Context-Driven Responsiveness Under RSA 91-A and Permissible Bad-Faith Findings to Support Remedies Without Naming Individual Officials

Introduction

In Laurie Ortolano v. City of Nashua & a. (N.H. Feb. 10, 2026) (Case No. 2024-0578), the New Hampshire Supreme Court affirmed a superior court order addressing multiple petitions brought under the Right-to-Know Law, RSA ch. 91-A. The plaintiff, Laurie Ortolano, sought disclosure of records relating to (1) the City of Nashua’s downtown barrier construction for outdoor dining during the coronavirus pandemic, and (2) the construction and financing of the Nashua Performing Arts Center (NPAC). The defendants were the City of Nashua and two related entities, 201 Main Street Real Estate Corporation and 201 Main Street Financing Corporation (the “201 Corporations”).

The litigation produced a mixed trial result: the superior court found multiple violations by the City and one by the 201 Corporations, but rejected other claimed violations. The plaintiff appealed, challenging (among other matters) consolidation, discovery rulings, and determinations about whether certain groups were subject to RSA 91-A. The City cross-appealed, disputing a “responsiveness” finding and objecting to the trial court’s bad-faith commentary about unnamed city officials.

Summary of the Opinion

The Supreme Court affirmed in all respects addressed. It held:

  • The superior court did not unsustainably exercise its discretion by consolidating the petitions because they shared common parties and common issues of law and fact under RSA 91-A.
  • The superior court did not err in limiting discovery (particularly given the plaintiff’s stated opposition to discovery and the special procedural posture of Right-to-Know cases).
  • The superior court acted within its discretion in denying depositions sought to obtain information not required under RSA 91-A.
  • The superior court’s finding that the Capital Campaign Committee (CCC) was not subject to RSA 91-A was supported by the record.
  • On cross-appeal, the trial court did not commit reversible error in concluding that an email from the chair of the Downtown Improvement Committee (DIC) was responsive to a request referencing a “Downtown Barrier Committee,” even though that committee was never formally established—because responsiveness was properly assessed in context.
  • The trial court’s discussion suggesting “a strong basis to believe” certain officials acted in bad faith did not violate due process or constitute an unsustainable exercise of discretion where it was relevant to statutory remedies against the City (costs and injunctive relief), even though civil penalties could not be assessed against unnamed individuals.

Analysis

Precedents Cited

The court relied on a series of decisions that collectively frame (1) the scope of appellate review, (2) deference to trial-court case management, and (3) the context-sensitive nature of Right-to-Know disputes.

Appellate gatekeeping and issue preservation

  • State v. Blackmer, 149 N.H. 47, 49 (2003): The court invoked Blackmer to limit review to issues properly preserved and developed. This served as the basis for declining to address several of the plaintiff’s remaining arguments.
  • Vogel v. Vogel, 137 N.H. 321, 322 (1993) and Sup. Ct. R. 25(8): These authorities supported the court’s decision not to discuss certain arguments that did not warrant additional treatment in an order-style disposition.

Consolidation and trial-court discretion

  • Barnard v. Elmer, 128 N.H. 386, 388 (1986): Cited for the proposition that consolidation is warranted where cases have “much common evidence” and the complaining party is not prejudiced by lack of notice. This case anchored the Supreme Court’s deference to the superior court’s consolidation decision.
  • Assoc. Home Util's, Inc. v. Town of Bedford, 120 N.H. 812, 815 (1980): Quoted for the broad discretion to consolidate, “limited only by the requirements of justice.” This helped the court frame consolidation as a case-management decision entitled to substantial deference.
  • 5 Gordon J. MacDonald, New Hampshire Practice: Wiebusch on New Hampshire Civil Practice and Procedure § 41.06, at 41-3 (4th ed. 2014): Used as a practical statement of consolidation standards—common issues of material fact/law and simplification of trial.

Discovery management in Right-to-Know cases

  • N.H. Ball Bearings v. Jackson, 158 N.H. 421, 429 (2009): Provided the “unsustainable exercise of discretion” standard for discovery management. The Supreme Court used this deferential lens to uphold limitations on discovery and the denial of depositions.
  • Super. Ct. Admin. Order 2013-08: The court cited this administrative order in noting that Right-to-Know cases are treated as exempt from ordinary civil discovery rules, supporting the superior court’s approach to limiting discovery absent court order.

Post-trial review of factual findings and “reasonableness” deference

  • O'Malley v. Little, 170 N.H. 272, 275 (2017): The court applied O’Malley for the rule that factual findings after a merits trial are upheld unless lacking evidentiary support or legally erroneous, and that appellate review asks whether a reasonable person could reach the same result on the evidence presented.

Right-to-Know request interpretation: context and responsiveness

  • Colquhoun v. City of Nashua, 175 N.H. 474, 482 (2022): The court relied on Colquhoun for the key proposition that whether a request “reasonably describes the records sought is highly context-specific.” This was central to rejecting the City’s argument that a request referencing a “Downtown Barrier Committee” could not reach DIC emails.

Remedies under RSA 91-A and discretion to enjoin future violations

  • ATV Watch v. N.H. Dep't of Resources & Econ. Dev., 155 N.H. 434, 438 (2007): Cited for the principle that trial courts retain discretion to enjoin future violations under RSA 91-A:8. This supported the relevance of bad-faith findings to remedial decisions, even if individual penalties were unavailable.

Defining “unsustainable exercise of discretion” and prejudice

  • RAL Automotive Group, Inc. v. Edwards, 151 N.H. 497, 499 (2004): Used to frame the standard: the challenged ruling must be “clearly untenable” or “clearly unreasonable” to the appellant’s prejudice. This supported affirmance of the trial court’s inclusion of bad-faith commentary as part of its remedial analysis.

Legal Reasoning

1) Consolidation: commonality and judicial economy

The Supreme Court treated consolidation as a classic discretionary call. Because the petitions involved the same plaintiff, a common defendant (the City), and overlapping factual circumstances involving NPAC and RSA 91-A compliance, the superior court could reasonably conclude that consolidation would streamline proof and conserve judicial resources. Under Barnard and Assoc. Home Util’s, that rationale satisfied “the requirements of justice,” and the record supported the superior court’s findings of common issues.

2) Discovery limitations and deposition denials: tailoring procedure to RSA 91-A disputes

The Supreme Court emphasized two points. First, the plaintiff opposed discovery, and the trial court’s order allowing discovery only by court order fit within its managerial authority. Second, the plaintiff conceded that the desired depositions sought information “not required under the Right-to-Know Law.” That concession mattered: RSA 91-A is a disclosure statute focused on access to existing governmental records, not a vehicle for broad fact development. Applying N.H. Ball Bearings and recognizing the procedural guidance in Super. Ct. Admin. Order 2013-08, the Supreme Court upheld the trial court’s narrow approach.

3) “Public body” status: CCC not shown to be subject to RSA 91-A

The plaintiff argued the CCC was a subcommittee of a public committee and therefore covered by the statutory definition of “[p]ublic body,” RSA 91-A:1-a, VI(d). The Supreme Court deferred to the trial court’s factfinding after hearing testimony that the CCC was assembled to coordinate private fundraising based on consultant advice and was not affiliated with the City nor a subcommittee of the PAC Steering Committee. Under O’Malley, this evidentiary basis foreclosed appellate reversal.

4) Responsiveness of records: requests read in real-world context

The City’s cross-appeal focused on nomenclature: the request sought records about a “Downtown Barrier Committee,” which was never formally established, whereas the withheld email was from the chair of the DIC. The Supreme Court, invoking Colquhoun v. City of Nashua, treated the question as context-specific. Because City officials had represented that a committee would be formed to make barrier decisions, and the request sought names, meeting postings, and authorizing authority for the group making those decisions, the superior court could reasonably interpret the request as aimed at the functional decision-making body regardless of title. On that view, an email from the chair of the committee actually engaged with barrier decisions about a meeting discussing barriers could be found responsive.

5) Bad faith: relevant to remedies even when individuals are not parties

A key practical holding is the court’s acceptance of the trial court’s ability to discuss bad faith by specific officials when deciding remedies against the governmental entity. The superior court concluded it could not impose civil penalties under RSA 91-A:8, IV on individuals not named as defendants (a due-process concern), yet found “a strong basis to believe” certain officials acted in bad faith and stated it would have seriously considered penalties had they been named.

The Supreme Court upheld this treatment because the “bad faith” discussion was not an unauthorized sanction against nonparties; it was tethered to statutory remedies that were available against the City—specifically, awards of reasonable costs under RSA 91-A:8, I and injunctive relief under RSA 91-A:8, V. Citing ATV Watch, the court reiterated that injunction decisions fall within trial-court discretion. Under RAL Automotive Group, Inc. v. Edwards, the City failed to show the commentary was “clearly untenable” or “clearly unreasonable” to its prejudice.

Impact

  • Functional, context-based reading of requests: The decision reinforces that agencies cannot avoid disclosure by pointing to minor naming discrepancies where context shows the requester is targeting the function (the body making the decisions) rather than a precise label. This is a meaningful operational lesson for records officers handling ambiguous or imperfectly titled requests.
  • Bad faith findings can matter even without individual-party penalties: Trial courts may consider conduct by officials when deciding entity-level remedies (costs and injunctions), even when due process prevents imposing civil penalties on unnamed individuals. This encourages careful compliance practices because “bad faith” behavior may still increase remedial exposure for the governmental entity.
  • Discovery remains constrained in RSA 91-A litigation: The affirmance, paired with reference to Super. Ct. Admin. Order 2013-08, signals that parties should expect targeted, court-controlled discovery rather than broad civil discovery—especially when requested discovery seeks information beyond what the statute requires to be produced.
  • Private fundraising groups and RSA 91-A coverage: The CCC ruling underscores that not every group adjacent to a public project is a “public body.” Coverage turns on structure, affiliation, and evidence of governmental status—issues likely to recur in public-private development and fundraising arrangements.

Complex Concepts Simplified

  • “Unsustainable exercise of discretion”: A highly deferential appellate standard. The question is not whether the appellate court would have decided differently, but whether the trial court’s decision was clearly unreasonable or untenable under the circumstances.
  • “Public body” (RSA 91-A:1-a, VI(d)): A covered governmental entity (including certain committees/subcommittees). Whether a particular group qualifies is a fact-driven inquiry into its relationship to government and decision-making role.
  • “Responsive” records: Records are responsive if they reasonably fall within the scope of what the requester asked for. This case highlights that scope may depend heavily on context—what was happening and what a reasonable reader would understand the request to be seeking.
  • “Bad faith” in RSA 91-A litigation: Conduct suggesting purposeful evasion or intentional noncompliance. Bad faith can influence remedies (like costs or an injunction) even if civil penalties against individuals require naming them as parties.
  • Due process concern with penalties on nonparties: Courts generally cannot impose punitive sanctions (like civil penalties) against individuals who were not named and given formal notice and an opportunity to defend in the case.
  • Injunction under RSA 91-A:8, V: A court order requiring future compliance—used to prevent repeated violations.

Conclusion

Ortolano primarily solidifies practical, procedure-and-remedy guidance in RSA 91-A cases: (1) trial courts enjoy broad discretion to consolidate related Right-to-Know petitions and to constrain discovery; (2) determining whether records are responsive is a context-sensitive inquiry, preventing agencies from relying on technical naming distinctions to avoid disclosure; and (3) while civil penalties cannot be imposed on unnamed individuals, a trial court may still evaluate and describe officials’ bad faith where that assessment informs permissible remedies against the governmental entity, including costs and injunctive relief.