Posted by: Patricia Salkin | October 20, 2020

NH Supreme Court Finds that Technical Review Group was not “Public Body” for Purposes of Right-to-Know Law

This post was authored by Amy Lavine, Esq.

In Martin v. City of Rochester the New Hampshire Supreme Court held that the city’s technical review group was not a public body for purposes of the state’s Right-to-Know Law. The court also affirmed that the city’s photocopying fees for public records requests fell within the statutory requirements.

The primary issue in this case was the applicability of the state’s Right-to-Know Law to the city’s technical review group. As the court explained, the technical review group was created “to review projects that are submitted for review to the Planning Board, including site plans and subdivisions.” The technical review group included relevant city employees, including the chief planner, city engineer, code enforcement director, fire marshal, police captain, economic development manager, and a member of the conservation commission. The technical review group had no decision-making authority and merely provided advice to applicants and the planning board.

The plaintiff argued that the technical review group was a “public body” under New Hampshire’s Right-to-Know Law because is was an “advisory committee.” Before explaining its disagreement with this argument, the court recited the relevant statutory definitions. First, a “public body” was defined as “[a]ny legislative body, governing body, board, commission, committee, agency, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto.” Next, an “advisory committee” was defined as “any committee, council, commission, or other like body whose primary purpose is to consider an issue or issues designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of any public policy or legislation that may be promoted, modified, or opposed by such authority.”

The plaintiff contended that the technical review group was an “advisory committee” because its “primary purpose” was to consider land use applications and provide advice and recommendations to the planning board. The plaintiff also emphasized that the city manager, who was the appointing authority for the technical review group, was also a member of the planning board. The court did not agree, however. As it explained: “Although [technical review group] members make comments on permit applications that may be helpful to the planning board, it does not, as a group, render advice or make recommendations. Rather, each member reviews the application for compliance with the respective department codes and concerns. The record makes clear that, in considering land use applications, the [technical review group’s] role is to apprise applicants of the relevant concerns of the municipal departments represented by its members. This process is meant to assist the applicant in preparing the application for the planning board, consistent with the city’s constitutional obligation to provide assistance to all its citizens.”

The plaintiff also challenged the city’s fee schedule for photocopying public records, which included charges of fifty cents per page for the first 10 pages and ten cents per page for any additional pages. The plaintiff argued that these charges were not commensurate with the actual costs of reproducing the records, as required by the state’s Right-to-Know Law. The trial court had ruled against the plaintiff on this issue, and the court declined to substitute its judgment on appeal. It noted first that the statute did not impose any particular manner for determining the “actual cost” of reproducing public records, and then went on to examine the various evidence adduced at trial regarding the city’s reproduction costs, including a list of copying fees from other municipalities, testimony from the city manager as to the costs considered in establishing the fee schedule, such as the cost of leasing photocopiers, maintenance, and the cost of paper, and testimony from the city manager that the fee schedule did not include labor costs associated with making copies. Based on this record, the court found that the evidence was sufficient to support the trial court’s finding that the city’s fee schedule was “commensurate with ‘the actual cost of providing the photocopy.'”

Martin v. City of Rochester, 173 N.H. 378 (6/9/20).

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