Gallagher v. Town of Windham

427 A.2d 37, 121 N.H. 156, 1981 N.H. LEXIS 271
CourtSupreme Court of New Hampshire
DecidedMarch 11, 1981
DocketNo. 80-103
StatusPublished
Cited by2 cases

This text of 427 A.2d 37 (Gallagher v. Town of Windham) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallagher v. Town of Windham, 427 A.2d 37, 121 N.H. 156, 1981 N.H. LEXIS 271 (N.H. 1981).

Opinions

Bois, J.

This appeal arises from two separate actions, which were consolidated for trial before a master. In the first action the plaintiff Gallagher alleges that the defendant town violated RSA ch. 91-A (Supp. 1979) by denying her access to and/or copies of plans relating to a proposed industrial park, which the town planning board eventually approved. In the second action the plaintiff Gallagher and other citizens of the town challenge the validity of the planning board’s decision under RSA 36:34 (Supp. 1979), asserting that the alleged violation of RSA ch. 91-A (Supp. 1979) renders the planning board decision illegal. The plaintiffs further challenge the board’s approval of the plans on the ground that the site plan allegedly included a private access road passing through a residential zone to the proposed industrial park and on the ground that the board unlawfully failed to consider the protective criteria for specific land use, as required by the zoning ordinance, because the site plan did not contemplate a specific use. After a hearing on the merits, the Master (Jack B. Middleton, Esq.) recommended dismissal of both actions, which the Court (Randall, J.) approved. We affirm.

On April 16, 1979, the plaintiff, Eleanor Gallagher, went to the office of the town building inspector and requested copies of any plans on file which pertained to a proposed industrial park within the town. The building inspector informed her that she could look at the preliminary plans of the project on file but that the town could not provide her with copies of them. The following day, a plaintiff in the second action, Diane Wilkinson, went to the office of the building inspector and requested copies of the plans. Although the building inspector offered her the opportunity to see the plans and make tracings or copies, he again stated that he would not provide her with copies of the plans.

On April 18, 1979, Mrs. Gallagher returned to the building inspector’s office to trace any plans on file. She was informed that the plans were not at the office because the chairman of the planning board had removed them for the day. The chairman testified that he had removed the plans for the purpose of conducting a field survey in preparation for a planning board meeting which was scheduled for that evening. He further testified that he had returned the plans to the office prior to the planning board meeting. This was the only occasion that the town could not make the plans available for inspection by the plaintiff. On the evening of April 18, 1979, the developers submitted a new set of plans, which [158]*158they later amended, refiled on May 10, 1979, and deposited on May 11, 1979, with the building inspector where they remained on file. Mrs. Gallagher brought suit against the town on May 3, 1979, alleging that the town had denied her access to the plans, which were public records, thereby violating RSA ch. 91-A, the right-to-know statute.

A public hearing on the industrial park site plan was held on May 23, 1979. With the exception of two resubmitted pages, the plans under consideration at this meeting were the same as those deposited with the building inspector on May 11, 1979. On June 6, 1979, the planning board approved the site plan.

The plaintiff argues that the town violated RSA 91-A:4 because the absence of the plan from the files of the building inspector on April 18, 1979, constituted a denial of access to public records which is prohibited under the statute. RSA 91-A:4 provides:

“Every citizen during the regular or business hours of all such bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, including minutes of meetings of the bodies or agencies, and to make memoranda abstracts, photographic or photostatic copies, of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5.”

We agree with the finding of the master that the town did not deny the plaintiff access to the plans in violation of RSA 91-A:4, because, with the exception of April 18, 1979, when the chairman had removed the plans from the files on official business, it provided her with the opportunity to inspect, trace, photograph or make notes of the plans. RSA 91-A:4, however, is silent regarding the right of access to public records when they are unavailable. The town argues that the right to access is logically connected to the ability of the town to provide access.

RSA 41:61, however, states that “[n]o town officer having the custody of its public records or documents shall loan the same or permit them to be taken from the place where they are usually kept except when necessary for the discharge of official duty (Emphasis added.) The statute further provides that public records “shall be open at all proper times for public inspection and exami[159]*159nation.” RSA 41:61; Segre v. Ring, 102 N.H. 556, 557, 163 A.2d 4, 6 (1980).

The master found that the removal of the plans by the chairman of the planning board for the purpose of conducting a field survey had a legitimate purpose and, therefore, was not accomplished to deny the plaintiff access to the plans. We agree with the master and conclude that it was reasonable for the chairman of the planning board to remove the plans to prepare for the meeting that evening in furtherance of his duties as a town official. Accordingly, the legitimate use of the plans by the public official which resulted in a limited period of their unavailability did not constitute a denial of access to public records.

The plaintiff further argues that the town violated RSA ch. 91-A by refusing to provide her with copies of the industrial park plans. She specifically asserts that the town had a statutory obligation to provide her with photographic or photostatic copies of these public records. The plaintiff also contends that the town had a copying machine at the town hall which the town should have used to produce the requested copies.

The master perceived the real issue to be whether the town violated the provisions of the statute by not providing copies of the plans to the plaintiff.

RSA 91-A:4 does not contain language imposing an absolute duty on towns or agencies to provide copies of public records to citizens. Rather, the statute contemplates that public records be made available to individual members of the public for their inspection and reproduction. This is clear from the language of the statute itself, which provides that “[e]very citizen . . . has the right to inspect all public records . . . and to make memoranda abstracts, photographic or photostatic copies ....” (Emphasis added.)

In Menge v. Manchester, 113 N.H. 533, 311 A.2d 116 (1973), this court considered whether the plaintiff had a right to obtain a copy of a computerized tape of approximately 35,000 field record cards which the City of Manchester used in assessing real estate taxes. The cost of the copy was approximately $55 whereas the cost of examining each card by hand was estimated to be $10,000. We stated:

“The ease and minimal cost of the tape reproduction as compared to the expense and labor involved in abstracting the information from the field cards are a common [160]*160sense argument in favor of the former. RSA 91-A:4 (Supp.

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Bluebook (online)
427 A.2d 37, 121 N.H. 156, 1981 N.H. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-town-of-windham-nh-1981.