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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Carroll No. 2010-688

THOMAS ETTINGER & a. v. TOWN OF MADISON PLANNING BOARD Argued: October 13, 2011 Opinion Issued: December 8, 2011 Hastings Law Office, P.A., of Fryeburg, Maine (Peter J. Malia, Jr. on the brief and orally), for the plaintiffs. Mitchell Municipal Group, P.A., of Laconia (Laura A. Spector on the brief and orally), for the defendant. LYNN, J. The defendant, Town of Madison Planning Board (the Board), appeals, and the plaintiffs, Thomas and Margaret Ettinger, cross-appeal, the decision of the Superior Court (Houran, J.), which: (1) held that a private session by the Board on March 3, 2010, violated the Right-to-Know Law, RSA 91-A:2 (Supp. 2010); and (2) denied the plaintiffs' request for attorney's fees. We affirm. I The trial court found the following facts. In June 2009, the Pomeroy Limited Partnership (Pomeroy) received conditional approval from the Board to

convert the buildings on its property to a condominium ownership form and to convey part of the property to the Nature Conservancy. In January 2010, the plaintiffs, whose property abuts the Pomeroy property, requested a public hearing to allow them to challenge the approval of the condominium plan. The Board scheduled a public hearing for March 3, 2010, to consider whether to grant final approval of the Pomeroy application. The plaintiffs' attorney appeared at that hearing. At 7:00 p.m., the scheduled time of the hearing, the Board, joined by its administrative assistant, went into a private session for thirty minutes. In that session, they read and discussed emails from the Board's attorney, a memorandum summarizing legal advice relayed over the phone from the Board's attorney to the Board's administrative assistant, and letters from the plaintiffs' attorney. The Board then reopened the hearing at 7:34 p.m. and, after hearing the plaintiffs' attorney on the matter, granted final approval to the Pomeroy application. The plaintiffs filed a petition in superior court, arguing that the private session violated New Hampshire's Right-to-Know Law, RSA ch. 91-A (2001 & Supp. 2010), and seeking an award of attorney's fees under RSA 91-A:8, I (Supp. 2010). The superior court agreed that the private session violated the Right-to-Know Law, but refused either to invalidate the Board's approval of the Pomeroy application or to award the plaintiffs attorney's fees. This appeal followed. II The Board argues that its members were permitted to read a letter from counsel and discuss its contents in a private session under the "consultation with legal counsel" exclusion from the definition of a "meeting" in the Right-toKnow Law. See RSA 91-A:2, I(b). The Board's view is that a consultation with legal counsel encompasses discussions of the advice of its attorney even when the attorney is not present at the discussion, or, in the alternative, that the legislature intended nothing more than to "codify the common law attorney client privilege as it applies to public bodies." The meaning of the Right-toKnow Law in this context is a question of first impression. The interpretation of the Right-to-Know Law is to be decided ultimately by this court. Murray v. N.H. Div. of State Police, 154 N.H. 579, 581 (2006). We apply the ordinary rules of statutory construction to our review of the Right-to-Know Law, and we accordingly first look to the plain meaning of the words used. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996). Words and phrases are construed according to the common and approved usage of the language unless from the statute it appears that a different meaning was intended. RSA 21:1, :2 (2000). We resolve questions regarding

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the Right-to-Know Law with a view to best effectuate the statutory objective of facilitating open access to the actions and decisions of public bodies. See Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 546 (1997). As a result, we broadly construe provisions favoring disclosure and interpret the exemptions restrictively. Goode v. N.H. Legislative Budget Assistant, 145 N.H. 451, 453 (2000). A public body bears the burden of proving that it may hold a nonpublic assembly of its members. Cf. Hampton Police Assoc. v. Town of Hampton, 162 N.H. 7, 14 (2011); Lambert v. Belknap County Convention, 157 N.H. 375, 379 (2008). The Right-to-Know Law provides that "all meetings, whether held in person, by means of telephone or electronic communication, or in any other manner, shall be open to the public." RSA 91-A:2, II (Supp. 2010). RSA 91-A:1 (2001) expresses the legislative policy of the statute: "Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter 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." The statute defines a meeting as the convening of a quorum of the membership of a public body "for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power." RSA 91-A:2, I (Supp. 2010). "Consultation with legal counsel," however, is excluded from that definition and is therefore not subject to the various requirements for open meetings contained in RSA 91-A:2, II. RSA 91-A:2, I(b) (Supp. 2010). With this statutory scheme in mind, we must determine whether the Board's private session qualifies as a "consultation with legal counsel" under RSA 91-A:2, I(b). At the outset, we note that, although the Board members merely read the memoranda and emails containing the advice of counsel during the first twenty-five minutes of their private session, they also discussed the contents of those documents at the end of the session. Since any part of the private session found to violate the Right-to-Know Law would be grounds for affirming the superior court's decision, and since the statute defines a meeting as convening a quorum "for the purpose of discussing or acting upon" matters within a public body's purview, RSA 91-A:2, I, we focus here only on whether the Board's brief discussion violated the Right-to-Know Law. We agree with the trial court that the literal meaning of the "consultation with legal counsel" exclusion does not encompass the discussion among the board members and its administrative assistant that occurred here. A "consultation" is "a council or conference (as between two or more persons) usually to consider a special matter." Webster's Third New International Dictionary 490 (unabridged ed. 2002); accord Ballentine's Law Dictionary 257 (3d ed. 1969) ("The deliberation of two or more persons on some matter; a council or conference to consider a special case."). Read together with the

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phrase "with legal counsel," a "consultation" does not encompass a situation in which the public body convenes a quorum of its membership, as set out in RSA 91-A:2, I, only to discuss a legal memorandum prepared by, or at the direction of, the public body's attorney where that attorney is unavailable at the time of the discussion. At the very least, that clause requires the ability to have a contemporaneous exchange of words and ideas between the public body and its attorney. Anticipating the difficulties a literal construction of the statute poses for its argument, the Board argues that a consultation with legal counsel is coextensive with the common-law attorney-client privilege, and therefore allows public bodies to enter nonpublic sessions to discuss the written advice of counsel. We disagree. As an initial matter, the attorney-client privilege is an evidentiary rule allowing the attorney or client to withhold information shared in the course of the attorney-client relationship. The classic articulation of the privilege is as follows: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser unless the protection is waived by the client or his legal representatives. Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966) (citing 8 J. Wigmore, Evidence

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