Municipal Law

Stacie Ayn Murphy Corcoran
2011 graduate of Suffolk University Law School, practicing in Mass. and NH

No. 2019-0150
June 9, 2020
Affirmed

  • Whether the Technical Review Group (“TRG”) is a “public body” as defined by RSA 91 -A: 1-a and subject to open meeting
  • Whether the city’s copy fee schedule is prohibited by RSA 91-A:4,

The TRG is a work team, with no decision-making  authority,  established by a former Rochester city manager, to advise applicants and review projects submitted to the planning board. The applications and plans they comment on are loaded into a database to be reviewed by the planning board but are also publicly available for inspection. The TRG holds meetings that are not open to the public. The plaintiff filed suit seeking declaratory and injunctive relief on the grounds that   it violated the Right-to-Know Law’s open meeting requirement, but after a bench trial the court denied the plaintiff’s “prayers for relief” and an appeal followed.

The Court reviewed RSA 91-A

(Right-to-Know Law) de novo. The plain- tiff argues, but the Court is not persuaded, that the TRG is an “advisory committee” under RSA 91-A:1-a, VI(d) and therefore a public body. The Court reasoned the TRG reviews the applications for compliance but does not make recommendations. The plaintiff makes arguments around the TRG’s “primary purpose” that the Court finds unpersuasive. The Court relies on statutory construction to find  that “the purpose of the body’s consideration is the deciding factor” in relation to “primary purpose” and the TRG doesn’t provide advice so they are not an advisory committee.

Next, the plaintiff argues the stream-lined information gathering process be- tween the municipal officials and the applicant triggers an open meeting requirement. The Court, relies on Bradbury, 116 N.H. at 389-90, to illustrate the difference between policy making authority and application assistance to show that  the TRG is not involved in “governmental programs and decisions.” Therefore, the Court found that the TRG was not an “advisory committee” or a “public body” and not subject to open meeting requirements, RSA  91-A:1-a,  I  ;  RSA  91A:1-a, VI(d); and RSA 91-A:2, II respectively.

In relation to the plaintiff’s arguments that the trial court erred in finding the city’s photocopying fees for public re- cords was based on actual costs, the Court did not find their argument persuasive. The Court reviewing the application of the facts de novo, found the trial court did not misapply RSA 91-A:4 because the legislature did not mandate the use of a formula to determine actual cost of photocopies. The Court found the city’s presentation of fee schedules from other municipalities to the trial court was sufficient evidence of actual cost because a “reasonable person could draw the same conclusion the court did.”

 

Douglas, Leonard & Garvey, P.C. of Con- cord (Jared Bedrick on the brief)  and The MuniLaw Group of Epsom (Tony F. Soltani orally) for the plaintiff. The Office of the Rochester City Attorney (Ter- ence M. O’Rourke, city attorney on the memorandum of law and orally) for the defendant.