’s intentions with regard to creating buffer zones as authorized by statute. The record on appeal establishes that the declaration was prepared at the direction of attorneys at the Attorney General’s Office for use in the buffer zone litigation.
Applying state law, the trial court found that the Gallagher declaration is subject to the work product doctrine because, although it “includes some purely factual information,” it “also contains [Gallagher’s] policy statements and opinions.”
See State v. Chagnon,
We conclude that the Gallagher declaration is subject to the work product doctrine under federal law, and, therefore, agree with the trial court that it is exempt from disclosure under the Right-to-Know Law.
See Doyle v. Comm’r, N.H. Dep’t of Resources & Economic Dev.,
Contrary to the plaintiffs’ assertions, the
entire
Gallagher declaration is exempt from disclosure under the Right-to-Know Law, even though it arguably contains some “purely factual information.” Federal courts have held that the work product doctrine encompasses purely factual information.
See Norwood v. F.A.A.,
Moreover, even if the Gallagher declaration constitutes only “ordinary” work product, and, therefore, would be discoverable under federal rules of civil procedure upon a showing of substantial need, the Right-to-Know Law does not mandate disclosure.
See A. Michael’s Piano, Inc.,
The plaintiffs further assert that any privilege was waived when PPNNE “shared” the Gallagher declaration with the AG, which did not represent PPNNE in the federal litigation. As previously discussed, however, PPNNE prepared the declaration at the direction of the AG. Moreover, although PPNNE was not a party in the buffer zone litigation, the attorney general was one of the defendants. In this context, there was no “waiver” of the work product doctrine.
See Nobles,
3. E-mail messages to and from, Frizzell and Vidunas
The July 2014 e-mail messages between the AG and Frizzell concerned the preparation of the Gallagher declaration. The e-mail messages between the AG and Vidunas concerned the preparation, for the buffer zone litigation, of an affidavit of another individual. The trial court found that the e-mail messages were properly withheld because they were subject to the attorney-client privilege and/or because they constituted attorney work product.
The plaintiffs conclude, without any analysis, that the messages do not constitute attorney work product. The plaintiffs contend that, evеn if they do constitute attorney work product, “any privilege [was] waived” because they were communications between the AG and individuals who are not parties to the buffer zone litigation. We disagree. The e-mail messages were created for the buffer zone litigation either by attorneys at the Attorney General’s Office or at their direction. The subject of the e-mail messages was the preparation of pleadings for that litigation. The e-mail messages, thus, constituted attorney work product, and, in this context, no “waiver” occurred.
See Nobles,
4. E-mail messages to and from AG and Offices of Attorneys General in Other States
The e-mail messages at issue, which were exchanged between the AG and offices of attorneys general in other States, were created in connection with a case then pending before the United States Supreme Court:
McCullen v. Coakley,
The trial court found that these e-mail messages were properly withheld as “confidential” information because they constituted attorney work
product and/or privileged attorney-client communications. RSA 91-A:5, IV. Because these e-mail messages contain the “mental impressions, conclusions, opinions or legal theories of an attorney,”
In re San Juan Dupont Plaza Hotel Fire Litigation,
To the extent that the plaintiffs argue that any work product privilege was waived because “the state of New Hampshire did not ultimately join other States in filing an amicus brief’ in the
McCullen
litigation, we disagree. “The prevailing rule is that, because work product protection is provided against adversaries, only disclosing material in a way inconsistent with keeping it from an adversary waives work product protection.”
Bourne v. Arruda,
Civil No. 10-cv-393-LM,
C. Information, Withheld on, Privacy Grounds
The plaintiffs next assert that the State wrongfully withheld certain information on privacy grounds. The Right-to-Know Law specifically exempts from disclosure “files whose disclosure would constitute invasion of privacy.” RSA 91-A:5, IV. This section of the Right-to-Know Lаw “means that financial information and personnel files and other information necessary to an individual’s privacy need not be disclosed.”
Lamy v. N.H. Public Utils. Comm’n,
We engage in a three-step analysis when considering whether disclosure of public records constitutes an invasion of privacy under RSA 91-A:5, IV. Id. First, we evaluate whether there is a privacy interest that would be invaded by the disclosure. Id. If no privacy interest is at stake, the Right-to-Know Law mandates disclosure. Id. Whether information is exempt from disclosure because it is private is judged by an objective standard and not by a party’s subjective expectations. Id.
Next, we assess the public’s interest in disclosure. Id. Disclosure of the requested information should inform the public about the conduct and activities of their government. Id.
Finally, we balance the public interest in disclosure against the government interest in nondisclosure and the individual’s privacy interest in nondisclosure.
Id.
“When the exemption is claimed on the ground that disclosure would constitute an invasion of privacy, we examine the nature of the requested document and its relationship to the basic purpose of the Right-to-Know Law.”
N.H. Civil Liberties Union v. City of Manchester,
The purpose of the Right-to-Know Law is to provide the utmost information to the public about what its “government is up to.”
Union Leader Corp. v. City of Nashua,
“The party resisting disclosure bears a heavy burden to shift the balance toward nondisclosure.”
The plaintiffs specifically challenge the State’s decision to withhold the following on privacy grounds: (1) three DVDs; (2) correspondence regard ing the DVDs (W33-35); (3) the names of employees contained in license renewal applications filed with the Board of Pharmacy (P31-56); and (4) information contained in documents from the Feminist Health Center (P105-20).
1. DVDs
The DVDs contain footage from several security cameras at the Manchester office of PPNNE. According to the State, it obtained the DVDs from PPNNE in connection with the buffer zone litigation.
The DVDs show three different views of the sidewalk adjacent to the PPNNE parking lot on July 10, 2014, and July 17, 2014, for a few hours on each day. The DVDs show individual protestors walking on the sidewalk. The protestors are shown talking to individuals, who appear to be in the parking lot and are not seen on camera. The parking lot is partially bordered by a fence. The protestors are shown walking on the sidewalk next to the parking lot. The DVDs do not show protestors in the parking lot or near the building entrance. The building entrance is on the opposite side of the parking lot from the sidewalk on which the protestors are shown walking.
The DVDs also show passersby walking on the sidewalk who have no apparent connection to PPNNE. Occasionally, individuals are shown walking into the parking lot, however, the nature of their connection to PPNNE, if any, is not obvious. The only individuals whose relationship to PPNNE is readily ascertainable from the DVD footage are the protestors.
The DVDs also show vehicles that are entering, exiting, or parked in the lot or adjacent to the lot. The license plates of some, but not all, of those vehicles are visible. The DVDs show only the entrance to the parking lot. They do not shоw the building entrance.
The trial court concluded that “the DVDs should be protected from disclosure based on concerns for the personal privacy of individuals depicted in the videos.” The trial court found that the State had articulated “a valid privacy interest at stake — the identity of [PPNNE] patients and clients.” It also found that the PPNNE patients and clients shown on the DVDs “have a privacy interest in the health care providers from whom they choose to seek treatment.”
The trial court further found that there was no “sufficient specific public interest in the disclosure of the DVD footage.” The trial court stated that it could not “discern how the contents of th[e] DVDs would shed light on the activities and conduct” of the AG or of any other governmental entity. Accordingly, the trial court determined that “[t]he privacy interest[s] of individual[s] seeking treatment” from PPNNE substantially outweighed “this minor or nonexistent public interest.”
We begin by assessing whether there is a privacy interest at stake. We conclude that the non-protesting individuals shown,
“In our society, individuals generally have a large measure of control over the disclosure of their own identities and whereabouts.”
Lamy,
Here, the non-protesting individuals shown, or whose vehicles are shown, on the DVDs have a privacy interest in controlling access to the DVD footage.
See Lamy,
The fact that vehicle license plate numbers are publicly displayed is similarly not dispositive of whether disclosure of the DVD footage implicates privacy interests.
See Jones v. U.S. Dept. of Justice,
C/A No. 0:09-2802-RBH-PJG,
Absent additional information about the individuals shown, or whose license plates are shown, on the DVDs, we cannot assess whether, in fact, the DVDs implicate heightened privacy concerns. Nor can we determine the weight to be given to the privacy interests at stake. Accordingly, it would be premature for us to analyze whether there is a public interest in disclosure of the DVDs and, if so, to balance that interest against the privacy interests in nondisclosure.
See id.
at 109-10 (explaining that “[a]bsent a privacy interest, the Right-to-Know Law mandates disclosure”). Rather, we vacate the trial court’s order upholding the State’s decision to withhold the DVDs and remand for аdditional fact-finding and any further
proceedings the trial court deems proper. In those 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 the non-protesting individuals shown, or whose vehicles are shown, on the DVDs.
Cf. DeVere v. State of N.H.,
2. Correspondence About the DVDs
The correspondence about the DVDs consists of an undated envelope addressed to the AG from a Concord law firm and pieces of mostly blank paper demonstrating that the envelope contained the DVDs. The trial court ruled that this correspondence was properly withheld for the same reasons as the DVDs themselves. We conclude that, in so ruling, the trial court erred. The State does not argue that the correspondence implicates any privacy concerns. Accordingly, it was not properly withheld on that basis. “If no privacy interest is at stake, then the Right-to-Know Law mandates
disclosuire." Prоf'l Firefighters of N.H. v. Local Gov’t Ctr.,
3. Individuals’ Names on, Licensing Documents
a. Documents
The documents at issue are applications for the renewal of limited retail drug distributor
Each application lists the name and location of the clinic, its telephone and fax numbers, whether the clinic’s “specialty” is family planning or sexually transmitted disease prevention or some other specialty, whether it proposes to administer or dispense non-controlled drugs, its hours of operation, the address and telephone number of its medical director, the job title of the person in charge of drug purchasing, drug dispensing records, and the security provided at the particular clinic. It requires the signature, under penalties of perjury, of the responsible party. The PPNNE applications are signed by the Chief Financial Officer of PPNNE; the Feminist Health Center application is signed by the center’s executive director.
On each of the PPNNE license renewal applications, the State has redacted the names of PPNNE’s site managers, medical directors, and consultant pharmacists. In place of names, the State has insеrted titles, such as “Medical Director” or “Licensed Pharmacist,” or the name “John Doe,” and a corresponding number designation so that the plaintiffs could identify whether individuals worked at more than one reproductive health care facility.
The Feminist Health Center application includes the name of the site manager but does not include the name of the medical director, registered nurse, or consultant pharmacist. The medical director, registered nurse, and licensed pharmacist are identified as “Medical Director #2,” “Registered Nurse #1,” and “Licensed Pharmacist #2,” respectively.
b. Prior State Litigation
The 2012-2013 renewal applications submitted by PPNNE locations were the subject of prior state court litigation between plaintiff New Hampshire Right to Life and the Board of Pharmacy. In that litigation, as in the instant litigation, in response to requests under the Right-to-Know Law, the State provided copies of PPNNE’s license renewal applications with the names of PPNNE’s site managers, medical directors, and consultant pharmacists for its Claremont, Derry, Exeter, Keene, and Manchester locations redacted for privacy reasons. The Superior Court (McNamara, J.) concluded that the State had “met its burden to demonstrate that there is a privacy interest at stake in the disclosure of the identities of PPNNE’s site managers, consultant pharmacists, and medical directors,” because such individuals “have a privacy interest in their identities.” The court observed that the “release of their identities could result in harassment, from any member of the public, and/or safety concerns.”
With respect to the public interest in disclosure, the court concluded that “[disclosing the names of the employees and independent contractors at issue only provides . . . limited information” with regard to the activities of the Board of Pharmacy. In response to the assertion that the public had an interest in knowing “how PPNNE spends the tax money it receives through subsidies,” the court noted that “PPNNE has not received any State subsidies since 2011 and has ceased receiving Federal subsidies beginning January 1, 2013.” Accordingly, the court denied the request for the names of site managers, medical directors, and consultant pharmacists listed in
PPNNE’s applications for renewed licenses to distribute medication without a pharmacist on site, but it ordered the
c. Current Litigation
Like the court in the prior state litigation, the trial court in this case found that the individuals whose names are redacted have a privacy interest “in their identities and safety.” The court concluded that “[t]his privacy interest” was “not negаted by [the plaintiffs’] arguments.” The trial court then determined that there was only “an attenuated public interest in the specific identities of employees.” The trial court found that “[e]ven assuming that some [PPNNE] salaries are being paid by . . . state grant funds, [the plaintiffs have] not articulated how knowing the identities of particular employees who may or may not be paid with state funding would shed light on the [Board of Pharmacy’s] or ... DHHS’s operations except with respect to how these agencies are enforcing RSA 318:42, VII.” Because it found that the privacy interest was “substantial” and the public interest in disclosure was “attenuated,” the court determined that disclosure of individual employee and independent contractor names is not required by the Right-to-Know Law. However, because “regulatory requirements . . . specify that a clinic must identify its consultant pharmacist and medical director on the [license renewal] application,” the court decided that “disclosure of such persons’ professional designation (e.g., M.D. or R.N.) would suffice to demonstrate the extent to which [the Board of Pharmacy] is approving [license renewal] applications according to law.”
d. Analysis
1. Privacy Interest
We agree with the trial court that individuals whose names were redacted have a privacy interest in the nondisclosure of their identities as employees or independent contractors of the reproductive health care facilities.
“Under some circumstances, individuals retain a strong privacy interest in their identities, and information identifying individuals may be withheld to protect that privacy interest.”
Sensor Systems Support, Inc.,
The plaintiffs argue that the record does not support the trial court’s finding that the clinic employees have a privacy interest in thеir “identities and safety.” To the contrary, the record includes a police incident report from March 2013 regarding a “Pro-life Protest Event” in which “somewhere between 150 and 200” individuals protested at the entrance to PPNNE’s Manchester office. (Bolding omitted.) The report indicates that the sidewalk around the perimeter of the office was “congested” and that the employee entrance was “somewhat obstructed by [a] circulating group of protester[s].” Additionally, the plaintiffs’ own exhibits include a newspaper article regarding New Hampshire Right to Life’s 2015 “March for Life” in Concord, in which “hundreds of supporters from across the state . . . marched down Main Street past the Concord Feminist Health Center.” When it passed the buffer zone statute in 2014, the New Hampshire Legislature found that “[rjecent demonstrations outside of reproductive health care facilities have caused patients and employees of these facilities to believe that their safety and right to privacy are threatened.” Laws 2014, 81:1.
Moreover, as one court has recognized, the “history of violence associated with the provision of [such] services is undeniable.”
Glenn v. Maryland Dept. of Health and Mental Hygiene,
Given evidence of the protests at the Manchester PPNNE office and the Concord Feminist Health Center and evidence of “the history nationally of harassment and violence associated with the provision of abortion services,”
Glenn,
The plaintiffs assert that because the identities of the individuals whose names were redacted “have been publicly disclosed by the clinics themselves” in
2. Public Interest
We also agree with the trial court that the public interest in the names of the individuals at issue is attenuated at best. The plaintiffs argue that “the identities of the individuals being granted an exemption by the Board of Pharmacy to dispense prescription drugs without a pharmacist will inform the public whether the Board of Pharmacy is properly applying RSA 318:42(VII).” The trial court concluded that “disclosure of such persons’ professional or licensing designation is sufficient to demonstrate the extent to which the [Board of Pharmacy] is approving [licensing] applications according to the law.” We agree.
RSA 318:42, VII allows registered nurses “in clinics of nonprofit family planning agencies under contract with [DHHS] ” to dispense non-con trolled prescription drugs provided that certain conditions are met, including that the clinic “possesses a current limited retail drug distributor’s license.” RSA 318:42, VII(d). Disclosure of the names of PPNNE’s site managers, medical directors, and consultant pharmacists at each of the six clinics does not further the public interest in assuring that the requirements of RSA 318:42, VII are met.
The plaintiffs also assert that disclosure of the names of individuals on the license renewal applications is necessary to show “who is running” the clinics and “whose salary is being paid by taxpayer funds,” and to allow the public to discover whether there is “corruption, incompetence, inefficiency, prejudice and favoritism” at the Board of Pharmacy. (Quotation omitted.) To support these assertions, the plaintiffs rely upon
Professional Firefighters,
At issue in
Professional Firefighters
was whether, under the Right-to-Know Law, the Local Government Center, Inc. (LGC) could be compelled to disclose the names and salaries of its employees.
Prof'l Firefighters of N.H.,
PPNNE is a private, non-profit organization, not a governmental entity like LGC.
See Right to Life,
3. Balancing
Because the public interest in disclosing the names of PPNNE employees is, at best, attenuated and is based upon the plaintiffs’ “hypothetical assessment” of the Board of Pharmacy’s performance,
Lamy
4. Feminist Health Center Documents
a. Financial Documents
The plaintiffs next assert that the trial court wrongfully upheld the State’s redaction of monetary amounts contained in financial documents of the Feminist Health Center. Those documents are: (1) a document that lists the assets and liabilities of the Feminist Health Center for calendar year 2010 (P105-06); (2) a document that shows the center’s income and expenses for calendar year 2010 (P107-09); (3) a document that lists the center’s cash flow from operating, investing, and financing activities, the net increase/ decrease in cash during the year, how much was paid for interest, and how much was paid for income taxes (P110-11); and (4) two copies of the same budget form for the budget period July 1, 2012, to June 30, 2013, submitted with a request for “STD/HIV/HCV Clinical Services” and “HIV/HCV Targeted Testing” (P119-20).
The plaintiffs declare, without any analysis, that the Feminist Health Center has “little or no privacy interest” in the monetary amounts listed on the financial documents. Such a bare assertion is not a sufficiently developed argument.
See Wyle v. Lees,
With regard to the public interest in disclosure, the plaintiffs argue that the trial court erred when it held that the financial documents “primarily show the conduct of the clinic, not any government conduct.” (Quotation omitted.) We find no error in the trial court’s interpretation of the financial documents. As the trial court found, the documents do not demonstrate how State grant money was spent. Given the center’s strong privacy interest in nondisclosure and the relatively weak public interest in disclosure, we conclude that the State has met its heavy burden of demonstrating that the financial information is exemрt from disclosure under the Right-to-Know Law.
b. Other Documents
The plaintiffs also challenge the redactions of individual names from certain other produced documents from the Feminist Health Center: (1) a June 2012 list of board members (P118); (2) a form identifying the clinic’s key administrative personnel for fiscal years 2018 and 2014 (key administrative personnel form) (P114); (8) the resume of the center’s director of STD/HIV and outreach services (P117); and (4) the resume of the center’s staff nurse (P118). 4 Although individual home addresses and private telephone numbers were also redacted from some of these documents and from the resume of the center’s executive director (P115), the plaintiffs appear to concede that redaction of an individual’s home address was lawful, and do not argue that the State was required to disclose an individual’s private telephone number. Thus, we confine our analysis to the redactions of names from these documents.
The trial court found that individual board members and employees had a privacy interest in their identities and their association with the Feminist Health Center.
With respect to the key administrative personnel form, the court found that there “is a privacy interest at stake in the disclosure of this information as these employees work for a private entity that is not itself subject to the Right-to-Know Law.” However, the court also found that the public had “some interest in the finances of the clinics that receive state grant funding because taxpayer dollars are flowing to the entity and funding certain services.” The court determined that because the Feminist Health Center is not a governmental entity or a “surrogate[ ]” thereof, the public need not know the names of the individuals holding the positions at issue, but that the public did have a right to know the salaries associated with those positions. Thus, the court ordered the State to redact the individuals’ names, but to disclose the salary information.
1. Privacy Interest
We begin by assessing whether the individuals have a privacy interest in the nondisclosure of their names. The individuals at issue, like the PPNNE employees whose names were redacted from the license renewal applications submitted to the Board of Pharmacy, have a cognizable privacy interest in controlling the dissemination of their names and their connection to the Feminist Health Center.
See Sensor Systems Support, Inc.,
2. Public Interest
We next address the public interest in disclosure of the names of the individuals. The public interest that matters for the Right-to-Know Law is whether disclosure of the otherwise private information will provide the public “the utmost information . . . about what its government is up to.”
Lamy,
“The asserted public interest” upon which the plaintiffs rely for disclosing the names “stems not from the disclosure of the redacted information itself, but rather from the hope that [the plaintiffs], or others, may be able to use that information to obtain additional information outside the Government files.”
Department of State v. Ray,
3.Balancing
Because the only public interest in disclosing the names of the individuals is derivative and because these individuals have a cognizable privacy
interest in nondisclosure that outweighs such a negligible public interest, we conclude that disclosure is not required by the Right-to-Know Law.
See id.; see also Favish,
D. Specificity of State’s Responses
The plaintiffs next argue that the trial court erred when it failed to conclude that the State’s initial responses to the plaintiffs’ Right-to-Know requests violated RSA chapter 91-A. The State counters that the plaintiffs have “confuse [d] the requirements for an agency’s initial response to a Right-to-Know request under RSA 91-A:4 with the requirements for a[ ]
Vaughn
[i]ndex.”
See Vaughn v. Rosen,
RSA 91-A:4, IV provides that, when denying a request to produce a public record for inspection and copying, a public body or agency need only put the denial “in writing” and provide “reasons” for the denial. As the trial court found, and as the record supports, “[i]n response to each Right-to-Know request,... the State cited statutory provisions, case law, or аpplicable privileges indicating the exemption or other reason for nondisclosure.” Although a
Vaughn
index requires more specificity than the State provided in its initial responses, the State was not required to provide such an index in this case.
See Murray v. N.H. Div. of State Police,
The plaintiffs next assert that the court erred “in only requiring the State to provide [them] with a table of contents of withheld documents two months after the February 2, 2015 deadline” for briefing, and in finding that the entries in the table were sufficiently specific. (Emphasis omitted.) We decline to address this assertion substantively because the plaintiffs have not demonstrated that they preserved it for our review.
See J & M Lumber & Constr. Co. v. Smyjunas,
On March 27, 2015, the trial court ordered the State to provide it “with two parallel packets of documentation, one as redacted and the other as unredacted.”
To the extent that the plaintiffs believed that the trial court erred by ordering the State to provide the table and by finding its entries to be sufficiently specific, it was incumbent upon them to so inform that court.
See LaMontagne Builders v. Bowman Brook Purchase Group,
E. Costs and Attorney’s Fees
The plaintiffs next contend that the trial court erred by failing to award them attorney’s fees and costs. We first address their request for attorney’s fees.
RSA 91-A:8 governs remedies for violations of the Right-to-Know Law. RSA 91-A:8 (2013). Under RSA 91-A:8, I, attorney’s fees shall be awarded to a plaintiff if the trial court finds that: (1) “such lawsuit was necessary in order to make the information available”; and (2) “the public body, public agency, or person knew or should have known that the conduct engaged in was a violation of RSA chapter 91-A.”
Prof'l Firefighters of N.H.,
The plaintiffs argue that they are entitled to fees because: (1) the Director, Charitable Trusts Unit (CTU) took 12 weeks to provide them with the financial records they requested; (2) with regard to the buffer zone litigation documents, the State “repeatedly refused to provide reasons for its withholdings until ordered by the Superior Court in April 2015”; and (3) the State knew or should have known that its conduct violated RSA chapter 91-A. The plaintiffs contend that “[t]he State’s failure to provide the hundreds of pages of financial records until 12 weeks after the request and [its] failure to identify the documents it was withholding and the reasons for the withholding until 9 months after [the] request were both knowing violations of RSA 91-A,” and entitled them to an attorney’s fee award.
The trial court rejected these arguments. With regard to the CTU, the court found that, although the CTU had received one of the requested documents in August 2014, “it is unclear when [it received] the other documents responsive to the [plaintiffs September 11, 2014] request.” The court further found that the CTU produced the responsive documents in December 2014, “upon completion of the agency’s internal processing.” The court concluded that “[although this lawsuit was pending at the time of production,” it was not “necessary in order to enforce compliance.” (Quotation omitted.) We uphold these factual findings because the plaintiffs have failed to persuade us that the record does not support them or that they are
With regard to the buffer zone litigation documents, the trial court found that, contrary to the plaintiffs’ assertions, the State sufficiently justified “its exemptions and withholdings” by citing “statutory provisions, case law, or applicable privileges indicating the exemption or other reason for nondisclosure.” The record supports this finding. As previously discussed, no more was required under RSA 91-A:4. See RSA 91-A:4, IV. Thus, the trial court correctly denied the plaintiffs’ attorney’s fee request with regard to the State’s production of the buffer zone litigation documents.
With regard to the State’s response in general, the trial court found that although it had “concluded that certain redactions or withholdings by the State did not meet Right-to-Know requirements, they were not so unreasonable under current New Hampshire case law that the State knew or should have known that disclosure was required.” The court, therefore, found that the plaintiffs were “not entitled to an awаrd of reasonable attorney’s fees as a consequence of the specific disclosures mandated by [its] order.” We concur with this reasoning. We hold, based upon “the record, the trial court’s findings, and the law in this area,” that the State “neither knew nor should have known that its conduct violated the statute.”
Goode v. N.H. Legislative Budget Assistant,
We next address the plaintiffs’ request for costs. The trial court denied the plaintiffs costs because they had “not specifically requested” such an award. Even if we assume without deciding that the trial court erred in this respect, we affirm its denial of costs.
See Catalano v. Town of Windham,
The plaintiffs argue that they are entitled to costs, as a matter of law, because “[t]he Superior Court found that the State violated RSA 91-A in responding to [their] right to know requests in several respects.” However, under RSA 91-A:8, I, the trial court must award costs to a plaintiff only when it “finds that [the plaintiffs] lawsuit was necessary in order to enforce compliance with,” or “to address a purposeful violation of,” the Right -to-Know Law. RSA 91-A:8, I;
see ATV Watch,
Affirmed in part; reversed in part; vacated in part; and remanded.
Notes
A bates-stamp number is “[t]he identifying number or mark affixed to a document or to the individual pages of a document in sequence, usu[ally] by numerals but sometimes by a combination of letters or numerals.” Black’s Law Dictionary 181 (10th ed. 2014).
On April 1, 2016, the Federal District Court for the District of New Hampshire dismissed the plaintiffs’ complaint on the ground that they lacked standing to bring it. See Corrected Opinion and Order at 35-36, Mary Rose Reddy & a. v. Joseph Foster & a., No. 1:14-cv-00299-JL (D.N.H. Apr. 1, 2016), ECF No. 83. The plaintiffs have appealed that decision to the First Circuit Court of Appeals. See Notice of Appeal, Mary Rose Reddy & a. v. Joseph Foster & a., No. 16-1432 (1st Cir. Apr. 21, 2016), ECF No. 86.
Although the First Circuit has not ruled directly upon this issue, it has cited
A. Michael’s Piano, Inc.,
Although in their January 12, 2016 letter to this court, the plaintiffs identified documents bates-stamped P112 and P116 as being at issue in this appeal, the record indicates that those documents were produced without redaction. Moreover, the plaintiffs have not included those documents in the record on appeal and have not briefed any argument about them. Accordingly, we deem any such argument to be waived.
See Aubert,