Argued: March 21, 2018
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
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
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.
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.
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.
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.
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
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.
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.
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
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 ...