Supreme Court: Liquor Commission, trial judge did not follow right-to-know lawBy MARK HAYWARD
New Hampshire Union Leader
April 15. 2014 2:43PM
The New Hampshire Supreme Court has ruled that the state Liquor Commission and a trial judge did not properly follow the state right-to-know law, a ruling that could allow access to the contract that Law lost to an out-of-state company.
The complicated ruling throws the issue back to Superior Court Judge Richard McNamara, who will have to review the Liquor Commission-Exel contract page by page and determine what portions to make public.
Law lost its decades-old contract with the Liquor Commission to the Ohio-based Exel in 2012. With a 20-year, $200 million contract in hand, Exel built a warehouse in Bow and started operating there in December.
Concord lawyer Chris Carter, who represents Law, said the company filed the action so the public could understand the basis the Liquor Commission used to award the contract to Exel.
“It shouldn’t have been necessary to bring a separate lawsuit to release this public information,” he said.
Law also has sued the Liquor Commission over its use of state bidding procedures.
The unanimous ruling was signed last Thursday by justices who said they didn’t need to hear the case in oral argument. It overturns a lower court ruling that determined the Liquor Commission did not violate the right-to-know law.
The ruling faults the New Hampshire Liquor Commission for not following procedures of the right-to-know law. And it holds open the question of whether the commission will have to pay attorney fees for Law Warehouse.
Law faulted the Liquor Commission for violating the state right-to-know law by not releasing the entire contract with Exel as well as internal documents used by the commission to weigh the bids for a warehouse contract. Much of that information has been subsequently released.
In its order, the Supreme Court sided with the Liquor Commission and said the law exempts confidential, commercial or financial information from disclosure. But the court said the burden is on the Liquor Commission to prove what information is exempt.
The court said McNamara must review all the documents and decide which ones can be released and which remain confidential.
It also faulted the Liquor Commission for releasing other documents requested by Law on a “rolling basis.”
The right-to-know law requires a state agency to acknowledge a request within five business days or provide a date when the material would be available.
“The time period for responding to a right-to-know request is absolute; delayed disclosure violates the statute,” reads the order.
The justices called on McNamara to determine whether the production of documents on a “rolling basis” can satisfy the right-to-know law. It asked the judge to address the issue and make a legal analysis.
According to a recent article, a trial is scheduled for November between Law and the Liquor Commission.
The Liquor Commission claims it is immune from significant damages; Law claims misconduct by the Liquor Commission.