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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 2019

- 0150

PAUL MARTIN

v.

CITY OF ROCHESTER

Argued: February 12, 2020 Opinion Issued: June 9 , 2020

Douglas, Leonard & Garvey

, P.C. , of Concord ( Jared Bedrick on the

brief ), and The MuniLaw Group , of Epsom ( Tony F. Soltani orally)

, for the

plaintiff.

The Office of the Rochester City Attorney , of Rochester ( Ter ence M.

O ’ Rourke , city attorney, on the memorandum of law and orally), for the

defendant.

HICKS , J. The plaintiff , Paul Martin, appeals an order of the Superior Court ( Houran , J.) denying hi s request for declaratory and injunctive relief against the defendant , City of Rochester (city)

, and ruling that the c ity’s technical review group (TRG) is not a public body for purposes of the Right

- to

Know Law

, see RSA ch

. 91

- A, and that the c ity’s copy fee schedule is in compl iance with RSA 91

- A:4, I V (Supp. 2016)

. On appeal, the plaintiff argues that : (1) the TRG is a “public body,” as defined by RSA 91

- A:1

- a, VI(d) (2013), because it is an “advisory committee,” and is therefore subject to t he open

-2

meeting require ment of RSA 91

- A:2 (Supp. 2019) ; and (2) the c ity’s copy fee

schedule is prohibited by RSA 91

- A:4, IV, as it charges citizens requesting a copy of a public record more than the “actual cost” of making the copy

. For the

reasons that follow, we affirm.

I. Factual Background & Procedural History

A. The Technical Review Group

The following facts were found by the court after a bench trial, or are

otherwise derived from the record

. The TRG is a “self

- directed work team” 1 in

the c ity

, orig inally established by a former city m anager. According to its statement of purpose, “the TRG is to review projects that are submitted for review to the Planning Board, including site plans and subdivisions .” The TRG is made up of c ity employees, including the chief planner or designee, city engineer, director of code enforcement, fire marshal, police captain, economic development manager or a designee (who chairs the group), and a representative of the conservation commission. The TRG does not h ave a separate budget and is funded by the departments from which the representatives come.

The city m anager is the sole appointing authority for the TRG and has the ability to dissolve or expand the TRG without the approval of the city

c ouncil. The c ity m anager can appoint or remove TRG members at will. Neither the city c ounc il nor the planning b oard ha s any input or authority over

the TRG. The TRG is not included in t he c ity’s c harter or any c ity ordinance.

TRG meetings are not considered public meetings by the c ity for public notice purposes, and therefore no notices are sent and no minutes are taken at the meetings , although dates and times of the meet ings are usually listed on

the c ity’s website

. Participation and observation by the pub lic are not

p ermitted at TRG meetings

. The s ecret ary for the planning d epartment is responsi ble for scheduling TRG meetings and sending electronic copies of the meeting agenda , applications to be reviewed, and accompanying plans to
members of the TRG . Th e applications and p roject plans are placed in the planning b oard file and are available for inspection by the publi c . TRG members typ ically communicate using their c ity e

- mail addresses, and although they communicate f requently in their capacity as c ity employees, they rarely communicate about TRG matters. E

- mails sent using c ity e

- mail

1 A self

- directed work team is a staff committee formed by the chief executive, or in the c ity’s case, the city manager. The staff committee is given a charge with a specific purpose, and its members

are self

- directed to determine how they are going to achieve the directive they have been given. Rochester’s city manager provided two examples, aside from the TRG, of self

- directed wo rk teams

that exist within the c ity.3

addresses are captured on the c ity e

- mail server and can be requested by the public for inspection.

At trial, the city m anager testified that the TRG members advise

ap plicants as well as the planning b oard, although the TRG has no binding

decision

- making authority

. The director of planning and d evelopment for the

c ity testified that neither the TRG as a whole nor its individual members have

the authority to grant or de ny conditional use permits, waivers, or variances. The director of p lann ing further testified that the c ity has a constitutional duty to assist applica nts preparing to go before the planning b oard, and that the TRG is part of the c ity’s process in meeting that obligation. To that end, the applicant, or the applicant’s agent, present s the application to the TRG . I ts
members then co mment on the plans and suggest chan ges in accordance with

various c ity regulations, laws , and policies. The TRG does not act as a group; each member makes suggestions based up on that person’s specific knowledge. The applicant is free to disregard the TRG’s recommendations, and is also free to request additional meetings with the TRG before presenting plans to the planning b oar d. Similarly, the applicant may also contact individual members of the TRG after the TRG meeting.

The c ity’s economic development d irector testif ied that the TRG is a group of c ity employees who work in an informal setting where the applicant can ask qu estions to prepare for presentations to the planning b oard. Additionally , the economic development director explained that if the TRG did not exist, the applicant would still have to speak to each one of the staff members comprising the TRG separatel y bef ore going in front of the planning

b oard. The TRG streamli ne s the process by having all of the department representatives available to an applicant in one place at the same time. The economic development d irector further testified that the planning b oard is not a “rubber stamp” for the TRG. She stated that she has witnessed instances in

which the planning board has rejected a project that members of the TRG believed was ready for approval, approved a project that members of the TRG expressed concerns about, and ignored the TRG’s comments altogether. The

TRG can neither advance nor stop a project from moving forward.

Follo wing a TRG meeting, the c ity’s chief p lanner prepares a summary of comments made by TRG members during the meeting that is provid ed to the applica nt and placed in the planning b oard file, which is available for public inspection. The c ity’s economic development d irector te stified that the TRG does not have records of its own, as its only function is to review applications

and assis t applicants. However, she stated that the comments made on a project by members of the TRG are loaded into a database , which can then be seen by the planning board

. This database is a cloud

- based system used by

c ity staff to view applications and their respective comm ents

. It is accessible to the public

, and an individual interested in accessing the system can create a4

free account to view comments made on applications, includi ng those made by

TRG members

.

B. Copy Fee Schedule

The plaintiff requested copies of certain documents from the c ity relating

t o the planning b oard and the TRG

. The c ity char ges a fee for making copies of

c ity records or files : f or b lack and white photocopies

, the fee is fifty cents per page for the first ten pages and ten cents per page thereafter. At trial, t he c ity presented evidence of fee schedules from New Hampshire municipalities that

are similar to its own

. The city m anager testified that the c ity charges only for

the cost of copying, not for the labor associated therewith, and that the cost of copying in cludes the cost of leasing copy machines, machine maintenance, capital costs, and the cost of paper. B ased on his history and experience as finance d irector for th e c ity, t he city m anager also testified that he believes the

c ity is charging a reasonable a pproximation of the actual cost to the c ity for producing a photocopy , and that payments for copying are not a revenue source and do not produce a profit.

C. Procedural History

In October 2017, the plaintiff sent an e

- mail to the c it y’s attorney claiming that the c ity’s practice of prohibiting the public from attending TRG meetings violates the Right

- to

- Know Law ’s open

- meeting requirement . The

c ity’s attorney responded that the TRG does not hold “meetings” as defined in the Right

- to

- Know Law because the TRG is not a “public body” subject to its

mandate. Subsequently, in May 2018, the plaintiff filed this suit seeking declaratory and injunctive relief from the c ity’s pr actice of prohibiting the public from attending TRG meetings

. The plaintiff ’s petition also challenged

the c ity’s copy fee schedule, claiming that it is excessive and chills or deters public access to government records. After a bench trial, the court denied the plaintiff ’s prayer s for relief. This appeal followed.

II. Discussion

Resolution of this case requires us to interpret the Right

- to

- Know Law, RSA chapter 91

- A, which is a question of law that we review de nov o

. Prof’l Firefighters of N.H. v. Local Gov’t Ctr. , 159 N.H. 699, 703 (2010). When interpreting a statute, we first look to the plain meaning of the words used and will consider legislative history only if the statutory language is ambiguous. Id

. The o rdinary rules of statutory construction apply to our interpretation of the Right

- to

- Know Law. Union Leader Corp. v. City of Nashua , 141 N.H. 473, 475 (1996).5 A. TRG as a “Public Body”

The plaintiff first argues that the TRG is a “public body” because it is an “advisory committee,” and , therefore, its meetings must be open to the public.

See RSA 91

- A: 2

, I (defining a “meeting ” as “the convening of a quorum of the membership of a public body”); II (stating that “all meetings . . . shall be open to the public ” ). The definition of “public body” includes five categories. See

RSA 91

- A:1

- a, VI(a)

- (e) (2013). Relevant to this appeal is the category defining a “public body” as: “ Any legislative body, governing body, board, commission, committee, agen cy, or authority of any county, town, municipal corporation, school district, school administrative unit, chartered public school, or other political subdivision, or any committee, subcommittee, or subordinate body thereof, or advisory committee thereto. ” RSA 91

- A:1

- a, VI(d ). The statute

defines an “advisory committee” as :

[ A ] ny committee, council, commission, or other like body whose primary purpose is to consider an issue or issues designated by the appointing authority so as to provide such authority with advice or recommendations concerning the formulation of any public polic y or legislation that may be promoted, modified, or opposed by such authority.

RSA 91

- A:1

- a, I (2013)

.

The plaintiff argues that the TRG is an “ advisory committee” because it s primary purpose is to consider land use applications and provide advice or

recommendations on them to the planning board, a member of which is the city manager, the TRG’s appointing authority

. We are not persuaded.

Although TRG members make comments on permit applications that may be helpful to the planning board, it does no t, as a group, render advice or make recommendations. Rather, each member reviews the application for compliance with the respective department codes and concerns. The record makes clear that, in consider ing land use applications , the TRG’s role is to apprise applicants of the relevant concerns of the municipal department s represented by its members. This process is meant to assist the applica nt in preparing the application for the planning board , consistent with the c ity’s

constitutional obligation to provide assistance to all its citizens. See Richmond

Co. v. City of Concord , 149 N.H. 312, 314 (2003); N.H. CONST. pt. I, art. 1.

The plaintiff

, however, reads the phrase “primary purpose” in RSA 91

- A:1

- a, I, as relating only to the TRG’s role in “considering” an application, not necessarily “ advising” on it. Under this reading, the plaintiff contends that the TRG’s primary purpos e is to consider whatever “subject matter . . . the city manager has designated for consideration.” We disagree with the plaintiff ’s reading of the statute.6

Pursuant to the statute’s plain meaning, t he ph rase “primary purpose ”

limits which committee s , council s, commission s , or other like bodies are advisory committees under the statute. The legislature has accomplished this

limitation with the use of the phrase “so as to,” which qualifies the verb “consider” that precedes it. Thus, a body’s consideration of issue s designated by the appointing authority in and of itse lf is not determinative of whether the body is an advisory committee. Rather, it is the purpose of the body’s consideration that is the deciding factor

— i.e. , whether the body’s primary purpose is to consider issue s “designated by the appointing authorit y so as to provide such authority with advice or recommendations concerning the formulation of any public policy or legislation . . . .” RS A 91

- A:1

- a, I (emphasis added). Because t he TRG , as a committee, does no t provide such advice or recommendations, i t is not an advisory committee

.

As the c ity points out , even if the TRG were to be dissolved , its work

would still take place by way of a more burdensome process involving a series

of individual meetings between applicants and municipal department offici als

. The c ity further observes, and the plaintiff does not dispute, that those individual meetings would not be subject to the Right

- to

- Know Law’s open

meeting requirement. Neverthe less, the plaintiff argues that streamlining this process by gather ing the municipal officials and the applicant in the same

room t riggers the open

- meeting requirement. See RSA 91

- A:2, II. In illustration of his position, the plaintiff contends that the TRG is no different

from the i nd ustrial advisory committee that we concluded was subject to the Right

- to

- Know Law in Bradbury v. Shaw , 116 N.H. 388, 389

- 90 (1976)

. He
contends that both the TRG and the committee in Bradbury “merely gathered and disseminated information to get it ready for submission . . . in a more

effic ient way,” and that the industrial advisory c ommittee did not have “any more influence on decisions of the mayor or city c ouncil than the TRG has on

the P lanning B oard.”

We disagree with the plaintiff ’s chara cterization of the committee in Bradbury . Th e Bradbury c ommittee considered matters of policy

, including the

extension of c ity water and sewer lines and the construction of new str eets, and advised the mayor

— the c om mittee’s appointing authority

— on the sale of city

- owned land. Bradbury , 116 N.H. at 389

- 90. Indeed, the mayor submitted one proposal for the sale of city

- owned land to the city council with a statement that the committee had approved it. Id . at 389. On that record, we concluded that “the trial court properly found that th e committee’s involvement in governmental programs and decisions brought it within the scope of the right

to

- know law.” Id . at 390. By contrast

, the TRG

, as the trial court explained

, “is not constituted to advise or make recommendations concerning formu lation of public policy or legislation.” Rather, the TRG members consider land use applications and apprise each applicant of the concerns of particular municipal department s that are represented by members of the TRG

. This process is meant to assist the applicants in preparing their applications for presentation7

to the planning board. The TRG simply is not involved in “governmen tal programs and decisions” as was the committee in Bradbury

. I d

.

Therefore, we concl ude that the TRG is neither an “advisory committee”

nor a “public body,” as defined by RSA 91

- A:1

- a, I

, and RSA 91

- A:1

- a, VI(d)

, respectively . Accordingly, meetings of the TRG are not subject to the open

meeting requirement contained in RSA 91

- A:2, II.

B. City Copy Fee Schedule

Next, the plaintiff argues that the trial court erred in concluding that the

fee s assessed by the c ity for providing photocopies of public records are commensurate with the ac tual cost s o f producing a photo copy, as required by

RSA 91

- A:4, IV. That provision provides, in part, that:

If a computer, phot ocopying machine, or other devic e maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person
request ing the copy may be charged the actual cost of providing the copy, which cost may be collecte d by the public body or

agency.

The plaintiff contends that, in drawing its conclusion, the trial court either relied on evidence that does not support its con clusion, or misapplied

RSA 91

- A: 4, IV b y failing to conduct a formulaic num eric analysis to determine

the c ity’s “actual cost” of providing a photocopy. Based upon the plaintiff ’s calculations, he maintains that the trial court could not have properly

con cluded that a rate higher than approximately four cents per page complies with the requirements of the Right

- to

- Know Law.

When a trial court renders a decision after a trial on the merits

, we uphold its factual findings and rulings unless they lack evidentiary support or are legally erroneous. Vention Med. Advanced Components v. Pappas , 171 N.H. 13, 28 (2018). We do not decide whether we would have ruled differently than the trial court, but rather, whether a reasonable person could have reached the same decision as the trial court based upon the same evidence.

Marist B ros. of N.H. v. Town of Effingham

, 171 N.H. 305, 309 (2018). Thus, we defer to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence. Id

. Nevertheless, we review the trial court’s application of

the law to the facts de novo

. Id

.

W e note that , in RSA 91

- A:4, IV, the legislature did not mandate use of a formulaic method for determining “a ctual cost” and we decline the plaintiff ’s

invitation to impose a requirement that the legislature did not see fit to include

. See Petition of Malisos , 166 N.H. 726, 729 (2014) (“We . . . will not consider8

what the legislature might have said or add language that the legislatur e did

not see fit to include.”)

. Therefore, contrary to the plaintiff ’s assertion, to prove that the c ity’s copy fee schedule complied with RSA 91

- A:4, IV, the c ity was not obligated to pr offer either specific numbers in support of its rate , or the c ity budget

.

At trial

, the court received evidence of copy fee schedules 2 from other municipalities. In addition

, the city manager testified to the co sts of producing a photocopy that are considered when establishing the fee schedule, including

the cost of lea sing copy machines, maintenance , capital costs on the machines, and the cost of paper. Further, the city manager testified that the fee schedule

is based up on the actual cost of copying, and not the labor associated with making the copies. The trial court found that the c ity’s fee schedule is “commensurate with ‘the actual cost of providing the copy ,’ . . . as evidenced by testimony of City offic ials and by comparison with other fees assessed in comparable municipalities across the state.” On the record before us, we

conclude that the evidence presented to the trial court was sufficient such that a reasonable person could draw the same conclusion that the court did.

III. Conclusion

We affirm the tri al court’s ruling that TRG meetings are not subject to the open

- meeting requirement contained in RSA 91

- A:2, and that the c ity’s copy fee schedule is commensurate with the “actual cost” of producing photocopies, as required by RSA 91

- A:4, IV

.

Affirmed

.

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

2 Based upon that evidence, the trial court found that “Derry charges twenty

- five cent s per page for a photocopy; Dover charges fifty cents per page; Portsmouth charges two dollars for the first page and fifty cents thereafter; Somers worth charges ten dollars for up to ten pages and any page beyond that is one dollar per page; Claremont cha rges twenty

- five cents to one dollar per page depending on the paper size; Nashua charges seventy

- five cents for the first page and ten cents per page after that; Laconia charges one dollar per page; and Manchester charges one dollar for the first copy and fifty cents for each additional copy .”