Jeffrey Thomas Clay v. Newmarket School District

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0718, Jeffrey Thomas Clay v. Newmarket
School District, the court on October 1, 2020, issued the
following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The motion filed by the plaintiff, Jeffrey Thomas Clay, to strike portions
of the brief and appendices filed by the defendant, the Newmarket School
District, is denied.

The plaintiff appeals orders of the Superior Court (Wageling and
Honigberg, JJ.) that: (1) denied his request that the school district’s attorney be
removed from the case; (2) concluded, based upon offers of proof, that the
school district’s redactions to documents produced in response to his July
2016 request did not violate the Right-to-Know Law; (3) denied the plaintiff’s
request that the court review in camera the thousands of documents produced
in response to that request; (4) denied the plaintiff’s request that the school
district be ordered to prepare a “Vaughn” index, see Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973); and (5) awarded the school district attorney’s fees and
costs because of the dearth of evidence supporting the plaintiff’s allegations
against the school district’s attorney. The school district cross-appeals the trial
court’s determination that the district violated the Right-to-Know Law by
discussing a letter of resignation and the applicants to serve on a
superintendent screening committee in nonpublic sessions. We affirm.

The trial court found the following facts. In July 2016, the plaintiff
requested that the school district provide “any and all email or text
communications sent or received by any school district administrator, school
board member, or superintendent search, screening or selection committee
member occurring between October 1, 2015 and December 31, 2015 which
relates in any manner to the superintendent search undertaken by the school
board/district.” In response, the school district produced approximately
13,000 pages of records, although many of the pages were substantially
redacted. When the plaintiff objected to the redactions, the then-
superintendent of schools informed him that the school district had redacted
“[d]uplicates of e-mails and e-mails unrelated to [his] request,” “[r]outing and IP
address information,” and “personal information, including e-mail addresses of
non-employees.”
 In April 2019, the plaintiff requested that the school district produce
invoices from any law firm or attorney with emails or other documents relating
to or concerning him, including his prior allegations of misconduct by the
district. His request included emails between the district or its employees and
legal counsel. The school district provided the requested information, but
redacted information protected by the attorney-client privilege. On appeal, the
plaintiff has not briefed an argument challenging those redactions.
Accordingly, we deem any such argument waived.

Thereafter, the plaintiff brought the instant action, contending, among
other things, that the school district’s response to his 2016 right-to-know
request violated the Right-to-Know Law. He alleged that the numerous
redactions were designed to conceal the wrongdoing he attributes to the school
district and to its attorney in a prior right-to-know case involving the parties.
He also argued that the district violated the Right-to-Know Law by discussing a
letter of resignation and the applicants to serve on a screening committee for
superintendent candidates in nonpublic sessions. Subsequently, the plaintiff
brought a motion alleging that the school district’s attorney had committed
perjury, falsified evidence, and otherwise engaged in improper conduct in the
prior case between the parties and requesting that the court remove her as the
district’s counsel.

The trial court held a hearing in July 2019 to address pending motions
and conduct a hearing on the merits. The trial court denied the plaintiff’s
motion to have the district’s attorney removed from the case, determining that
“there is no competent evidence” that she engaged in improper conduct in the
prior case. In addition, the court awarded the school district the attorney’s fees
and costs it incurred in litigating the plaintiff’s claims against its attorney on
the ground that his claims were frivolous and vexatious. Specifically, the court
found:

Plaintiff has raised his allegations of wrongdoing in multiple
forums, and has had the reasons underlying his confusion
concerning the details of the superintendent search explained to
him on multiple occasions. Plaintiff’s purported evidence of
wrongdoing has been reviewed by several impartial persons or
entities, all of which have concluded that the evidence presented
did not support Plaintiff’s allegations. Nonetheless, Plaintiff has
once again raised these allegations in an attempt to remove his
opponent’s attorney from this case. While Plaintiff is under no
obligation to accept the explanations he has repeatedly been given,
the Court finds and rules that Plaintiff’s decision to litigate [the
attorney’s] alleged wrongdoing in the course of this action, without
any competent evidence in support thereof, was frivolous and
vexatious.

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 On the merits of the plaintiff’s right-to-know claims, the court found that
its review of a sample of the redacted documents responsive to his 2016
request “is consistent with [the school district’s] representations (to Plaintiff[ ]
and to the Court) that only network, IP, or other metadata-type information
was redacted from those documents.” The court further found that even if the
plaintiff had established that personal information, including the email
addresses of non-employees of the school district, was responsive to his
request, redaction of that information was proper. The court described and
then applied the balancing test we use to determine whether disclosure of
public records constitutes an invasion of privacy. See Lamy v. N.H. Pub Utils.
Comm’n, 152 N.H. 106, 109 (2005); see also RSA 91-A:5, IV (2013). The court
determined that there “is a relatively strong privacy interest in the personal
information at issue,” and a correspondingly “very low” public interest in the
disclosure of that information given that the superintendent who was selected
in 2016 no longer holds that post.

The court declined to conduct an in camera review of the documents
based upon the plaintiff’s speculation that the redactions were improperly
made. The court also declined to order the school district to create a Vaughn
index of the documents, reasoning that such an index was not warranted given
the school district’s offer of proof and the evidence that the district “made
careful, exacting redactions rather than routinely withholding entire
documents.” See N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169
N.H. 95, 125 (2016) (explaining that Vaughn index includes general description
of each document withheld and justification for the nondisclosure).

The court found in the plaintiff’s favor on his claim that the school
district violated the Right-to-Know Law by discussing a letter of resignation and
applicants to serve on a superintendent screening committee in nonpublic
sessions. The school district argued that doing so complied with the law
because such discussions might reveal information “which, if discussed in
public, would likely affect adversely the reputation of any person,” other than a
school board member. RSA 91-A:3, II(c) (2013). The district did not suggest
that it had reason to believe that discussing the particular letter of resignation
or specific applicants at issue was likely to involve matters that, if discussed
publicly, would likely cause reputational harm. See id. Rather, the district
suggested that, because it could not know whether such matters would come
up until the discussions actually took place, discussing resignation letters or
applicants for a superintendent screening committee could always take place in
nonpublic sessions. The trial court rejected the school district’s broad
interpretation of the statute, ruling that before entering into nonpublic sessions
on this basis, the school district “must engage in some form of threshold
inquiry in order to determine” whether discussing the specific letter or
applicants at issue would likely adversely affect the reputation of someone not
on the board.

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 Both parties unsuccessfully moved to reconsider. In response to the
district’s motion, the trial court clarified that it did not intend to “suggest that
a board member must put his or her reasoning in the minutes, or state them in
the record, before entering into nonpublic session.” The “threshold inquiry” to
which the trial court referred could “and in most cases, probably should occur
entirely within a particular board member’s own mind.” The court clarified
that it intended only to reject the school district’s implied assertion that “it is
always appropriate to enter nonpublic sessions” when discussing matters such
as resignation letters or applicants to serve on screening committees. “In other
words,” the court reasoned, “the likelihood contemplated by [the statute] is not
the likelihood that the discussion of letters of resignation [or applicants] in
general poses a risk of reputational harm, but the likelihood that the board’s
discussion of a specific letter of resignation [or applicant] poses such a risk.”
This appeal and cross-appeal followed.

We first consider the plaintiff’s appeal. On appeal, the plaintiff argues
that the award of attorney’s fees to the school district constituted an
unsustainable exercise in discretion because: (1) the trial court did not find
that he brought his entire lawsuit against the district in bad faith; (2) his
motion to have the attorney removed “was completely reasonable based upon
the record and supported by the evidence”; and (3) his motion was necessary to
bring to light the attorney’s alleged conflict of interest and misconduct. The
plaintiff also contends that the trial court erroneously upheld the school
district’s redactions to the 13,000 documents disclosed in 2016 by accepting
the school district’s offer of proof instead of reviewing the documents in camera
or requiring the district to create a Vaughn index.

The plaintiff has the burden of demonstrating reversible error. Gallo v.
Traina, 166 N.H. 737, 740 (2014). Based upon our review of the trial court’s
well-reasoned orders, the plaintiff’s challenges to them, the relevant law, and
the record submitted on appeal, we conclude that he has not demonstrated
reversible error. See id.

We turn next to the school district’s cross-appeal. In its cross-appeal,
the school district repeats the arguments it made in its motion to reconsider
related to the trial court’s reference to the “threshold inquiry” that must be
made going into nonpublic session under RSA 91-A:3, II(c). The school district
asserts that the statute “does not require that[,] before going into non-public
session[,] . . . the board must explain or engage in any other form of threshold
inquiry as to why the board believes discussion of the matter in public session
would likely adversely affect the reputation of any person.” However, in
denying the school district’s motion to reconsider, the trial court made clear
that it did not impose such a requirement. The trial court merely rejected the
school district’s broad suggestion that discussing letters of resignation or
applicants to screening committees always poses a risk of reputational harm
and, therefore, must always be discussed in nonpublic session. In its appellate

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brief, the school district does not acknowledge that the trial court clarified its
original ruling much less argue that, even as clarified, the trial court’s
statutory interpretation is incorrect. Under these circumstances, the school
district has failed to persuade us that the trial court committed reversible
error. See Gallo, 166 N.H. at 740.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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