Supreme Court Splits 2-2 on Right-to-Know Request of Sununu

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Nancy West photo

New Hampshire Supreme Court in Concord.


CONCORD — The state Supreme Court evenly divided over whether Gov. Chris Sununu legally denied access to information regarding his veto of House Bill 706 which would have established an independent redistricting commission.

After he vetoed the bill Louise Spencer of Concord and a co-founder of the Kent Street Coalition filed a right-to-know request including correspondence between the governor, his staff, former Wisconsin Gov. Scott Walker and associates, and groups opposed to independent redistricting commissions.

The governor’s legal counsel responded that the state’s right-to-know law does not traditionally apply to the Governor’s Office.

And also responded there was no correspondence applicable to Spencer’s request, but 11 emails were discovered, but they were not “government documents” and would not be released.

Spencer appealed the decision to the Merrimack County Superior Court, where Judge John Kissinger granted Sununu’s motions to dismiss the case and for summary judgment.

Spencer appealed the case to the Supreme Court, which released a statement Wednesday that it had evenly divided on the four issues before it: whether the Right-to-Know Law applies to the Governor’s Office; whether the search for records conducted by the Governor’s Office was reasonable under the Right-to-Know Law and Part I, Article 8 of the New Hampshire Constitution;  whether the 11 emails withheld by the Governor’s Office constituted “governmental records” subject to disclosure under RSA 91-A, I, or Part I, Article 8; and if so, whether the emails are exempt from disclosure as part of the deliberative process or an executive privilege.

“Consistent with the Supreme Court’s settled practice, we also enter a judgment of affirmance in cases in which the judges are evenly divided,” the four justices wrote. “This is such a case. Accordingly, the judgment of the superior court is affirmed by an evenly divided court.”

But the court noted that such an affirmation is not entitled to precedential weight, which means it cannot be used in deciding a similar case.

Chief Justice Gordon MacDonald did not sit on the case as he was Attorney General when the actions at issue in the case occurred.

According to the original complaint, legislators were led to believe Sununu would sign the bill which had bipartisan support in both the House and the Senate, and a signing ceremony was being planned.

But Sununu abruptly vetoed the bill the complaint claims and less than two weeks later former Wisconsin Gov. Scott Walker, who at the time was the finance chair for the National Republican Redistricting Trust, a group opposed to independent commissions, issued an editorial saying Sununu “was right to veto (the) redistricting bill.”

After the editorial Spencer filed her right-to-know request to the governor’s office.

The original complaint also noted the governor has a policy of quickly destroying records, which the complaint notes could be in violation of the right-to-know law, but that issue was not before the Supreme Court for its review.

The Supreme Court didn’t identify how each of the four justices voted.

Garry Rayno may be reached at

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