Lisa Censabella v. Hillsborough County Attorney

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough–southern judicial district
No. 2017-0429

LISA CENSABELLA

v.

HILLSBOROUGH COUNTY ATTORNEY

Argued: March 21, 2018
Opinion Issued: October 17, 2018

The MuniLaw Group, of Epsom (Tony F. Soltani on the brief and orally),
for the petitioner.

Carolyn M. Kirby, of Goffstown, on the brief and orally, for the
respondent.

HANTZ MARCONI, J. The petitioner, Lisa Censabella, appeals the
Superior Court’s (Mangones, J.) dismissal of her petition for relief against
Hillsborough County Attorney Dennis Hogan under the Right-to-Know Law,
RSA chapter 91-A. The petitioner argues that the trial court erred in ruling
that she was not a “person aggrieved” under RSA 91-A:7 (2013) and, therefore,
lacked standing to pursue this action. We reverse and remand.
 The record establishes the following facts. In March 2017, the petitioner,
by and through her attorney, filed a petition seeking, among other things, to
enjoin the respondent from further violations of the Right-to-Know Law. The
petitioner claimed to be a person aggrieved, under RSA 91-A:7, by the
respondent’s alleged violations of RSA chapter 91-A occurring between
December 28, 2015 and November 29, 2016. The petition alleges that Attorney
Tony Soltani filed a Right-to-Know Law request on her behalf with the
respondent seeking information regarding another individual, but that the
response to the request and to follow-up requests made by Soltani over the
ensuing eleven months was late and incomplete. At no time during the
exchange did Soltani reveal that the petitioner was his client for the purpose of
the request, nor did the respondent inquire for whom the requests were being
made. The first time the petitioner’s name was revealed was in the petition
filed in the superior court.

The respondent moved to dismiss, asserting that, because the petitioner
was not identified directly or indirectly in any of the requests made by Soltani,
she lacked standing to bring the petition. The trial court granted the
respondent’s motion. This appeal followed.

Generally, in ruling upon a motion to dismiss, the trial court is required
to determine whether the allegations contained in the petitioner’s pleadings are
sufficient to state a basis upon which relief may be granted. K.L.N.
Construction Co. v. Town of Pelham, 167 N.H. 180, 183 (2014). To make this
determination, the court would normally accept all facts pled by the petitioner
as true, construing them most favorably to the petitioner. Id. When the
motion to dismiss does not challenge the sufficiency of the petitioner’s legal
claim but, instead, raises certain defenses, the trial court must look beyond the
petitioner’s unsubstantiated allegations and determine, based on the facts,
whether the petitioner has sufficiently demonstrated her right to claim relief.
Id. A jurisdictional challenge based upon a lack of standing is such a defense.
Id. Since the relevant facts are not in dispute, we review the trial court’s
determination on standing de novo. Id.

Addressing the standing issue requires us to interpret RSA chapter 91-A.
The ordinary rules of statutory construction apply to our review of the Right-to-
Know Law. N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95,
102-03 (2016). Thus, we are the final arbiter of the legislature’s intent as
expressed in the words of the statute considered as a whole. Id. at 103. When
examining the language of a statute, we ascribe the plain and ordinary
meaning to the words used. Id. We interpret legislative intent from the statute
as written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include. Id. We also interpret a
statute in the context of the overall statutory scheme and not in isolation. Id.

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 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 N.H.
Right to Life, 169 N.H. at 103. Thus, the Right-to-Know Law furthers our state
constitutional requirement that the public’s right of access to governmental
proceedings and records shall not be unreasonably restricted. N.H. Right to
Life, 169 N.H. at 103. While we look to other jurisdictions construing similar
statutes for guidance, including federal interpretations of the federal Freedom
of Information Act (FOIA), 5 U.S.C. §§ 552 et seq., we resolve questions
regarding the Right-to-Know Law with a view to providing the utmost
information in order to best effectuate the statutory and constitutional
objectives. Id.

The Right-to-Know Law provides “[e]very citizen” with a right to inspect
and copy government records except as otherwise prohibited by statute. RSA
91-A:4, I (2013). RSA 91-A:4, IV (Supp. 2017) requires public bodies and
agencies to make such government records available upon request. RSA 91-
A:8, I (2013) provides that public bodies, agencies, or officials who violate the
provisions of this chapter shall be liable for reasonable attorney’s fees and
costs incurred in a lawsuit under the chapter, provided that the court finds the
lawsuit was “necessary in order to enforce compliance with the provisions of
this chapter or to address a purposeful violation of this chapter.” The statute
allows “[a]ny person aggrieved” to petition for injunctive relief, and appear “with
or without counsel.” RSA 91-A:7.

Thus, our decision turns on whether the petitioner was a “person
aggrieved” within the meaning of the statute. See RSA 91-A:7. The respondent
argues that standing requires parties to have personal legal or equitable rights
that are adverse to one another, with regard to an actual, not hypothetical,
dispute, which is capable of judicial redress, Duncan v. State of N.H., 166 N.H.
630, 642-43 (2014), and that a party must demonstrate harm to maintain a
legal challenge, Birch Broad. v. Capitol Broad. Corp., 161 N.H. 192, 199 (2010).
Applying these tests, we conclude that the petitioner has standing.

“Whether a person’s interest in the challenged administrative action is
sufficient to confer standing is a factual determination to be undertaken on a
case by case basis.” Golf Course Investors of NH v. Town of Jaffrey, 161 N.H.
675, 680 (2011). Both the petitioner in her petition, and her attorney in
representations to the trial court, confirmed that the requests at issue were
made to the respondent by Attorney Soltani on the petitioner’s behalf. The
respondent argues that the petitioner is not a “person aggrieved” because she
“never directly requested inspection of government records, nor was she ever
identified as a citizen upon whose behalf a request was made.” We discern no
such requirements in the Right-to-Know Law.

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 At the outset, nothing in the statute required the petitioner to “directly”
request inspection of government records. Indeed, the statute specifically
anticipates that a claimant may appear with counsel when pursuing a remedy.
See RSA 91-A:7. It follows that a claimant may make his or her request for
records through counsel.

At issue is whether the identity of the petitioner must be disclosed in the
request. The requester’s motives in seeking disclosure are irrelevant to the
question of access. Lambert v. Belknap County Convention, 157 N.H. 375, 383
(2008). There are no restrictions on the use of the records, once disclosed. Id.
“As a general rule, if the information is subject to disclosure, it belongs to all.”
Id. Thus, with respect to requests for access to such information, there would
be little reason to engraft a disclosure requirement upon the requester — when
a request is made by an attorney on a client’s behalf, the client’s identity, at
that point, is irrelevant. Allowing the client to enforce such a records request
does not prejudice the public agency holding the records — “[p]ublic bodies
have a statutory duty to respond diligently to all records requests, regardless of
who makes the request.” San Juan Agr. Water Users Ass’n v. KNME-TV, 257
P.3d 884, 892 (N.M. 2011).

Furthermore, given the competing interests inherent in a request to the
government for disclosure, it would not be unreasonable for a requester to
desire anonymity in the early stages when making a Right-to-Know Law
request. Such requests may implicate political, policy, or public interest
considerations, particularly when the request is pursued by a whistleblower or
advocacy organization. Practical considerations also weigh in favor of requests
made by attorneys on behalf of clients who are not able to participate directly.
Moreover, a construction which allows an undisclosed client to seek disclosure
through counsel is consistent with our common law of agency, which permits
undisclosed principals to act through agents. See Bryant v. Wells, 56 N.H.
152, 155 (1875); Chandler v. Coe, 54 N.H. 561, 576 (1874).

Relying upon federal case law interpreting the FOIA, the trial court
concluded that as an unidentified requester, the petitioner did not have
standing to bring this action. See McDonnell v. United States, 4 F.3d 1227,
1236-37 (3d Cir. 1993) (“We think a person whose name does not appear on a
request for records has not made a formal request for documents within the
meaning of the statute.”). We do not construe our state statute, however, in so
limited a fashion.

Notably, the FOIA derives from a legislative effort to promote government
transparency, not from a constitutionally mandated public right to open
government and accountability. Cf. McBurney v. Young, 569 U.S. 221, 232
(2013) (“This Court has repeatedly made clear that there is no constitutional
right to obtain all the information provided by FOIA laws.”). As such, the rights
conferred by the FOIA are limited to those defined by the federal statute. “[T]he

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question of who may enforce a statutory right is fundamentally different from
the question of who may enforce a right that is protected by the Constitution.”
Davis v. Passman, 442 U.S. 228, 241 (1979) (emphasis omitted). The FOIA
outlines a statutory process for agency responses to persons making a “request
for records” which, among other things, distinguishes, by identity of the
requester, the level of fees permitted to be charged for the response. 5 U.S.C.
§§ 552(a)(3)(c), (a)(4)(A). The FOIA provides a remedy to a “complainant” who
has had agency records improperly withheld from him or her. 5 U.S.C.
§§ 552(a)(4)(B), (F). Thus, it is not surprising that the federal courts have
developed a more restricted definition of standing under the FOIA. Although
we find federal law interpreting the FOIA to provide helpful guidance when
interpreting analogous exemptions under our law, see Montenegro v. City of
Dover, 162 N.H. 641, 645-46 (2011) (police investigatory files); N.H. Right to
Life, 169 N.H. at 103 (confidential, commercial, or financial information and
other files the disclosure of which would constitute invasion of privacy), we
conclude that it is of little assistance in determining standing. Accord, e.g.,
San Juan Agr. Water Users Ass’n, 257 P.3d at 892-93 (citing cases).

Accordingly, we conclude that the trial court erred in granting the
respondent’s motion to dismiss for lack of standing. Whether the agency
relationship actually existed at the time of the request is a factual matter,
which, if challenged, would need to be decided by the trial court, as would the
merits of the petitioner’s claim. Id. at 884. We reverse and remand for further
proceedings consistent with this opinion.

Reversed and remanded.

LYNN, C.J., and HICKS and BASSETT, JJ., concurred.

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