Gallagher v. Town of Windham

Douglas and Brock, JJ.,

dissenting: This court has consistently construed RSA ch. 91-A “with a view to providing the utmost information.” Menge v. Manchester, 113 N.H. 533, 537, 311 A.2d 116, 118 (1973); see, e.g., Orford Teachers Association v. Watson, 121 N.H. 118, 427 A.2d 21 (1981); Mans v. Lebanon School Bd., 112 N.H. 160, 163-64, 290 A.2d 866, 867 (1972). The legislature approved that policy when it enacted a preamble to the statute, RSA 91-A:1 (Supp. 1979); and the public did the same when it amended the State constitution. N.H. CONST, pt. I, art. 8 (Supp. 1979). The majority opinion in this case is a retrenchment from that general principle.

While the majority reminds town officials that “they should assist the members of the community in obtaining public documents whenever it is reasonable to do so,” it upholds the master’s finding that it was reasonable for the tb;wn to withhold such assistance in this case. We disagree with that determination. The fact that it might have involved more than minimal expense and labor for the town to help the plaintiff does not mean that it was unreasonable for it to expend that effort. Any analysis of what help a citizen may reasonably expect from his local government must take into consideration the fact that “[a]ll power residing originally *163in, and being derived from, the people, all the . . . officers of government are their substitutes and agents, and at all times accountable to them.” N.H. Const, pt. I, art. 8 (Supp. 1979); see N.H. Const, pt. I, art. 1; Carbonneau v. Town of Rye, 120 N.H. 96, 99, 411 A.2d 1110, 1112 (1980). Helping citizens gain access to public records is a part of a public official’s duties under RSA 41:61, not an additional duty.

The facts of this case lead us to doubt that the town took that obligation seriously. The record reveals that the plaintiff Gallagher made repeated requests in several town offices to make copies herself or to have town employees make copies on the town machine, or to borrow one of the six plans to make copies elsewhere. Although the record does not show that she offered to pay for the expense, that fact can be inferred from evidence that she had previously used the town machine to make copies at her own expense. In addition, during oral argument her counsel agreed that his client was willing to pay for town employees to make photocopies of the plans.

The plaintiff did not insist that the town furnish her with copies of the plans, but that would not have been an unreasonable solution. In fact, the attorney general’s recent interpretive guidelines on RSA 91-A:4, followed by State agencies, suggest such a course of action:

“While the Right to Know Law does not require the public body to bear the cost of reproductions, we suggest that public bodies make their reproduction equipment available, if possible, at a reasonable cost in order to comply with the spirit of the law. This does not require the public to use the public body’s reproduction facilities.”

Office of the Attorney General, State of New Hampshire, Right to Know Law Memorandum at p. 15 (May 2, 1980). The guidelines go on to note:

“This does not give anyone the right to remove any records from the premises without permission. ...”

Id., which implies that records may be released with permission. That would have been another possible solution in this case. The town could have released the documents to the plaintiff upon posting of a bond, which would have allowed her to make copies of the plans at her own expense through her own labor. If the town is *164concerned that such a system would make documents unavailable to other citizens during the time when they are removed for copying, then it can require that a developer submit more than the four copies currently required.

We would not hold that RSA ch. 91-A requires a town to buy a copy machine or to make copies for all citizens who request them, but would only require that a town make every effort to fulfill the spirit of the law by working with its citizens to help them gain access to public documents filed with their government. Reasonable persons could have arrived at a solution to the problems encountered by the parties in this case. The fact that a selectman told the plaintiff that she would receive no more copies of plans indicates that there was friction between the parties which may have contributed to the town’s resistance. In order to effectuate the broad purposes of RSA 91-A:4, a town must make more than the minimal efforts at cooperation shown here. See Menge v. Manchester, 113 N.H. at 538, 311 A.2d at 119. Accordingly, we dissent.