New Hampshire Right to Life v. Director, New Hampshire Charitable Trusts Unit

         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 ...