Blanket Right-to-Know Denials Require Fee Awards When Non-Exempt Material Is Obvious

1. Introduction

Town of Hanover v. Valley News arises from a Right-to-Know request under RSA chapter 91-A for arrest records of two Dartmouth College students arrested in Hanover in October 2023. Valley News sought the records; Hanover refused, citing the pendency of the criminal prosecution and invoking “Murray exemptions” (derived from FOIA’s law-enforcement exemptions) to justify nondisclosure.

Hanover filed a declaratory judgment action asking whether it was required to release the arrest records during an active criminal prosecution. Valley News counterclaimed for disclosure (with redaction of personal identifying information) and sought fees and costs under RSA 91-A:8, I.

The central issues ultimately presented to the Supreme Court were:

• Procedure/timing: whether Valley News’s appeal and its post-disclosure motion to reopen for fees/costs were timely.
• Fees/costs standard: whether Hanover “knew or should have known” its conduct violated RSA chapter 91-A, triggering mandatory attorney’s fees, and whether the lawsuit was “necessary” for access.
• Substance: whether a public body may issue a blanket denial under unsettled law-enforcement exemptions when at least some material is plainly non-exempt (including publicly available material contained in police files).

2. Summary of the Opinion

The Supreme Court reversed the trial court’s refusal to reopen the case to award fees and costs. It held that Valley News’s motion to reopen was timely and, on the merits, that Hanover should have known its blanket denial violated the Right-to-Know Law because at least some responsive material—specifically, documents already publicly available but “obtained” and included in the arrest reports—was indisputably a “governmental record” subject to disclosure. The Court remanded for an award of reasonable attorney’s fees and costs under RSA 91-A:8, I.

3. Analysis

A. Precedents Cited

Murray v. New Hampshire Division of State Police, 154 N.H. 579 (2006)

Murray is the doctrinal source of the “Murray exemptions,” importing FOIA’s law-enforcement withholding categories (5 U.S.C. § 552(b)(7)(A)-(F)) into New Hampshire practice as a framework “for the guidance of our judges” in balancing interests around police investigatory files. Hanover relied on exemptions (A) (interference with enforcement proceedings) and (B) (deprivation of fair trial/impartial adjudication).

In this case, the Supreme Court did not resolve the full scope of the Murray (B) exemption. Instead, it treated the dispute as turning on a narrower, more practical point: even if some portions might arguably implicate (A) or (B), Hanover could not justify withholding everything where some portions plainly did not.

Lodge v. Knowlton, 118 N.H. 574 (1978) and Montenegro v. City of Dover, 162 N.H. 641 (2011)

Lodge is cited for the proposition that adopting a FOIA-like standard was meant as guidance due to the “absence of legislative standards” for police investigatory files under RSA chapter 91-A. Montenegro clarifies that Murray intended to adopt FOIA’s test as amended after Lodge. In Town of Hanover, these cases framed the Murray exemptions as a judge-made balancing tool rather than a statutory carve-out—relevant because Hanover’s argument leaned heavily on “unsettled” contours to justify categorical nondisclosure.

38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656 (2012)

38 Endicott St. N. supplies the Court’s two-step structure for Murray analysis: (1) whether the material was “compiled for law enforcement purposes,” and (2) whether disclosure would produce one of the enumerated harms (A)-(F). The Court used this framework to underscore why Hanover’s position was untenable as to plainly public, generally applicable documents (e.g., Dartmouth conduct policies): they did not plausibly satisfy the harm prongs of (A) or (B).

Colquhoun v. City of Nashua, 175 N.H. 474 (2022)

Colquhoun was the Court’s key fees precedent. There, even without resolving the underlying “unsettled” legal issue, the Court held a public body can still “know or should have known” its conduct violated RSA 91-A when it makes an overbroad, categorical denial instead of taking lawful steps to comply. Town of Hanover applies that same reasoning: purported uncertainty about Murray (B) did not permit a blanket refusal when at least some responsive content was obviously disclosable.

Michaud v. Town of Campton Police Dep't, 176 N.H. 542 (2024), 2024 N.H. 19

Michaud is cited for the baseline rule: RSA chapter 91-A requires disclosure of “governmental records” unless prohibited by statute or an RSA 91-A:5 exemption applies. This provided the doctrinal bridge to the Court’s textual focus on RSA 91-A:1-a, III (“created, accepted, or obtained”)—which made the “publicly available elsewhere” documents still subject to inspection once obtained and used by police in the file.

ATV Watch v. N.H. Dep't of Resources & Econ. Dev., 155 N.H. 434 (2007)

The opinion’s footnote uses ATV Watch to emphasize a technical but important point: under RSA 91-A:8, I, the “knew or should have known” finding is required for attorney’s fees but not for costs. This matters because the trial court, on reconsideration, vacated both fees and costs based on its change of mind about Hanover’s knowledge. The Supreme Court’s ultimate disposition (remanding for both fees and costs) is consistent with its finding that Hanover should have known; but the citation signals careful statutory parsing and warns lower courts against collapsing distinct statutory prerequisites.

Riverbend Condo Ass'n v. Groundhog Landscaping & Prop. Maint., 173 N.H. 372 (2020)

Riverbend appears in the procedural timeliness discussion. The Court distinguished Valley News’s motion to reopen from a motion for reconsideration (which would have been subject to the Superior Court Rule 12(e) 10-day deadline). This supported the conclusion that the post-disclosure motion was not time-barred.

Salcetti v. City of Keene, No. 2019-0217 (non-precedential order at 13), 2020 WL 3167669 (N.H. June 3, 2020)

The Court cited Salcetti for its policy encouragement of cooperation in resolving RSA chapter 91-A disputes. But it limited that sentiment: collaboration does not excuse conduct that a public body knew or should have known violated the statute, particularly given the mandatory “shall be liable” language of RSA 91-A:8, I.

B. Legal Reasoning

1) Timeliness: appeal and motion to reopen

On (i), the Court accepted Valley News’s representation that it was appealing the November 5 order denying reopening, not the August 14 order, and rejected the argument that a stray reference to the August 14 ruling rendered the appeal untimely under Supreme Court Rule 7(1)(A).

On (ii), Hanover argued the motion to reopen came “51 days” after the relevant order and thus was untimely. The Court rejected this because Hanover identified no rule-based filing deadline violated by a motion to reopen, and because the motion’s premise (Hanover’s “knew or should have known” status) was meaningfully assessable only after Valley News actually received the records on September 18, 2024.

2) The statutory fee/cost framework under RSA 91-A:8, I is mandatory when predicates are met

The Court treated RSA 91-A:8, I as imposing mandatory liability (“shall be liable”) once the statutory findings are made:

• Costs: the lawsuit was necessary to enforce compliance (or address a purposeful violation).
• Attorney’s fees: plus, the public body “knew or should have known” its conduct violated RSA chapter 91-A.

3) “Unsettled law” did not justify a blanket denial where some content was obviously disclosable

The Court’s decisive move was to reframe the dispute away from the outer limits of Murray (B) and toward the narrower question: Did Hanover have to know that at least some portions were not exempt? The answer was yes.

Two arrest reports prepared by Lieutenant Schibuola incorporated materials that were already publicly available (e.g., Dartmouth’s president’s message, Dartmouth conduct policies, student position statements). The Court reasoned:

• Under RSA 91-A:1-a, III, a “governmental record” includes information “obtained” by an agency in furtherance of its official function.
• Therefore, once Hanover police obtained and used those materials in the arrest reports, they were “governmental records” subject to inspection absent an applicable exemption.
• Hanover offered no plausible explanation—under Murray (A) or (B)—for how disclosing generally applicable campus policies or already-public statements could “reasonably be expected” to interfere with proceedings or deprive a fair trial.

The Court rejected Hanover’s underlying premise: that uncertainty about Murray (B) entitled it to withhold the requested records “in their entirety,” including portions that “do not plausibly implicate” the exemption. Relying on Colquhoun v. City of Nashua, it treated the “blanket denial” as the actionable violation—because a public body should know that non-exempt material must at least be disclosed (or segregated and released) rather than withheld wholesale.

4) “Necessity of the lawsuit” was satisfied even though Hanover filed first

Hanover argued fees were unwarranted because Valley News was not “forced” to sue—Hanover initiated the declaratory action. The Court rejected this because the trial court had already found (and Hanover did not challenge on reconsideration) that the proceedings were necessary to make the records available and that Hanover’s actions drove Valley News to retain counsel to secure access. The Supreme Court accepted that unchallenged finding and cited ATV Watch v. N.H. Dep't of Resources & Econ. Dev. for the principle that fees are available when counsel is necessary to secure access.

5) “Good faith” collaboration does not negate mandatory fee shifting once statutory conditions are met

While reiterating the cooperative spirit endorsed in Salcetti v. City of Keene, the Court held that policy encouragement cannot override the statutory command of RSA 91-A:8, I. Once the Court found both (a) necessity and (b) “knew or should have known,” a fee award was not discretionary.

C. Impact

This decision is likely to shape RSA chapter 91-A litigation and public-records administration in at least four ways:

• Anti-blanket-denial principle strengthened: Even when an exemption’s contours are “unsettled,” an agency risks mandatory fees if it issues a categorical denial instead of disclosing (or segregating) obviously non-exempt material.
• “Publicly available elsewhere” is not a safe harbor for withholding: The Court’s use of RSA 91-A:1-a, III confirms that information “obtained” and used by an agency becomes a “governmental record,” and its public availability does not itself create an exemption.
• Sharper fee exposure under RSA 91-A:8, I: Agencies cannot rely on “good faith” or collaborative posture to avoid fees where they should have known some responsive records were plainly disclosable.
• Procedural guidance for post-disclosure fee litigation: The Court signaled that a motion to reopen to seek fees/costs can be appropriate after late disclosure, particularly where the requester could not “meaningfully raise” the fee issue until records were produced.

4. Complex Concepts Simplified

• “Murray exemptions”: Judge-made adoption (for guidance) of FOIA’s law-enforcement withholding categories—used to decide whether investigatory records may be withheld when disclosure would cause specific harms (like interfering with a prosecution or impairing a fair trial).
• Murray (A) vs. Murray (B): (A) focuses on interference with enforcement proceedings; (B) focuses on the accused’s fair-trial rights. Hanover relied on both but could not plausibly connect them to universally applicable, publicly available documents included in the reports.
• “Governmental record” (RSA 91-A:1-a, III): Not limited to what government creates; it includes information an agency “obtained” in performing its duties. That is why materials downloaded or collected by police for an arrest report can be subject to disclosure.
• “Knew or should have known” (RSA 91-A:8, I): A fee-shifting trigger based on objective reasonableness. The Court held Hanover should have known a total denial was unlawful once plainly non-exempt material was included in what it withheld.
• Costs vs. attorney’s fees: Costs may be awarded upon a “necessary lawsuit” finding; attorney’s fees require the additional “knew or should have known” finding. The opinion flags this distinction via ATV Watch v. N.H. Dep't of Resources & Econ. Dev..

5. Conclusion

Town of Hanover v. Valley News reinforces a practical, enforcement-oriented rule in New Hampshire Right-to-Know law: a public body cannot use arguable or unsettled law-enforcement exemptions to justify a blanket denial when at least some responsive information is plainly non-exempt—especially where the agency has “obtained” public materials and incorporated them into its files. When a lawsuit is necessary to obtain access and the agency knew or should have known its categorical withholding violated RSA chapter 91-A, RSA 91-A:8, I makes fees and costs mandatory.