Supreme Court At-a-Glance Contributor Jonathan P. Killeen, Shareholder at Boyle | Shaughnessy Law PC in Manchester, NH

No. 2020-0052

February 23, 2022

Affirmed

 

  • Whether 911 audio recordings are exempt from disclosure under the Right-to-Know Law, RSA 91-A (2013 & Supp. 2021) and whether the court erred in denying request for equitable discovery of 911 audio recordings.

 

A guest slipped and fell at B&C’s Fireside Inn (B&C). An unidentified person placed a 911 call to the New Hampshire Division of Emergency Services and Communications (Division) to report the incident. The guest’s attorney then sent a letter of representation to B&C indicating an intent to investigate the fall but otherwise did not demand a settlement or indicate that the guest had filed a lawsuit.  B&C subsequently submitted a request under the Right-to-Know Law to the Division for the 911 audio recordings, which the Division denied. As a result, B&C initiated a discovery action with the superior court through which it asked the court to exercise its equitable powers and compel the recordings. Following a hearing, the superior court determined that RSA 106-H:14 exempted the 911 audio recordings from the Right-to-Know Law and concluded that B&C was not entitled to equitable discovery.

On appeal, the Supreme Court affirmed the superior court’s decision that RSA 106-H:14 exempts 911 audio recordings from the Right-to-Know Law. There was no dispute the that the 911 audio recordings were considered information created in furtherance of the Division’s official function and thus would be public records.  However, RSA 106-H:14 is entitled “Information Not Subject to Right-to-Know Law,” and states, in relevant part, that “[a]ny information or records compiled under this chapter shall not be considered a public record for purposes of RSA 91-A . . . .” The Court rejected B&C’s argument that the phrase “under this this chapter” limited the exemption of records to the Right-to-Know Law to a caller’s fixed-location data.  In doing so, the Court stated that had the legislature intended to limit the exemption in such a way, it could have expressly stated it within the statute. Rather, the Court stated that the statutory definition of “enhanced 911 system” included the “information provided by the caller,” which the Court reasoned was essential to the functioning of the enhanced 911 system.

The Court also conclude that B&C was not prejudiced, nor did the superior court abuse its discretion, when the superior court denied B&C’s request for equitable discovery.  In doing so, the Court rejected B&C’s generalized assertion that it would continue to sustain pre-suit costs.  Rather the Court concluded that while a party may need to show that it does not have an available remedy at law in order to obtain equitable relief, such a showing alone is not sufficient because a party must also show that the requested relief is appropriate under the circumstances. The Court found that the superior court properly exercised its discretion when it determined that B&C did not suffer an injury, or financial burden, by virtue of the Division not producing the 911 audio recordings, and that B&C’s position would not change whether the 911 audio recordings were produced or not.

 

Getman, Schulthess, Steere & Poulin, P.A., of Manchester (Heather S. Ward and Naomi L. Getman on the brief, and Heather S. Ward orally), for the plaintiff; Gordon J. McDonald, attorney general (Matthew T. Broadhead, senior assistant attorney general, on the brief and orally), for the defendant.