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- courts/supreme

- court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- southern judicial district

No. 2021

- 0253

LAURA COLQUHOUN

v.

CITY OF NASHUA

Argued : January 27, 2022

Opinion Issued: October 2 6

, 2022

Lehmann Major List, PLLC

, of Concord ( Richard J. Lehmann on the brief

and orally), for the plaintiff.

Office of Corporation Counsel

, of Nashua ( Nicole M. Clay

, Steven A.

Bolton

, and Celia K. Leonard on the memorandum of law, and Nicole M. Clay

orally), for the defendant.

M AC DONALD, C.J. The plaintiff, Laura Colquhoun, filed a complaint

against the defendant, City of Nashua, after the City denied her Right

- to

- Know

Law request for all email communications between two City employees during a

specific two

- month period. See RSA ch. 91

- A (2013 & Supp. 2021). She argues

that the Trial Court ( Temple

, J.) erred when, after finding that the City had

violated the Right

- to

- Know Law, it denied her request for attorney’s fees. We

reverse and remand.2 I. Background

The following facts were found by the trial court or are otherwise

undisputed. On March 11, 2021, the plaintiff submitted a Right

- to

- Know Law

request seeking acces s to “all email communications between Ms. Kleiner [the

City’s Administrative Services Director] and Mr. Richard Vincent [the City’s

Chief of Assessing] for the period of January 1, 2021 to March 1, 2021.” On

March 18, 2021, the City denied the request, s tating:

This request for “all email” is overbroad and not reasonably

described under RSA 91

- A:4, IV. Therefore, this request is denied.

Under RSA 33

- A XXVII [ sic ] transitory correspondence is required

to be retained only as needed for reference. The stat ute does not

dictate the manner in which it shall be maintained. As such, each

individual sender or recipient of transitory correspondence is free

to retain, in whatever manner they see fit, any correspondence

they need for as long or as short a period as they require for

reference. With this in mind, any request for just “emails” does not

describe governmental records in a manner that allows them to be

reasonably identified or searched for.

Further, RSA 33

- A, does not mandate a particular method or

manner for retention of any correspondence, but rather a schedule

for disposition and retention. With this in mind, even under the

assumption that a particular email is subsumed within the

definition of “correspondence,” such an email is not required to be

maint ained in any specific manner or file location, regardless of its

individual retention timeline. Therefore, even under the

assumption that an email was retained under RSA 33

- A:3

- a, XXV

through XXVII, the bare description of “emails” fails to constitute a

re asonable description of a governmental record.

The plaintiff then filed this lawsuit on March 25, 2021.

The City filed an answer dated March 31, 2021. In its answer, the City

asserted that a search of the email folders located on the computers of both

named individuals was “likely to produce hundreds of pages of email

communication between the two of them, the vast majority of them being

duplicated at least once.” The City further explained that: (1) Vincent had

begun employment with the City on approx imately January 1, 2021; (2) Kleiner

was his immediate supervisor; and (3) the Assessing Department “was in the

midst of several projects which would have caused much communication

between the two.” Appended to the City’s answer was a new letter from the

City to the plaintiff dated March 31, 2021, which addressed her original March

11, 2021 request. In this letter, the City reported that it had “searched its3

readily available files and found approximately 547 email messages, equivalent

to roughly 937 prin ted pages, sent by and between Kim Kleiner and Rick

Vincent during the period of January 1, 2021, to March 1, 2021,” and that

each page “will require individual review for redaction or exemption in order to

protect private and confidential information.” C iting the need for this detailed

review and other pending Right

- to

- Know requests and departmental

obligations, the City advised that it would provide a response or update to the

plaintiff’s original request by April 27, 2021.

The trial court held a heari ng on the complaint on April 5, 2021. The

arguments advanced by the parties are summarized in the trial court’s order.

The plaintiff argued that her “request was sufficiently described to allow the

City to locate the requested documents.” The City disag reed, asserting that

“emails that may be responsive to the request could be found in any of the

approximately 29,000 files related to individual parcels assessed by the

Department.” The City also argued “as a general matter, that Right

- to

- Know

requests fo r ‘any and all’ documents are overbroad.”

The trial court first addressed whether the plaintiff’s request “reasonably

described” the governmental records sought. See RSA 91

- A:4, IV (Supp. 2021).

RSA 91

- A:4, IV(a) provides:

Each public body or agency shall, upon request for any governmental record reasonably described, make available for

inspection and copying any such governmental record within its

files when such records are immediately available for such release.

The tri al court found that we have “never defined the term ‘reasonably

described’ as used in RSA 91

- A:4, IV.” Accordingly, the court “look[ed] to other

jurisdictions construing similar statutes for guidance, including federal

interpretations of the federal Freed om of Information Act.” See, e.g.

, Censabella v. Hillsborough Cnty. Attorney

, 171 N.H. 424, 426 (2018).

Consistent with our case law, the trial court stated that it would construe the

term in a manner that would provide the greatest information pursuant to both

statutory and constitutional objectives. See id

.

After reviewing federal case law that interpreted the Freedom of

Information Act (FOIA), the court

, relying upon American Oversight v. U.S.

Environmental Protection Agency

, observed as a preliminary matter that

“whether a request is reasonably described is ‘highly context

- specific.’” Am.

Oversight v. U.S. Envtl. Prot. Agency

, 386 F. Supp. 3d 1, 15 (D.D.C. 2019).

The court ruled that a Right

- to

- Know request must not only be specific enough

for the public body to identify the actual records that are sought, but also it

must not require an unreasonably burdensome search. In so ruling, the court

again relied upon federal case law interpreting FOIA.4

The trial court then addressed the City’s argument that the plaintiff’s

request was not reasonably described because it asked for all email

communications. The court noted that the City, in advancing this argument,

had relied upon an order issued by the same trial court in January 2021 in a

separate case. See Ortolano v. City of Nashua

, No. 2020

- CV

- 00133, at 4 n.2

(N.H. Super. Ct., Hills Cnty

. - S. Dist. Jan. 12, 2021) ( Temple

, J.). The trial

court found Ortolano inapposite, however, observing that, in Ortolano

, the

Right

- to

- Know request s ought “all communications” between the Assessing

Department and KRT Appraisal that “relate to” a certain topic, and did not

identify a specific time frame. In contrast, the trial court found that, in the

case now before us, the plaintiff had limited both the time frame and the scope

of her request, seeking a specific type of communication (emails) between two

identified persons (Kleiner and Vincent) over a finite time frame (January 1 to

March 1, 2021).

The trial court rejected the City’s argument that th e plaintiff’s request

was “not reasonably described because the request would be extremely

burdensome and therefore the request should be deemed overbroad,” finding

that “it seeks a clearly delineated group of documents. The City even states

that the burd en comes not from the request itself but from its method of

organizing its records.”

The trial court also rejected the City’s assertion that, because “it is

unlikely that ‘all email communications’ between these two individuals would

be captured since i t is likely that many such communications would have been

removed from the email program,” the request was overbroad. The trial court

found that “the mere possibility that the City may not locate and produce all

responsive documents does not render the re quest overbroad.”

The court ordered the parties “to meet and confer within fourteen days

and engage in a good faith effort to narrow and focus requests for the benefit of

both the City and the requester.” (Citations and quotations omitted.) The

court co ncluded by ordering the City “to conduct a reasonable search for

responsive records in accordance with its burden under the Right

- to

- Know

law.”

The trial court denied the plaintiff’s request for attorney’s fees, explaining

that it could not find that th e City knew or should have known that its conduct

violated the Right

- to

- Know Law. The plaintiff then filed this appeal but did not

provide a transcript of the April 5, 2021 hearing. We observe that the case was

submitted to this court on January 27, 2022

, at the conclusion of oral

argument. On March 8, 2022, the plaintiff submitted a letter to the court that

addressed statements made by counsel for the City at oral argument. Attached

to the letter were transcripts of two hearings held in the superior co urt. In

response, the City filed a motion to strike and a motion to clarify. No leave5

having been granted, we decline to consider these post

- argument submissions.

See Sup. Ct. R. 16(7).

II. Analysis

The sole issue before us is whether the trial court erred by denying the

plaintiff’s request for attorney’s fees. RSA 91

- A:8, I (2013) provides:

If any public body or public agency or officer, employee, or

other official thereof, violates any provisions of this chapter, such

public body or public agency shall be liable for reasonable

attorney’s fees and costs incurred in a lawsuit under this chapter,

provided that the court finds that such lawsuit was necessary in

order to enforce compliance with the prov isions of this chapter or

to address a purposeful violation of this chapter. Fees shall not be

awarded unless the court finds that the public body, public

agency, or person knew or should have known that the conduct

engaged in was in violation of this cha pter or if the parties, by

agreement, provide that no such fees shall be paid.

This statute provides that fees shall be awarded if the trial court finds that the

lawsuit was necessary to make the requested information available and that

the public body kn ew or should have known that its conduct violated the

statute. ATV Watch v. N.H. Dep’t of Trans.

, 161 N.H. 746, 764 (2011); see RSA

91

- A:8, I.

The trial court explained that it could not find that the City knew that it

was violating the Right

- to

- Know Law when it denied the plaintiff’s request

because “the supreme court has never defined the limits of a reasonably

described request.” Therefore, the trial court ruled, it was not unreasonable for

the City to rely on federal case law and a recent superior court order to

conclude that the plaintiff’s request was unreasonably burdensome and

therefore not “reasonably described.” Indeed, citing federal case law, the trial

court ruled that the Right

- to

- Know Law did not obligate a public body to

comply with req uests that required either unreasonably burdensome searches

or the location and review of “a vast quantity of material.” See Am. Oversight

, 386 F. Supp. 3d at 15.

We address at the outset the City’s argument that the plaintiff’s failure to

provide us with a transcript of the hearing is fatal to her appellate challenge.

We disagree. B ecause the plaintiff has not provided a transcript, however, we

will assume that the evidence presented to the trial court supports its findings,

see Bean v. Red Oak Prop

. Mgmt.

, 151 N.H. 248, 250 (2004), and limit our

review to whether the court’s decision is consonant with applicable law

, see

Buatti v. Prentice

, 162 N.H. 228, 229 (2011).6

Although it is true that our case law has not specifically defined

“reasonably described,” we need not resolve that issue today to determine

whether the City should have known that it was violating the Right

- to

- Know

Law when it denied the plaintiff’s reque st.

The City asserts that, given the absence of a specific definition in the

statute or in our case law, it was reasonable to rely on case law from other

jurisdictions and on an earlier ruling by the same trial court in a different case.

The City conten ds that “[b]oth the trial court and the United States District

Court for the District of Columbia place a negative connotation on the word

all .” Accordingly, it argues, because the plaintiff used the term “all” in her

request for emails exchanged between t he two individuals during the two

month period, the request was “simply too broad.” However, the cited cases do

not support such an indictment of the use of the word “all” and, having

reviewed them, we disagree that the City’s reliance was reasonable.

In Freedom Watch, Inc. v. Dep artmen t of State

, 925 F. Supp. 2d 55

(D.D.C. 2013), Freedom Watch sent FOIA requests to several federal agencies

seeking “information about waivers the Department of State may have granted

to citizens, corporations, or other coun tries to trade with Iran despite very

tough sanctions against that country to prevent its development of nuclear

missiles.” The request identified 63 categories and sought:

all correspondence, memoranda, documents, reports

, records, statements, audits, l ists of names, applications, diskettes,

letters, expense logs and receipts, calendar or diary logs, facsimile

logs, telephone records call sheets, tape recordings, video/movie

recordings, notes, examinations, opinions, folders, files, books,

manuals, pamph lets, forms, drawings, charts, photographs,

electronic mail, and other documents and things that refer or

relate to [the 63 categories].

Freedom Watch

, 925 F. Supp. 2d at 57.

The federal court granted the motions to dismiss filed by the several

federal agency defendants after finding that the “requests failed to identify the

documents sought with any modicum of specificity and were thus fatally

overbroad and burdensome.” Id

. a t 61.

The City also cites Dale v. Internal Revenue Service

, 238 F. Supp. 2d 99

(D.D.C. 2002), to support its denial of the plaintiff’s request. In Dale

, the

requester sought access to “[a]ny and all documents, including but not limited

to files, that refer or relate in any way to Billy Ray Dale.” Dale

, 238 F. Supp. 2d

at 101. Dale stated that his request included “ all Internal Revenue Service

offices, departments, detachments, bureaus, operating locations, field offices,

agencies, divisions, director ates, center headquarters, and/or other Internal7

Revenue Service organizations and entities.” Id

. The IRS did not deny the

request but, rather, requested additional information:

A request for “all records pertaining to you” is too broad to meet

the FOIA requirement to adequately describe the records sought.

Please provide some additional guidance on what information you

are seeking, what Internal Revenue Service function might hav e

documents responsive to your request, what types of issues are

involved, what year or time frame might be appropriate to help us

focus the search.

Id

.

Dale did not respond to this request and eight months later filed suit

against the IRS. Id

. at 102. In a lengthy order, the trial court dismissed the

suit, finding that Dale’s undefined request “amounted to an all

- encompassing

fishing expedition of files at IRS offices across the country, at taxpayer

expense.” Id

. at 105. “[H]is FOIA request does not specify what records he

seeks, for what years, and located at which office of the IRS. Absent some

description of the actions the agency may have taken against him

(investigation, audit, revocation of tax exempt status, etc.), the particular

records soug ht, and any relevant dates and locations, agency employees would

not know where to begin searching.” Id

. at 104.

Neither Freedom Watch nor Dale supports the position advanced by the

City on appeal. As the City concedes, “this Court need not define ever y term

within RSA chapter 91

- A in order for public agencies to comply with it.” W e

have often stated that the Right

- to

- Know Law “helps further our State

Constitutional requirement that the public’s right of access to governmental

proceedings and records s hall not be unreasonably restricted.” Goode v. N.H.

Office of Legislative Budget Ass’t

, 148 N.H. 551, 553 (2002); see N.H. CONST.,

pt. I, art. 8

. And, we have consistently broadly construed provisions favoring

disclosure a nd interpreted exemptions restrictively. N.H. Right to Life v. Dir.,

N.H. Charitable Trusts Unit

, 169 N.H. 95, 103 (2016).

In Freedom Watch

, the “requests failed to identify the documents sought

with any modicum of specificity and were thus fatally ov erbroad and

burdensome.” Freedom Watch

, 925 F. Supp. 2d at 61. Similarly, in Dale

, the

court concluded that the request was so undefined that “agency employees

would not know where to begin searching.” Dale

, 238 F. Supp. 2d at 104.

Here, in contrast, t he trial court found that the plaintiff had limited both the

time frame and the scope of her request. Indeed, the court found that her

request sought “a clearly delineated group of documents.” Thus, neither

Freedom Watch nor Dale supports the City’s blan ket refusal to provide any

documents in response to the plaintiff’s request.8

Nor does the earlier order issued by the trial court in Ortolano cited by

the City support the City’s position. In that case, the trial court stated:

Indeed, courts tend to frown on requests for “all communications”

because they do “not describe the records sought sufficiently to

allow a professional employee familiar with the area in question to

locate responsive records.”

(Quoting Freedom Watch

, 925 F. Supp. 2d at 62.) I n Ortolano

, the request did

not identify a specific time frame nor limit the specific individuals between

whom the requested communications took place, while here the request was

limited both in time and to emails between two identified persons.

Citing federal case law, the City asserts in its memorandum of law that

“[a] reasonably described request would be sufficient if it enabled a professional

employee of the agency who was familiar with the subject area of the request to

locate the record with a rea sonable amount of effort.” (Quotation omitted.) For

the purposes of deciding this appeal, we will assume that this standard is

applicable to requests made under the Right

- to

- Know Law. Cf

. Censebella

, 171

N.H. at 428 (“Notably, the FOIA derives from a legislative effort to promote

government transparency, not from a constitutionally mandated public right to

open government and accountability.”)

.

Here, the record reveals that six days after the plaintiff filed her lawsuit,

the City reported that it had “searched its readily available files and found

approximately 547 email messages, equivalent to roughly 937 printed pages,

sent by and between Kim Kleiner and Rick Vincent during the period of

January 1, 2021, to March 1, 2021.” (Emphasis added.) That t he City was

able to so quickly find 547 responsive documents by searching its readily

available files after the plaintiff filed suit belies its claim that the plaintiff’s

description failed to describe the records sufficiently to allow a professional

emplo yee familiar with the area in question to locate responsive records.

As the City also acknowledges in its memorandum of law, whether a

request reasonably describes the records sought is highly context

- specific.

Here, in its initial response to the plain tiff, the City relied upon provisions of

RSA chapter 33

- A to allege that each sender or recipient of transitory

correspondence is free to retain correspondence as they see fit, and that emails

are not required to be maintained in any specific manner or fil e location. This

general recitation of the law governing disposition of municipal records fails to

take into account the actual facts of this case

— whatever the requirements of

RSA chapter 33

- A may be, the City’s own actions demonstrate that the

plaintif f’s description was sufficient to permit the City to quickly find 547

responsive documents in readily available files once the plaintiff filed suit.9

Thus, viewed in the context of the facts of this case, we conclude that the

plaintiff’s description reas onably described the records sought, and the City

should have known that this was so. See Am. Oversight

, 386 F. Supp. 3d at 10

(public agency failed to explain why it “could not reasonably discern the

records sought and process the request when [the plain tiff] sought all email

records for a particular account across a two

- week span”); see also Muckrock,

LLC v. Central Intelligence Agency

, 300 F. Supp. 3d 108, 136 (D.D.C. 2018)

(“FOIA does not authorize the [public agency] to deny a FOIA email request

categ orically, simply and solely because the request does not reference the

sender, recipient, subject, and time frame,” noting that Congress intended the

“reasonably described” language to be interpreted liberally, and that this

standard “should not be used to obstruct public access to agency records”

(quotation omitted)).

Next, the City argues that even if it had concluded that the plaintiff’s

request reasonably described the records sought, the City had reasonable

grounds to deny the request “as the require d search would be unreasonably

burdensome.” We will assume, without deciding, that the City’s denial of the

request, which alleged that the request was overbroad and not reasonably

described, encompasses the City’s contention that the required search woul d

be unreasonably burdensome. The City argues that it reasonably denied the

request on those grounds because responsive emails might have been stored

“in a multitude of other locations.” In its answer to the plaintiff’s complaint,

the City alleged that o btaining all email communications between Kleiner and

Vincent “would require a hand search of thousands of files containing tens of

thousands of documents.”

The City’s argument is based upon its assumption that if it would be

unduly burdensome for the Ci ty to search for and locate all of the requested

documents, then it was entitled to refuse to undertake any search by simply

denying the request as unduly burdensome. Such a categorical denial is

contrary to our case law. As we explained in ATV Watch v. New Hampshire

Department of Transportation

, an agency is not required to undertake an

exhaustive search for requested documents. Rather, the adequacy of an agency’s search for documents is judged by a standard of reasonableness. ATV

Watch

, 161 N.H. at 75 3. We conclude that the City should have known, in

light of our decision in ATV Watch

, that it was required to undertake a

reasonable search. Thus, by denying the plaintiff’s request in its entirety as

unduly burdensome, the City should have known that i t was asserting that any

search would be unreasonable because any search would be unduly

burdensome. The facts of this case and our earlier cases demonstrate that the

City should have known that such an assertion was not justified

. See, e.g.

, Green v. Sc h. Admin. Unit #55

, 168 N.H. 796, 802 (2016) (purpose of Right

- to

Know Law is to improve public access to governmental records and provide

“utmost information” to public about what its “government is up to”).10

As previously noted, the City acknowledges in its memorandum of law

that whether a Right

- to

- Know request “reasonably describes” the records

sought is highly context

- specific. Yet it failed to consider, before issuing its

original denial, that the plaintiff’s limited request for email exchanged betwe en

two named individuals over a two

- month period easily distinguished her

request from “all

- encompassing requests” that have been found in other

contexts to be too broad. While it alleged in its denial that RSA chapter 33

- A

did not require that the emails be kept in any specific manner or file location,

the facts demonstrate that at least 547 responsive emails were located in

readily available files. Its assertion that fulfilling the plaintiff’s request may

have required a hand search of thousands of file s does not obviate its

responsibility to conduct a reasonable search

— as the legislature has

observed: “Openness in the conduct of public business is essential to a

democratic society.” RSA 91

- A:1 (2013).

Openness requires the ability of the public t o obtain the “greatest

possible access to the actions, discussions and records of all public bodies.”

RSA 91

- A:1. Thus, even assuming the veracity of the City’s assertion that an

exhaustive search would have been unreasonably burdensome, it did not

justi fy the City’s blanket denial of the request. As the facts demonstrate, had

the City undertaken a reasonable search, even one limited to “readily available

files,” it would have located 547 responsive documents, as it did within six

days after the plaintif f filed her suit.

Because the record demonstrates that the City knew or should have

known that its blanket denial violated the Right

- to

- Know Law, we conclude

that the trial court erred when it denied the plaintiff’s request for attorney’s

fees and costs

. We have long recognized that the ability to obtain an award of

attorney’s fees in a Right

- to

- Know Law case “is critical to securing the rights

guaranteed by the statute.” Bradbury v. Shaw

, 116 N.H. 388, 391 (1976).

Although subsequent to our decision in Bradbury

, the legislature revisited the

fee provision and made clear that an award can only be ordered when a public

body “knew or should have known” that its conduct “ was in violation of this

chapter,” the principles underlying the availability of the award have not

changed. To place a monetary value on the interests protected by the law will

frequently be impossible. Id

. “Without this provision, the statute would often

be a dead letter, for the cost of enforcing compliance would generally exceed

the value of the benefit gained.” Id .; see also Heath Hooper & Charles N. David,

A Tiger With No Teeth: The Case For Fee Shifting in State Public Records Law

, 79 Mo. L. Rev. 949 (2014). We therefore reverse and remand for an award to

the plaintiff of reasonable attorney’s fees and costs.

We note that the legislature has recognized that some requests for

documents may require additional time to address. See, e.g.

, RSA 91

- A:4, IV(b)

(Supp. 2021) (if public body is unable to make governmental record available

for immediate inspection and copying, it “shall, within 5 business days of a11

request” make it available, deny the request, or provide a written statem ent of

time necessary to determine whether the request shall be granted or denied

and reasons for the delay). Whether limitations should be imposed upon the

scope of permissible Right

- to

- Know requests, or whether further

accommodations should be made in t he Right

- to

- Know Law to address

potentially “unreasonably burdensome” requests, is an issue best addressed in

the first instance by the legislature, with due consideration for the mandate of

Part I, Article 8 of the New Hampshire Constitution.

Reversed and remanded

.

HICKS and DONOVAN, JJ., concurred; BASSETT and HANTZ MARCONI,

JJ

., dissented.

BASSETT and HANTZ MARCONI, JJ., dissenting. We respectfully

disagree with our colleagues that an award of attorney ’ s fees is compelled in

this case . The Rig ht

- to

- Know Law is clear. Attorney’s fees “ shall not be

awarded unless the court finds that the public body . . . knew or should have

known that the conduct engaged in was in violation of this chapter.” RSA 91

- A:8, I (2013) (emphasis added). Because we c annot conclude that the trial

court erred in finding that the City did not know

— nor should it have known

— that its conduct violated the Right

- to

- Know Law, we would affirm the

considered decision of the trial court.

We agree with the majority that, in the absence of a transcript, we must

assume that the evidence was sufficient to support the result reached by the

trial court and that our review is limited to errors of law. Bean v. Red Oak

Prop. Mgmt. , 151 N.H. 248, 250 (2004). We part company, however , when the

majority concludes that the trial court erred when it ruled that the evidence did

not support a finding that the City knew or should have known that its

response violated the Right

- to

- Know Law.

The Right

- to

- Know Law requires that a public body shall, upon request

for a “reasonably described” governmental record, make such record available

for inspection and copying when the record is immediately available for such

release. RSA 91

- A:4, IV(a) (Supp. 2021). The request must reasonably

describe th e record sought before the public body is required to conduct a

search for it. See id . As the trial court accurately observed, and as the

majority acknowledges, we have not yet addressed the parameters of a

“reasonably described” request. This is of particular significance in this case.

Here, the City received a request for “all email communications” between

two city employees over a 60

- day period without reference to subject matter or

content. The City denied the request, stating that it was “overb road and not

reasonably described under RSA 91

- A:4, IV.” The City also explained, citing

RSA 33

- A :3

- a, XXVII, that “transitory correspondence is

. . . required to be12

retained only as needed for reference” and “ [ w ] ith this in mind, any request for

just ‘em ails’ does not describe governmental records in a manner that allows

them to be reasonably identified or searched for.” The City provided further

explanation:

RSA 33

- A does not mandate a particular method or manner

for retention of any correspondence, bu t rather a schedule

for disposition and retention. . . . [E] ven under the

assumption that a particular email is subsumed within the

definition of “correspondence,” such an email is not

required to be maintained in any specific manner or file

location

. . . . Therefore, even under the assumption that an

email was retained under RSA 33

- A:3

- a, XXV through

XXVII, the bare description of “emails” fails to constitute a

reasonable description of a governmental record.

Thus, the C ity not only de nied the request as overbroad and not reasonably

described, but it also explained its reasoning

.

At the hearing on the plaintiff’s complaint , the City explained the basis

for its denial: (1) emails that might be “responsive to the request could be

found in any of the appr oximately 29,000 files related to the individual parcels

assessed by the Department”; and (2) several state and federal courts had

construed similar laws and determined that requests for “any and all”

documents are overbroad.

The trial court ruled that t he City’s duty to make governmental records

available for inspection required first, as a threshold matter, that the request

for inspection be “reasonably described.” See RSA 91

- A:4, IV(a). Although the

court ultimately determined that the plaintiff’s re quest had “reasonably

described” the records sought, it ruled that the City did not know, nor should it

have known, that the plaintiff’s request was “reasonably described” at the time

that the City received the request. In so ruling, the court cited the l egislature’s

unsuccessful efforts in its 2020 session to define the term “reasonably

described.” The court reasoned that, since neither the legislature nor this

court had ever defined the term, it was reasonable for the City to look to other

courts for gu idance when determining whether the plaintiff’s request

“reasonably described” the governmental records sought. Noting that the

“reasonably described” determination is highly context

- specific

, the court

observed that other courts had found a request for “ all ” emails that fail ed to

identify a subject matter to be overbroad.

The trial court concluded that, given the unsettled state of the law, “it

has not been shown that the City knew or should have known that the13

plaintiff’s request was reasonably describ ed.” Ac cordingly, the court found that

the plaintiff was not entitled to an award of attorney’s fees and costs. We

agree with the trial court.

The majority’s conclusion to the contrary rests in large part on its effort

to distinguish several cases fr om other jurisdictions relied upon by the City

when it concluded that the plaintiff’s request was not “reasonably described.”

Even assuming that those cases can be distinguish ed from this case in certain

respects, it does not necessarily follow that the C ity knew or should have

known that the request in this case was reasonably described. The cases that

the City relied upon merely provide guideposts as to the acceptable scope and

time frame of a “reasonably described” request.

For example, in Freedom Wa tch, Inc. v. Department of State

, 925 F.

Supp. 2d 55, 61 (D.D.C. 2013), and Dale v. Internal Revenue Service

, 238 F.

Supp. 2d 99, 104 (D.D.C. 2002), the D.C. District Court concluded that the

requests at issue were too broad in scope, in part, because they requested “all”

documents of certain types. See Freedom Watch

, 925 F. Supp. 2d at 62

(concluding that request for “all communications” between the Secretary of

State and Secretary of the Treasury lacked necessary specificity because it

lacked subject mat ter and temporal limitations); Dale

, 238 F. Supp. 2d at 104

(“[R]equests for all documents concerning a requester are too broad.”); see also

Ortolano v. City of Nashua

, No. 2020

- CV

- 00133, at 4 n.2 (N.H. Super. Ct., Hills

Cnty.

- S. Dist. Jan. 12, 2021) (observing that courts “tend to frown on requests

for ‘all communications’” because they are too broad). Freedom Watch and

Dale provide examples of requests that fall on the “too broad” end of the

spectrum. That the scope of the request in this case is arguably less broad

than the requests in those cases does not support the majority’s conclusion

that the City knew or should have known that this request satisfied the

“reasonably described” standard.

Additionally, as to time frame, the trial court compared a case in which a

request for emails sent and received by nine school board members over a 30

- day period was deemed sufficiently described, see Easton Areas School Dist. v

. Baxter

, 35 A.3d 1259, 1260

, 1265 (Pa. Commw. Ct. 2012), with a case in which

a request was determined to be insufficiently specific, in part, because it

sought all emails of a public official for a one

- year period, see Penn. Dept. of

Edu. v. Pittsburgh Post

- Gaz.

, 119 A.3d 1121, 112 6 (Pa. Commw. Ct. 2015).

Although the 60

- day time frame of the request at issue here certainly falls

closer to the “reasonably described” end of the spectrum, reasonable minds

could differ as to where the line should be drawn

.

In our view, because the “reasonably described” inquiry is, as the trial

court pointed out, “highly context

- specific,” the cases that the City relied upon

merely provide examples of requests that fall within or outside of acceptable

bounds. Those cases neither demonstrate a conse nsus nor dictate a specific14

result under the facts of this case. Accordingly, given the highly context

specific nature of the inquiry, the lack of guidance from this court or the

legislature, and the state of the case law in other jurisdictions, we cannot

conclude that the City knew or should have known that the plaintiff’s request

was “reasonably described.” See Ettinger v. Town of Madison Planning Bd.

, 162 N.H. 785, 792 (2011) (concluding that defendant should not have known

that its conduct was unlawfu l in the absence of guidance from this court on a

narrow legal issue); Goode v. N.H. Legislative Budget Assistant

, 145 N.H. 451,

455 (2000) (concluding that defendant neither knew nor should have known it

violated RSA chapter 91

- A based, in part, on “the l aw in this area”).

In reaching its conclusion, the majority also relies upon the fact that “six

days after the plaintiff filed her lawsuit, the City reported that it had ‘searched

its readily available files and found approximately 547 email messages,

eq uivalent to 937 printed pages, sent by and between [the two individuals]

during [the requested period].’” Its reliance is misplaced. Hindsight is not the

proper perspective to employ when determining whether the City is liable for

attorney’s fees. That the City subsequently identified 547 documents that were potentially responsive to the plaintiff’s request does not support a finding that

the record request was “reasonably described.” Neither the City nor the trial

court ever determined that the email m essages were responsive

— i.e.

, governmental records subject to RSA chapter 91

- A. Rather, after the hearing,

the trial court ordered the City to “conduct a reasonable search for responsive

records in accordance with its burden under the Right

- to

- Know law, ” and

ordered “the parties to meet and confer within fourteen days and engage in a good faith effort to narrow and focus requests for the benefit of both the [City]

and the requester.” (Quotation omitted.)

Finally, we believe that the majority errs wh en it minimizes the

significance of the plaintiff’s failure to provide us with a transcript of the

hearing. As the majority acknowledges, without the transcript, we are obliged

to assume the evidence presented to the trial court supports its findings.

Bean , 151 N.H. at 250. Here, although the trial court ultimately determined

that the precedent and rationale relied upon by the City did not support a

finding that the plaintiff’s request was not reasonably described, the court did

not find that the City knew or should have known that the plaintiff’s request

for “all email communications” between two City employees, without more, was

reasonably described. Without a transcript of the proceedings, and therefore,

without knowledge of any proffers made by the City during the hearing, there is

no logical way to reject the trial court’s reasoning and conclusions.

It is clear that the trial court was called upon to decide previously

unresolved legal issues related to what constitutes a “reasonably described”

re quest. The lack of controlling precedent on that question dictates the answer

to the question of whether the City knew or should have known that its denial

of the plaintiff’s request as not “reasonably described” violated the Right

- to

-15

Know Law. In order for the trial court to determine that the City “should have

known” that the plaintiff’s request was reasonably described, the law on that

issue had to be clear. It is not.

In light of the case law from other jurisdictions relied upon by the City

for th e proposition that an agency need not honor a request that seeks “all” of a

category of information, or “all” information “relating” to a certain subject, as

well as the absence of a decision by this court or a statutory definition

establishing the limits of a reasonably described request, we find no legal error

in the trial court’s ruling

. That the trial court ultimately decided the

substantive “reasonably described” issue in favor of the plaintiff does not mean

that

, at the time of its initial response, the City lacked a reasonable basis for

believing that the court would rule otherwise

. Given the lack of a transcript

and the unsettled state of the law

, we would affirm the trial court’s denial of

the plaintiff’s request for attorney’s fees.