NEW HAMPSHIRE RIGHT TO LIFE & a.
v.
DIRECTOR, NEW HAMPSHIRE CHARITABLE TRUSTS UNIT & a.
Strafford
Argued: January 13, 2016
Wadleigh, Starr & Peters, PLLC, of Manchester (Michael J.
Tierney on the brief and orally), for the plaintiffs.
Joseph
A. Foster, attorney general (Megan A. Yaple, attorney, and
Lynmarie Cusack, assistant attorney general, on the brief,
and Ms. Yaple orally), for the defendants.
BASSETT, J.
The
plaintiffs, New Hampshire Right to Life and Jackie Pelletier,
appeal orders by the Superior Court (Mangones, J.)
granting in part and denying in part their petition for an
order requiring the defendants, the Director, Charitable
Trusts Unit (CTU), the Office of the New Hampshire Attorney
General (AG), the New Hampshire Board of Pharmacy (Board of
Pharmacy), and the New Hampshire Department of Health and
Human Services (DHHS), collectively referred to as "the
State, " to produce, under the Right-to-Know Law,
without redaction, all documents and other materials
responsive to the plaintiffs' prior requests.
See RSA ch. 91-A (2013 & Supp. 2015). The trial
court ordered the State to produce certain documents, but
upheld the State's withholding or redactions of other
documents because it determined that they were exempt from
disclosure under the Right-to-Know Law. See RSA
91-A:5, IV (2013). On appeal, the plaintiffs argue that in so
deciding and in denying their associated requests for
attorney's fees and costs, the trial court erred. We
affirm in part, reverse in part, vacate in part, and remand.
I.
Background
The
relevant facts follow. New Hampshire Right to Life "is a
New Hampshire non-profit organization opposed to government
support, by taxpayer subsidies, of medical clinics that
provide abortion services." Appeal of N.H. Right to
Life, 166 N.H. 308, 310 (2014). At issue are three
Right-to-Know requests that the plaintiffs made of the State
in July 2014 and September 2014 for documents and materials
related to Planned Parenthood of Northern New England (PPNNE)
and/or its New Hampshire clinics. At oral argument, the
parties agreed that any issues regarding a fourth
Right-to-Know request are now moot. According to a
declaration (a sworn statement filed as a pleading with a
court), and not apparently disputed by the plaintiffs, PPNNE
is a private, non-profit organization affiliated with Planned
Parenthood Federation of America (Planned Parenthood).
See Right to Life v. Dept. of Health & Human
Serv's, 778 F.3d 43, 49 (1st Cir.), cert.
denied, 136 S.Ct. 383 (2015); see also
Ramelb, Note, Public Health Care Funding: The Battle Over
Planned Parenthood, 47 Val. U. L. Rev. 499, 510 (2013).
Planned Parenthood provides "medical services related to
family planning, men and women's sexual health, and
abortions." Ramelb, supra at 510. PPNNE
operates reproductive health care clinics in six New
Hampshire municipalities - Claremont, Derry, Exeter, Keene,
Manchester, and West Lebanon. Right-to-Life, 778
F.3d at 46.
The
first request, sent on July 14, 2014, sought "copies of
all of [PPNNE's] 2014-2015 [Limited Retail Drug
Distributorship] licenses for its six New Hampshire
clinics" and "any documents related to these
clinics either sent or received by the Board [of
Pharmacy]." (Bolding omitted.) See RSA 318:42,
VII, :51-b (2015). PPNNE has operated in New Hampshire for a
number of years as a licensed limited retail drug distributor
pursuant to a contract with DHHS. Appeal of N.H. Right to
Life, 166 N.H. at 310; see RSA 318:42, VII,
:51-b. As a limited retail drug distributor, PPNNE must
reapply annually to the Board of Pharmacy to renew its
licenses, the terms of which run from July 1 to June 30 of
each year. Appeal of N.H. Right to Life, 166 N.H. at
310.
The
State responded to this request on July 31, 2014, by
producing certain documents and withholding others as
"exempt from disclosure under RSA 91-A:5 and RSA 318:30,
I." See RSA 91-A:5 (Supp. 2015) (setting forth
categories of information that are exempt from disclosure
under the Right-to-Know Law); see also RSA 318:30, I
(2015) (exempting from disclosure, under the Right-to-Know
Law, Board of Pharmacy investigations and information
discovered pursuant to such investigations "unless such
information becomes the subject of a public disciplinary
hearing"). The State's decision to exempt certain
documents from disclosure pursuant to RSA 318:30, I, is not
at issue in this appeal.
The
second request, sent on July 28, 2014, sought "all
documents, no matter what form, including but not limited to,
printed documents, electronic documents, e-mails, or any
other form of documents, " that constitute: (1)
communications "by, from or regarding" certain
reproductive health centers and individuals representing such
centers; (2) "[a]ny and all documents in the possession
of the [AG] regarding any reproductive health facility";
(3) certain specific materials, including "DVDs
containing security camera footage from July 10, 2014 and
July 17, 2014 outside the Manchester clinic"; and (4)
"[a]ny and all documents in the possession of the [AG]
regarding abortion clinic buffer zones, reproductive health
center patient safety zones, RSA 132:37 to 39 in New
Hampshire or in any other State." The State responded to
the plaintiffs' second request on September 4, 2014,
producing some documents and informing the plaintiffs that
other documents had been redacted or withheld because they
contained information exempt from disclosure under RSA
91-A:5, IV.
The
third request, made on September 11, 2014, sought specified
financial information about certain reproductive health
clinics. The State produced some information, but, with
regard to the 2010 financial statements of the Joan G.
Lovering Health Center (Feminist Health Center), it redacted
certain monetary amounts.
The
plaintiffs filed the within complaint for injunctive relief,
attorney's fees, and costs on October 20, 2014.
Subsequently, the State provided to the trial court for
in camera review approximately 1, 500 pages of
documents and three DVDs. The documents and materials
provided to the trial court comprised those that had been
produced to the plaintiffs and those that had been withheld
from disclosure. The State also provided to the court and to
the plaintiffs a "Table of Contents, " listing the
previously-produced documents with corresponding
"bates-stamp" numbers[1] and the withheld documents with
corresponding bates-stamp numbers. Following its in
camera review of the information withheld or redacted,
and after holding a hearing, the trial court ordered the
State to produce certain documents and information, but
upheld most of the State's decisions to redact or
withhold. This appeal followed. The parties have not provided
a transcript of the trial court hearing as part of the
appellate record. The record does not indicate whether the
hearing was an evidentiary hearing.
After
this appeal was filed, we ordered the plaintiffs to identify,
by bates-stamp number, information that had been submitted to
the trial court for in camera review, but which they
assert should have been, and was not, disclosed. In a January
12, 2016 letter, the plaintiffs identified the following as
the documents and materials "at issue, addressed and
argued in the Briefs": (1) three DVDs containing
security footage of the area outside of the Manchester office
of PPNNE; and (2) documents bates-stamped W305-06
(declaration of Meagan Gallagher), W1475-76 (e-mail
communications between AG and clinic officials), W36-294
(e-mail communications between AG and such offices in other
states), W33-35 (correspondence regarding the DVDs), P31-56
(license renewal applications filed with the Board of
Pharmacy), and P105-20 (documents related to the Feminist
Health Center).
Thereafter,
we ordered the superior court to transfer to this court the
un-redacted versions of the documents and materials so
identified. Our analysis in this case is limited to the DVDs
and documents that the plaintiffs identified by bates-stamp
number in their January 12, 2016 letter. Although, in their
January letter, the plaintiffs also objected to the
State's claim of work product and attorney-client
privilege for unknown withheld documents, they have not
briefed that issue, and, accordingly, we deem it to be waived
on appeal. See Aubert v. Aubert, 129 N.H. 422, 428
(1987) ("Arguments not briefed are waived on
appeal.").
II.
Analysis
A.
General Law and Standard of Review
Resolution
of this case requires that we interpret the Right-to-Know
Law. "The ordinary rules of statutory construction apply
to our review of the Right-to-Know Law." CaremarkPCS
Health v. N.H. Dep't of Admin. Servs., 167 N.H. 583,
587 (2015) (quotation omitted). "Thus, we are the final
arbiter of the legislature's intent as expressed in the
words of the statute considered as a whole."
Id. (quotation omitted). "When examining the
language of a statute, we ascribe the plain and ordinary
meaning to the words used." Id. (quotation
omitted). "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. (quotation omitted).
"We also interpret a statute in the context of the
overall statutory scheme and not in isolation."
Id. (quotation omitted).
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 CaremarkPCS
Health, 167 N.H. at 587. 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."
Montenegro v. City of Dover, 162 N.H. 641, 645
(2011); see N.H. CONST. pt. I, art. 8.
"Although the statute does not provide for unrestricted
access to public records, we resolve questions regarding the
Right-to-Know Law with a view to providing the utmost
information in order to best effectuate these statutory and
constitutional objectives." CaremarkPCS Health,
167 N.H. at 587 (quotation omitted). "As a result, we
broadly construe provisions favoring disclosure and interpret
the exemptions restrictively." Id. (quotation
omitted). We also look to the decisions of other
jurisdictions interpreting similar acts for guidance,
including federal interpretations of the federal Freedom of
Information Act (FOIA). 38 Endicott St. N. v. State Fire
Marshal, 163 N.H. 656, 660 (2012). Such similar laws,
because they are in pari materia, are
"interpretatively helpful, especially in understanding
the necessary accommodation of the competing interests
involved." Montenegro, 162 N.H. at 645
(quotation omitted).
"When
a public entity seeks to avoid disclosure of material under
the Right-to-Know Law, that entity bears a heavy burden to
shift the balance toward nondisclosure." Id. at
649. We review the trial court's statutory interpretation
and its application of law to undisputed facts de
novo. 38 Endicott St. N., 163 N.H. at 660.
At
issue in this case is RSA 91-A:5, which identifies materials
that are exempt from disclosure under the Right-to-Know Law,
including "confidential, commercial, or financial
information . . . and other files whose disclosure would
constitute invasion of privacy." RSA 91-A:5, IV. The
plaintiffs contend that the trial court misapplied RSA
91-A:5, IV when it upheld the State's withholding of
information that the State contended: (1) comprised attorney
work product; or (2) if disclosed, would constitute an
invasion of privacy.
B.
Information Withheld as Attorney Work Product
The
information that the State withheld on work product grounds
is related to a pending federal civil rights action brought
pursuant to 42 U.S.C. § 1983 (2012) challenging the
constitutionality, facially and as applied, of RSA 132:38
(2015). See Verified Complaint at 13-22, Mary
Rose Reddy & a. v. Joseph Foster & a., No.
1:14-cv-00299-JL (D.N.H. July 7, 2014), ECF No.
1.[2]
RSA 132:38, I, provides that, during the business hours of a
reproductive health care facility, "[n]o person shall
knowingly enter or remain on a public way or sidewalk
adjacent to" such a facility "within a radius up to
25 feet of any portion of an entrance, exit, or driveway
of" that facility. See RSA 132:38, IV. For ease
of reference, we refer to the federal litigation as the
"buffer zone litigation."
The
documents and materials at issue were created in anticipation
of a preliminary injunction hearing in that litigation.
However, the hearing never took place because the litigation
was stayed before it could be held. Pelletier, a plaintiff in
this case, is also a plaintiff in the buffer zone litigation.
See Verified Complaint, supra at 1.
The
plaintiffs specifically challenge the trial court's
determination that the following are exempt from disclosure
because they constitute attorney work product: (1) a signed,
undated draft declaration of Meagan Gallagher, President and
Chief Executive Officer of PPNNE, (the Gallagher declaration)
(W305-06); (2) July 2014 e-mail messages between the AG and
Jennifer Frizzell, Vice-President for Public Policy of PPNNE,
and between the AG and Dalia Vidunas, the Executive Director
of the Concord Feminist Health Center (W1475-76); and (3)
e-mail messages between the AG and counterparts in other
States (W36-294).
1.
Summary of Work Product Law
The
parties do not dispute, and we agree with the trial court,
that attorney work product, like communications protected by
the attorney-client privilege, falls within the Right-to-Know
Law exemption for "confidential" information. RSA
91-A:5, IV; see Prof. Fire Fighters of N.H. v. N.H. Local
Gov't Ctr., 163 N.H. 613, 614-15 (2012) (explaining
that "[c]ommunications protected under the
attorney-client privilege fall within the exemption for
confidential information"); see also FTC v. Grolier
Inc., 462 U.S. 19, 23 (1983) (interpreting FOIA to
exempt from disclosure information subject to the attorney
work product doctrine).
The
trial court applied New Hampshire common law to determine
whether the challenged documents were subject to the work
product doctrine. In so doing, the trial court erred. The
buffer zone litigation was pending in the Federal District
Court for the District of New Hampshire under that
court's federal question jurisdiction. See
Verified Complaint, supra at 3. Accordingly, federal
common law governs whether the documents challenged by the
plaintiffs are subject to the work product doctrine. See
Gargiulo v. Baystate Health, Inc., 826 F.Supp.2d 323,
325 (D. Mass. 2011) (observing that "[w]ith federal
question jurisdiction, courts usually apply federal
[privilege] law to the federal claims and pendent state law
claims"); Smith v. Alice Peck Day Memorial
Hosp., 148 F.R.D. 51, 53 (D.N.H. 1993) (same); Fed.
R. Ev. 501. Thus, as a matter of comity with the federal
court, and to ensure that the Right-to-Know Law is not used
as a means of circumventing the civil discovery rules that
govern the buffer zone litigation, we apply federal common
law. Although the trial court did not apply federal common
law in its analysis, we do so in the first instance because
we review de novo the trial court's application
of law to undisputed facts. 38 Endicott St. N., 163
N.H. at 660.
The
work product doctrine safeguards the work of an attorney done
"in anticipation of, or during, litigation from
disclosure to the opposing party." State of Maine v.
U.S. Dept. of Interior, 298 F.3d 60, 66 (1st Cir. 2002);
see Hickman v. Taylor, 329 U.S. 495, 508-13 (1947)
(declaring that witness interviews conducted by opposing
counsel in preparation for litigation are protected by a
qualified privilege); see also Fed. R. Civ. P.
26(b)(3). The doctrine encompasses work done by non-lawyers
at the direction of lawyers. United States v.
Nobles, 422 U.S. 225, 238-39 (1975).
Outside
the FOIA context, federal courts "distinguish between
'opinion' work product and 'ordinary' work
product, " and they "typically afford ordinary work
product only a qualified immunity, subject to a showing of
substantial need and undue hardship, while requiring a
hardier showing to justify the production of opinion work
product." In re San Juan Dupont Plaza Hotel Fire
Litigation, 859 F.2d 1007, 1014, 1015 (1st Cir. 1988);
see Hickman, 329 U.S. at 511-13. Opinion work
product "encompass[es] materials that contain the mental
impressions, conclusions, opinions or legal theories of an
attorney, " and ordinary work product "embrac[es]
the residue." In re San Juan Dupont Plaza Hotel Fire
Litigation, 859 F.2d at 1014; see Hickman, 329
U.S. at 511-13.
However,
for FOIA purposes, the distinction between
"opinion" and "ordinary" work product is
immaterial. See FTC, 462 U.S. at 26-27; 38
Endicott St. N., 163 N.H. at 660 (explaining that we
look to federal interpretations of the federal FOIA when
construing the Right-to-Know Law). This is so because the
test for disclosure under FOIA "is whether the documents
would be routinely or normally disclosed upon a showing of
relevance." FTC, 462 U.S. at 26 (quotations
omitted). Necessarily, information that is protected from
discovery under a qualified privilege is not "routinely
or normally disclosed upon a showing of relevance."
Id. (quotations omitted). As the Supreme Court has
explained, for FOIA purposes, "[i]t makes little
difference whether a privilege is absolute or qualified in
determining how it translates into a discrete category of
documents that Congress intended to exempt from disclosure
under [FOIA]. Whether its immunity from discovery is absolute
or qualified, a protected document cannot be said to be
subject to routine disclosure." Id. at 27
(quotation omitted); see A. Michael's Piano, Inc. v.
F.T.C., 18 F.3d 138, 146 (2d Cir. 1994). "This
approach prevents . . . FOIA from being used to circumvent
civil discovery rules." U.S. Dep't of Justice,
Guide to the Freedom of Information Act,
Exemption 5, at 3 (2013 ed.), available at
https://www.justice.gov/sites/default/files/oip/legacy/2014/07/
23/exemption5.pdf; see United States v. Weber Aircraft
Corp., 465 U.S. 792, 801 (1984) (explaining that a party
cannot "obtain through . . . FOIA material that is
normally privileged" because this "would create an
anomaly in that . . . FOIA could be used to supplement civil
discovery, " which is a construction of FOIA that the
Court has "consistently rejected").
We
adopt this paradigm in the context of the Right-to-Know Law
based upon similar concerns that the Right-to-Know Law could
be used to circumvent civil discovery rules. Indeed, at oral
argument, the plaintiffs agreed that the Right-to-Know Law
should not be used to circumvent civil discovery rules. Thus,
we hold that the test for disclosure under the Right-to-Know
Law "is whether the documents would be routinely or
normally disclosed upon a showing of relevance."
FTC, 462 U.S. at 26 (quotations omitted).
Accordingly, because documents protected by work product are
not "routinely or normally disclosed upon a showing of
relevance, " they are exempt from disclosure under the
Right-to-Know Law. Id. (quotations omitted).
2.
Gallagher Declaration
The
Gallagher declaration contains factual assertions about
PPNNE, interpretations of RSA 132:38 (the buffer zone
statute), statements about Gallagher's authority within
PPNNE, and statements about PPNNE's intentions with
regard to creating buffer zones as authorized by statute. The
record on appeal establishes that the declaration was
prepared at the direction of attorneys at the Attorney
General's Office for use in the buffer zone litigation.
Applying
state law, the trial court found that the Gallagher
declaration is subject to the work product doctrine because,
although it "includes some purely factual information,
" it "also contains [Gallagher's] policy
statements and opinions." See State v. Chagnon,
139 N.H. 671, 676 (1995) (explaining, in the context of a
criminal case, that "[w]itness statements that contain
purely factual information should not be considered work
product, " but "[i]f a report also includes notes
of the investigator or attorney recording his or her
analysis, mental process, impressions of what the witness
said, or reflecting trial strategy, such notes would fall
within the work product doctrine and could be
redacted"). The trial court determined that, although
the opinions were not those of the attorney who prepared the
declaration, the inclusion of such statements "in a
draft pleading may provide insight into the [AG's]
litigation strategy in the ongoing federal litigation."
The trial court further determined that the declaration was
"not merely a witness statement or notes from a witness
interview, " but, instead, was "essentially a draft
pleading for submission into evidence at a hearing in . . .
pending litigation." The court noted that the plaintiffs
in the buffer zone litigation "would likely not have
been able to discover this [declaration] prior to its
introduction into evidence in that litigation."
We
conclude that the Gallagher declaration is subject to the
work product doctrine under federal law, and, therefore,
agree with the trial court that it is exempt from disclosure
under the Right-to-Know Law. See Doyle v. Comm'r,
N.H. Dep't of Resources & Economic Dev., 163
N.H. 215, 222 (2012) (acknowledging that when "the trial
court reaches the correct result on mistaken grounds, we will
affirm if valid alternative grounds support the
decision" (quotation omitted)). The declaration was
prepared at the direction of attorneys at the Attorney
General's Office for use in the buffer zone litigation
and, as such, constitutes attorney work product. See In
re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d
at 1016 (explaining that draft pleadings constitute only
ordinary attorney work product because they are "drawn
with the realization that they will be served upon the other
parties to the case"); see also Nobles, 422
U.S. at 238-39 (determining that the work product doctrine
protects documents drafted by non-attorneys at an
attorney's direction). Accordingly, although we apply
federal law and the trial court applied state law, we reach
the same conclusion as the trial court reached - the
Gallagher declaration is subject to the work product
doctrine. We, therefore, agree with the trial court that the
Gallagher declaration was properly withheld from disclosure
under the Right-to-Know Law. See FTC, 462 U.S. at
26-27; see also Doyle, 163 N.H. at 222.
Contrary
to the plaintiffs' assertions, the entire
Gallagher declaration is exempt from disclosure under the
Right-to-Know Law, even though it arguably contains some
"purely factual information." Federal courts have
held that the work product doctrine encompasses purely
factual information. See Norwood v. F.A.A., 993 F.2d
570, 576 (6th Cir. 1993) (acknowledging that the work product
doctrine protects factual material); see also Church of
Scientology Intern. v. U.S. Dept. of Justice, 30 F.3d
224, 237 n.20 (1st Cir. 1994) (noting that "factual
material contained within a document subject to the work
product privilege often will be embraced within the
privilege").
Moreover,
even if the Gallagher declaration constitutes only
"ordinary" work product, and, therefore, would be
discoverable under federal rules of civil procedure upon a
showing of substantial need, the Right-to-Know Law does not
mandate disclosure. See A. Michael's Piano,
Inc., 18 F.3d at 146 (explaining that "[a]lthough
factual materials falling within the scope of attorney work
product" may be discovered in non-FOIA cases upon a
showing of substantial need, under FOIA, "the test is
whether information would routinely be disclosed in private
litigation" (quotations omitted)); Martin v. Office
of Special Counsel, MSPB, 819 F.2d 1181, 1187 (D.C. Cir.
1987) (ruling that FOIA exemption for attorney work product
protects documents regardless of whether they contain purely
factual information and concluding that FOIA did not mandate
disclosure of signed witness statements or of attorney's
interview notes because such documents constituted attorney
work product); Manna v. U.S. Dept. of Justice, 815
F.Supp. 798, 814 (D.N.J. 1993) (observing that "factual
work-product materials are immune from disclosure" under
FOIA), aff'd, 51 F.3d 1158 (3d Cir. 1995);
United Technologies Corp. v. N.L.R.B., 632 F.Supp.
776, 781 (D. Conn. 1985) (ruling that, if a document is
attorney work product, then the entire document is privileged
from disclosure under FOIA, even though it contains
non-privileged factual material).[3]
The
plaintiffs further assert that any privilege was waived when
PPNNE "shared" the Gallagher declaration with the
AG, which did not represent PPNNE in the federal litigation.
As previously discussed, however, PPNNE prepared the
declaration at the direction of the AG. Moreover, although
PPNNE was not a party in the buffer zone litigation, the
attorney general was one of the defendants. In this context,
there was no "waiver" of the work product doctrine.
See Nobles, 422 U.S. at 238-39 (explaining that the
work product doctrine extends to work performed by
non-attorneys at the direction of attorneys).
3.
E-mail messages to and from Frizzell and Vidunas
The
July 2014 e-mail messages between the AG and Frizzell
concerned the preparation of the Gallagher declaration. The
e-mail messages between the AG and Vidunas concerned the
preparation, for the buffer zone litigation, of an affidavit
of another individual. The trial court found that the e-mail
messages were properly withheld because they were ...