Katherine E. Hedges
An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

No. 2017-0429
Oct. 17, 2018
Reversed and remanded.

  • The Court decided whether a person had standing to sue under RSA 91-A if their identity had not been disclosed at the time their attorney made the original request.

The petitioner appealed the dismissal of her petition against the Hillsborough County Attorney Dennis Hogan under the Right-to-Know Law, RSA 91-A, which was dismissed when the trial court found she was not a person aggrieved and did not have standing under the statute. The petitioner’s attorney had made several requests to the Hillsborough County Attorney relating to an individual under RSA 91-A:7 over the course of eleven months, but the responses were inadequate and late. The attorney did not reveal who his client was until he filed the petition with the Superior Court, seeking to enjoin the Hillsborough County Attorney from further violations. The Superior Court granted Hillsborough County Attorney’s motion to dismiss, which argued that the petitioner lacked standing because her identity had not been revealed in the original right-to-know requests made by Attorney Soltani.

The Supreme Court interpreted RSA 91-A to determine what was required to qualify as a “person aggrieved” who could bring a claim to enforce compliance with the provisions of the statute. The Court found that there was no requirement for someone bringing a claim pursuant to RSA 91-A to have either made the request herself or have been identified as the person on whose behalf the request was made. The Court found that the statute did not require any examination into the motives of the requester, and there was no restriction on the use of disclosed information, so the identity of the requester was irrelevant when an attorney was making the request on a client’s behalf. The Court also noted there were public policy reasons for a requester to have the ability to keep their identity concealed initially, such as when requests are made by a whistleblower or advocacy group. The Court also held that New Hampshire agency law supported this conclusion.

The Court found the Superior Court’s reliance on federal decisions interpreting the Freedom of Information Act (FOIA) were inapplicable because of differences in the framework of the law. FOIA was a legislative effort to promote transparent government, while RSA 91-A derived from the public rights to open government and accountability found in the New Hampshire Constitution. The Court noted that although FOIA could be instructive for interpreting analogous provisions in RSA 91-A, it is not useful for determining questions of standing. The question of standing was a factual question of whether the agency relationship between the client and attorney existed at the time the requests were originally made. The Court reversed the dismissal and remanded the case for further proceedings

 

Tony F. Soltani, The MuniLaw Group, Epsom, for the petitioner. Carolyn M. Kirby, Goffstown, for the respondent.