Background
In October 2023, two Dartmouth College students were arrested in connection with an incident in Hanover, New Hampshire. Valley News, a regional newspaper, submitted a Right-to-Know request under RSA chapter 91-A seeking the students’ arrest records. After months of email exchanges, Hanover refused to release any records, citing the pending criminal prosecution and invoking the so-called Murray exemptions — judicially adopted standards drawn from the federal Freedom of Information Act that permit withholding law enforcement records where disclosure could reasonably interfere with enforcement proceedings (Murray (A)) or deprive a person of the right to a fair trial (Murray (B)).
Rather than deny the request outright, Hanover filed a declaratory judgment action asking the court to determine whether disclosure was required. Valley News counterclaimed seeking an order to release the records. The trial court ordered disclosure and initially awarded Valley News attorney’s fees and costs. On reconsideration, however, the court reversed the fee award, concluding that Hanover had made a good-faith effort to navigate an unsettled area of law — specifically, that the scope of the Murray (B) exemption had never been fully examined by the New Hampshire Supreme Court.
After Hanover released the records on September 18, 2024, Valley News moved to reopen the case, arguing that the content of the records demonstrated Hanover knew or should have known its blanket withholding violated the Right-to-Know Law. The trial court denied that motion, and Valley News appealed.
The Court’s Holding
The New Hampshire Supreme Court reversed and remanded with instructions to award attorney’s fees and costs. The court held that, regardless of any genuine uncertainty surrounding the Murray (B) exemption, Hanover knew or should have known that at least some of the withheld materials were plainly subject to disclosure. The arrest reports prepared by Lieutenant Schibuola incorporated publicly available documents — including the Dartmouth president’s message to the campus community, generally applicable student conduct policies, and publicly posted student position statements — that could not plausibly satisfy either the Murray (A) or (B) exemption criteria. Hanover offered no credible basis for uncertainty about whether those materials had to be released.
The court rejected Hanover’s argument that unsettled law regarding the Murray (B) exemption entitled it to withhold all requested records in their entirety. Citing its earlier decision in Colquhoun v. City of Nashua, 175 N.H. 474 (2022), the court reaffirmed that a public body cannot use uncertainty about one exemption as a blanket justification for categorically refusing to produce any responsive records. A blanket denial that sweeps in obviously non-exempt material crosses the line from good-faith legal caution into conduct the agency knew or should have known was unlawful.
The court also rejected Hanover’s procedural timeliness challenges, concluding that Valley News’s motion to reopen was not subject to the 10-day reconsideration deadline under Superior Court Rule 12(e) because Valley News could not meaningfully have argued the content-based “knew or should have known” theory until it actually received the records on September 18, 2024. The court further accepted the trial court’s unchallenged finding that the legal proceedings were necessary to secure Valley News’s access to the records, satisfying the second statutory prerequisite to a fee award under RSA 91-A:8, I.
Key Takeaways
- Under RSA 91-A:8, I, attorney’s fees are mandatory when a court finds that litigation was necessary to enforce compliance with New Hampshire’s Right-to-Know Law and the public body knew or should have known its conduct was unlawful — good faith and legal uncertainty do not override the statute’s plain language.
- A public body cannot invoke uncertainty about the scope of an exemption to justify a categorical, blanket denial of a records request; it must release materials that are plainly not exempt, even while withholding or redacting those that plausibly qualify.
- Publicly available documents incorporated into a law enforcement report do not acquire exemption from disclosure merely because they were compiled by police — Hanover’s argument that such documents revealed investigative “areas of exploration” was rejected as unpersuasive on the facts.
- A motion to reopen is distinct from a motion for reconsideration and is not subject to the 10-day filing deadline under Superior Court Rule 12(e); the timeliness of such a motion turns on when the movant could first meaningfully raise the arguments at issue.
Why It Matters
This decision reinforces that New Hampshire’s Right-to-Know Law carries real financial teeth. Public bodies that reflexively issue blanket denials — even while citing genuinely unsettled legal theories — risk mandatory fee awards if any portion of the withheld material was clearly subject to disclosure. The ruling signals that government agencies must conduct a document-by-document analysis rather than using doctrinal uncertainty as a shield for wholesale non-disclosure.
For media organizations and members of the public pursuing records requests, the case establishes that waiting to challenge the adequacy of a denial until after records are actually produced can be procedurally proper, at least where the content of the records is essential to the fee argument. It also reaffirms, following Colquhoun, that courts will scrutinize categorical refusals carefully — and that a public body’s cooperative posture or good-faith litigation stance will not excuse conduct that crosses the statutory line.