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Denial of Attorney’s Fees and Costs Reversed in New Hampshire Public Records Suit

The New Hampshire Supreme Court vacated a trial court's denial of costs under the State's "Right-to-Know Law," RSA chapters 91A and 215.A (2001 & Supp 2006).

ATV Watch (ATV), a non-profit organization, monitors the use and development of all-terrain vehicle trails in New Hampshire. The state's Department of' Resources and Economic Development (DRED) has a statutory duty to develop, manage and create multipurpose recreational trails.

In 2004, ATV made a "Right-to-Know" record request relating to DRED's intended purchase of a large tract of land and its plan to develop all-terrain vehicle and other trails on the land, once purchased.

DRED ultimately released one category of records to ATV but did not do so within the time required by state law. It also refused to disclose several other records.

ATV filed a petition in superior court, alleging violations of the Right-to-Know law, seeking injunctive relief and an award of attorneys' fees. Following a March 2005 hearing, the trial court dismissed several of ATV's claims, including the requests for injunctive relief and attorneys' fees. With respect to the documents that DRED refused to disclose, the court ordered further briefing.

Before the court decided the issue, DRED disclosed the previously withheld documents and the court dismissed the action as moot, again denying ATV's request for costs and attorneys' fees.

The Supreme Court concluded "that the trial court applied an erroneous legal standard for assessing costs." Based upon the language of RSA 91-A:8, the court vacated the trial court's denial of costs, holding that the court "erred in considering whether DRED's conduct was 'reasonable' or whether it committed a 'knowing' violation when rejecting ATV's request for costs."

The court also agreed with ATV's argument that "the trial court applied an incorrect legal standard and thus erred in ruling that DRED's delay in disclosure did not violate the Right-to-Know Law."

DRED admitted to the violation in the trial court, but the court found that while DRED technically violated the statute, ATV was not prejudiced by the violation.

The Supreme Court reversed, noting that "the plain language of the provision does not allow for consideration of the factors applied by the trial court, such as 'reasonable speed,' 'oversight,' 'fault,' 'harm,' or 'prejudice.'” Given that DRED violated the statute by its delayed disclosure, the Court vacated the trial court's decision.

Turning to the records that DRED refused to disclose, the Court held that "it was error for the trial court to dismiss as moot the remaining portions of ATV's Right-to-Know petition pertaining to the intentionally withheld documents." The Court instructed the lower court to decide on remand whether the non-disclosure violated the statute, "and, if so, whether the lawsuit was necessary to secure… disclosure, which would entitle ATV to an award of costs." See: ATV Watch v. New Hampshire Department of Resources and Economic Development, 923 A. 2d 1061, 155 NH 434 (NH: Supreme Court, 2007).

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