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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
Nos. 95-802
96-008
UNION LEADER CORPORATION & a.
v.
NEW HAMPSHIRE HOUSING FINANCE AUTHORITY
December 31, 1997
Malloy & Sullivan, of Manchester (Gregory V. Sullivan on the brief and orally), for plaintiff Union Leader Corporation.
Hill & Barlow, P.C., of Boston, Massachusetts (Joseph D. Steinfield and Robert A. Bertsche on the brief, and Mr. Steinfield orally), and Backus, Meyer, Solomon & Rood, of Manchester (Jon Meyer on the brief), for plaintiff Monitor Publishing Co.
Stein, Volinsky & Callaghan, of Concord (Peter G. Callaghan and Diane Perin Hock on the brief, and Mr. Callaghan orally), for intervenors Northeast Community Development Group and Stephen M. Duprey.
Bell & Falk, P.A., of Keene (Arnold R. Falk on the brief), and Jane E. Kirtley of Arlington, Virginia, by brief, for the Reporters Committee for Freedom of the Press, as amicus curiae.
Defendant New Hampshire Housing Finance Authority filed no brief.
JOHNSON, J. This consolidated appeal arises from petitions filed by the Union Leader Corporation (Union Leader) and Monitor Publishing Company (Monitor) (collectively the petitioners) seeking to gain access to documents under New Hampshire's Right-to-Know Law, RSA ch. 91-A (1990 & Supp. 1996), pertaining to housing developments financed by the New Hampshire Housing Finance Authority (authority). The intervenors, Northeast Community Development Group (Northeast) and Stephen M. Duprey, appeal a series of orders of the Superior Court (Sullivan, J.), arguing that the court: (1) erred when it ordered the intervenors to prepare a detailed document index pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir 1973), cert. denied, 415 U.S. 977 (1974), (Vaughn index); (2) arbitrarily and capriciously determined that the intervenors did not comply with its order; (3) impermissibly ordered summary disclosure of numerous documents as a sanction for noncompliance; and (4) erroneously ordered disclosure of certain documents that the court reviewed in camera. The intervenors also challenge the court's finding that the authority is subject to the Right-to-Know Law. The Union Leader filed a cross-appeal challenging the trial court's ruling that certain documents were exempt from disclosure. We affirm in part and reverse in part.
In March and April 1995, reporters for the Union Leader and Monitor filed requests pursuant to RSA chapter 91-A with the authority seeking documents pertaining to two housing developments, known as Woodland Green and Saco Woods, which had been partially financed by the authority. Northeast was the developer responsible for both projects, and Duprey is a principal in that firm. When the authority refused to turn over certain documents requested by the petitioners, each filed a petition for injunctive relief with the superior court seeking disclosure of the documents. See RSA 91-A:7 (1990). The petitions were consolidated, and the court subsequently allowed Northeast and Duprey to intervene in the litigation.
After many weeks had passed with no discernable progress in the litigation, the Monitor, in July 1995, filed a motion to compel the intervenors to produce a Vaughn index of the withheld documents for review by the trial court. As a result, the trial judge ordered the intervenors to produce a Vaughn index describing the withheld documents and offering an explanation of why such documents were exempt from disclosure under RSA chapter 91-A. The purpose of the index was to assist the court in determining which of the over 5,000 pages of requested documents should be reviewed in camera. While the intervenors did produce an index containing over 478 entries, the court concluded that the descriptions were too general and ordered the intervenors to prepare a second, more detailed index. The trial court warned that if it found the revised index was not in compliance, then the court would order summary disclosure. After the intervenors produced a "Further Memorandum" in early August 1995 to supplement the first Vaughn index, the Monitor moved to compel summary disclosure. In response, the intervenors filed a third version of the index, entitled a "Revised Further Memorandum." The court found that the intervenors had, for the most part, failed to comply with its order, and consequently ordered summary disclosure of most of the indexed documents. The court did review, in camera, a series of documents it found to be adequately described in the Vaughn index. In October 1995, the court issued a final order requiring disclosure of certain documents and finding the remainder exempt. The consolidated appeals and cross-appeal followed.
I. Standard of Review
Part I, article 8 of the New Hampshire Constitution provides that "the public's right to access to governmental proceedings and records shall not be unreasonably restricted." The Right-to-Know Law provides that "[e]very citizen . . . has the right to inspect all public records . . . except as otherwise prohibited by statute or RSA 91-A:5." RSA 91-A:4, I (1990). It was enacted "to ensure . . . the greatest possible public access to the actions, discussions and records of all public bodies." RSA 91-A:1 (1990).
The interpretation of the Right-to-Know Law is to be decided ultimately by this court. See Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475, 686 A.2d 310, 312 (1996). We resolve questions regarding the law with a view to providing the utmost information, see Menge v. Manchester, 113 N.H. 533, 537, 311 A.2d 116, 118 (1973), in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents. See Lodge v. Knowlton, 118 N.H. 574, 575, 391 A.2d 893, 894 (1978). Thus, while the statute does not provide for unrestricted access to public records, see Orford Teachers Assoc. v. Watson, 121 N.H. 118, 120, 427 A.2d 21, 23 (1981), we broadly construe provisions favoring disclosure and interpret the exemptions restrictively. See, e.g., Society for Protection of N.H. Forests v. Water Supply and Pollution Control Comm'n, 115 N.H. 192, 194, 337 A.2d 788, 789 (1975).
We also look to the decisions of other jurisdictions, since "other similar acts, because they are in pari materia, are interpretatively helpful, especially in understanding the necessary accommodation of the competing interests involved." Wilson v. Freedom of Information Com'n, 435 A.2d 353, 359 (Conn. 1980); see Board of Trustees v. Freedom of Info. Com'n, 436 A.2d 266, 270 (Conn. 1980); cf. Lodge, 118 N.H. at 576-77, 391 A.2d at 895 (this court followed federal test in absence of legislative standard for police investigation file).
II. State Agency
The Right-to-Know Law applies to "[a]ny board or commission of any state agency or authority." RSA 91-A:1-a, III (1990); see Lodge, 118 N.H. at 575, 391 A.2d at 893. The intervenors argue that the authority is not subject to the Right-to-Know Law because it is a private entity that functions independently of the State. "The ordinary rules of statutory construction apply to our review of the Right-to-Know Law, and we accordingly look to the plain meaning of the words used." Union Leader Corp. v. City of Nashua, 141 N.H. at 475, 686 A.2d at 312. Here, however, we are confronted with an entity that is not easily characterized as solely private or entirely public. While the declared intent of the statute is to create a "state housing finance authority," see Laws 1981, 466:1, X (emphasis added), it is also a "body politic and corporate having a distinct legal existence separate from the state and not constituting a department of state government." RSA 204-C:2 (1989). Moreover, in many of its day-to-day operations, the authority functions independently of the State. See RSA 204-C:8 (1989 & Supp. 1996), :9, :26, :44, :52 (1989).
In classifying the authority, we recognize that "any general definition can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done," Bradbury v. Shaw, 116 N.H. 388, 390, 360 A.2d 123, 125 (1976) (quotation and brackets omitted), and that we must "construe[] the right-to-know law to further the statutory objectives of increasing public access to governmental proceedings." Orford Teachers Assoc., 121 N.H. at 120, 427 A.2d at 23. Here, the balance favors a finding that the authority is subject to the Right-to-Know Law. The authority was created "to encourage the investment of private capital . . . through the use of public financing." Laws 1981, 466:1, X. It is deemed "to be a public instrumentality and the exercise by the authority of the powers conferred by [RSA chapter 204-C] shall be deemed and held to be the performance of public and essential governmental functions of the state." RSA 204-C:2 (emphasis added). It is empowered to "work with other state and federal agencies." RSA 204-C:8, V (1989) (emphasis added). The authority performs the essential government function of providing safe and affordable housing to the elderly and low income residents of our State. See Laws 1981, 466:1, X. Accordingly, we hold that it is subject to the Right-to-Know Law. Cf. Doe v. Sears, 263 S.E.2d 119, 121-22 (Ga.), cert. denied, 446 U.S. 979 (1980); Bradbury, 116 N.H. at 390, 360 A.2d at 125 (holding that "committee's involvement in governmental programs and decisions brought it within the scope of the right-to-know law"); A.R. Bldg Co. v. Pa. Housing Finance, 500 A.2d 943, 944 (Pa. Commw. Ct. 1985).
III. Vaughn Index
The intervenors next argue that the court improperly abdicated its responsibility to review in camera the thousands of pages of documents at issue when it ordered preparation of a Vaughn index. The Vaughn index is a procedure developed by the federal courts to effectuate the goal of broad disclosure of public documents and assist trial courts in cases involving a large number of documents. See Vaughn, 484 F.2d at 823-25. It has enjoyed almost "universal" acceptance. See Wiener v. F.B.I., 943 F.2d 972, 978 n.5 (9th Cir. 1991), cert. denied, 505 U.S. 1212 (1992). Generally, a Vaughn index will include a general description of each document withheld and a justification for its nondisclosure. See Church of Scientology Intern. v. U.S. Dept. of Justice, 30 F.3d 224, 228 (1st Cir. 1994). The index safeguards the adversary process in a setting where one party, the party resisting disclosure, has exclusive control of vital information:
It forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.
Id. (quotation and brackets omitted).
The intervenors argue that our opinion in Petition of Keene Sentinel, 136 N.H. 121, 130, 612 A.2d 911, 917 (1992), makes in camera review of all documents mandatory, even in large document cases such as this. We disagree. It is true that we stated in Keene Sentinel that "[t]he court shall separately examine each document in question in camera . . . on the record" to determine whether disclosure is appropriate. Keene Sentinel, 136 N.H. at 130, 612 A.2d at 917. We also stated, however, that "[w]hen appropriate, the document's subject matter . . . can be described in general terms such that persons objecting to closure can present an adequate argument to the court." Id.
We hold that the trial court did not abdicate its responsibilities under Keene Sentinel when it ordered preparation of a Vaughn index. The overriding aim of the Vaughn index is to maximize disclosure of public documents -- a purpose consistent with the aims of the Right-to-Know Law. Cf. Union Leader Corp. v. City of Nashua, 141 N.H. at 476, 686 A.2d at 312. A Vaughn index is particularly useful in large document cases. While in theory the court could "examine a document in sufficient depth to test the accuracy of a government characterization, . . . . where the documents in issue constitute hundreds or even thousands of pages, it is unreasonable to expect a trial judge to do as thorough a job of illumination and characterization." Vaughn, 484 F.2d at 825.
Furthermore, Keene Sentinel emphasizes that the burden of proof rests with the party seeking nondisclosure. Keene Sentinel, 136 N.H. at 128, 612 A.2d at 914-15. Requiring in camera inspection of all documents in a large document case would undermine this holding since it would shift the burden of proof from the party resisting disclosure, see Union Leader Corp. v. City of Nashua, 141 N.H. at 476, 686 A.2d at 313, to the petitioners, who with limited knowledge must argue that a document is not exempt, Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 984 (3d Cir. 1981), while straining the resources of the court, which is forced to "wad[e] through" potentially voluminous documents to determine whether an exemption applies. Powell v. United States Dept. of Justice, 584 F. Supp. 1508, 1512 (N.D. Cal. 1984). Consequently, we hold that in large document cases, where the imbalance of information distorts the adversary process such that neither the plaintiffs nor the court can effectively review disputed evidence, use of a Vaughn index is entirely appropriate.
The intervenors next argue that even if use of a Vaughn index was appropriate in this case, the superior court's finding of noncompliance was erroneous. We disagree. We review de novo "whether the [intervenor's] explanation was full and specific enough to afford the [petitioners] a meaningful opportunity to contest, and the [superior] court an adequate foundation to review, the soundness of the withholding." Davin v. U.S. Dept. of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995) (quotation omitted); see Church of Scientology Intern., 30 F.3d at 228. For an entry in the index to be sufficient, it must "provide the connective tissue between the document, the deletion, the exemption and the explanation." Davin, 60 F.3d at 1051 (quotation omitted). "Specificity is the defining requirement of the Vaughn index, [and] [u]nless the agency discloses as much information as possible without thwarting the claimed exemption's purpose, the adversarial process is unnecessarily compromised." Wiener, 943 F.2d at 979 (quotations, citations, and brackets omitted).
The intervenors "Further Memorandum" included 478 entries purporting to explain why the nondisclosed documents were exempt from disclosure. The trial court found that most of the entries lacked sufficient legal and factual information to enable either the court or the petitioners to determine why the documents should be exempt from disclosure. We have reviewed each disputed entry individually in order to evaluate whether they contained the hallmarks of an adequate Vaughn index; namely, whether the entry contains "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Church of Scientology Intern., 30 F.3d at 231 (quotations and emphasis omitted); see, e.g., King v. U.S. Dept. of Justice, 830 F.2d 210, 225 (D.C. Cir. 1987) (goal of a Vaughn index is descriptive accuracy).
Our review reveals that the trial court correctly found the disputed entries inadequate. As the intervenors themselves noted in their brief, "the court wanted the intervenors to state their factual and legal bases for their position." The disputed entries fail to meet this standard. These entries, while stating the legal bases upon which the exemptions are claimed, fail to give the slightest factual reference that would enable the court to determine whether the claimed legal exemption applies. For example, entry 187 while listing a number of legal bases upon which the document could be excluded, states only that it is a "NHHFA memorandum from Richards to Monier dated 1/10/89 discussing issues and proposing solutions." Entry 220 states merely that it is a "[h]andwritten memo dated 3/27/90" before listing a series of legal claims upon which this unspecified "handwritten memo" should be deemed exempt. Entry 224 states merely that it is a "[l]etter of a financial institution dated 6/7/88 to NCDG." These bare assertions do little to instruct the court as to why the documents may contain information that is exempt from disclosure. Cf. Church of Scientology Intern., 30 F.3d at 231 (entries including supporting affidavits inadequate because they "contain only general and conclusory assertions," and make "only broad statements essentially explaining that the documents were withheld because they contain a type of information generally protected by that particular exemption"). Simply put, "the descriptions for many of the documents are too cursory to permit debate, or an informed judgment, about whether they properly may be withheld," id. at 230, and the intervenors "fell short of providing the [petitioners] with a meaningful opportunity to challenge a substantial number of [their] unilateral decisions to withhold documents." Id. at 233 (quotation omitted).
Nonetheless, the intervenors argue that the trial court's findings were erroneous because the "trial court had no basis for deciding whether the index did in fact fairly describe the document" until it conducted an in camera review. "[I]n camera examination is not a substitute for the [intervenor's] obligation to provide detailed public indexes and justifications whenever possible. Rather it will . . . assist the [courts] as a supplement to the detailed public record and adversary testing of [their] justifications for withholding information." Lykins v. United States Dept. of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984).
The intervenors also complain that the trial court erred because it was "inconsistent and confusing in identifying its Vaughn index requirements." This assertion is without merit. The court's order regarding preparation of the Vaughn index stated that "[t]he intervenors are ordered to provide to the court . . . an itemized, detailed explanation in connection with each document that they claim is exempt from production," and instructed the intervenors to consult Vaughn and its progeny. The order set forth specific requirements for each entry. We note that the intervenors conceded in their brief that they understood that the court wanted them "to state their factual and legal bases for their position," a task they largely failed to accomplish.
The intervenors also argue that it was improper for the court to order summary disclosure of all documents inadequately described by the Vaughn index. We disagree. The judicial remedy of summary disclosure may be appropriate where a public agency has improperly withheld agency records, cf. Coastal States Gas Corp. v. Department of Energy, 644 F.2d at 974, including when an agency has failed, after adequate notice, to supply the court with a proper Vaughn index, see Church of Scientology Intern., 30 F.3d at 240. We find that this remedy is also available to trial courts where a party, who controls the documents in question but is not the public agency, fails to supply an adequate Vaughn index. When a party violates a statute or court rule, it is within the discretion of the trial court to impose a reasonable sanction. Cf. Breagy v. Stark, 138 N.H. 479, 483, 642 A.2d 329, 333 (1994). Imposition of heavy penalties for violating the Right-to-Know Law may be appropriate to ensure the broadest possible access to public records, cf. Hardiman v. Dover, 111 N.H. 377, 380, 284 A.2d 905, 907 (1971), and thus summary disclosure is one remedy available to trial courts where a non-public body has failed to reasonably comply with an order for a Vaughn index. Here, the intervenors were given more than one opportunity to comply with the court's order, cf. Powell, 584 F. Supp. at 1515 n.5, and were informed that noncompliance would result in summary disclosure. We conclude that in this case the trial court did not abuse its discretion by ordering summary disclosure.
IV. In Camera Review
The final issue raised by the intervenors, and the only issue raised by the Union Leader, is whether the trial court properly ruled upon the documents it reviewed in camera. The Right-to-Know Law provides that "[r]ecords pertaining to internal personnel practices; confidential, commercial, or financial information; . . . and other files whose disclosure would constitute invasion of privacy" are exempt from disclosure. RSA 91-A:5, IV (Supp. 1996). The trial court reviewed in camera several hundred pages of documents grouped into seventeen exhibits to determine whether they were discoverable pursuant to RSA 91-A:5, IV. While both the Union Leader and the intervenors now dispute the trial court's findings, their legal arguments concern the proper interpretation of the exemptions for "confidential, commercial, or financial information," and for "other files whose disclosure would constitute invasion of privacy."
A. "Confidential, Commercial, or Financial Information"
The parties' arguments require us to define with some specificity the statutory exemption for "confidential, commercial, or financial information." RSA 91-A:5, IV. Our statute, unlike its federal counterpart, which exempts "commercial or financial information obtained from a person and privileged or confidential," see 5 U.S.C.