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Devere v. State7/8/2003
Merrimack
Argued: May 8, 2003
The State appeals from a Superior Court (McGuire, J.) order denying its motion to dismiss Peter DeVere's petition for disclosure of information under the Driver Privacy Act, RSA 260:14, V(a)(1), (4) (Supp. 2002). We affirm.
In 1997, Peter DeVere, principal organizer of the non-profit organization NH DWI Volunteers and an advocate of drunk-driving-related legislation, contacted a State senator and requested that she file legislation reforming the allocation of low digit license plates. DeVere suggested that legislation was needed because governors were granting low digit plates to reward people who made campaign contributions. He theorized that drivers with low digit plates were not subject to the same level of law enforcement as others. In August 1997, he submitted a request under the Right-to-Know Law, RSA ch. 91-A, to the New Hampshire Department of Safety (department) for the names of individuals allocated license plates with fewer than four digits. The department denied DeVere's request, stating that motor vehicle records were not covered by RSA chapter 91-A. The department also told DeVere that he was not an "authorized recipient" of the records under RSA 260:14.
In December 1997, DeVere filed a declaratory judgment petition in the superior court for release of the records under RSA 260:14, III, V(a)(1), V(a)(4) and VIII. The superior court granted his petition under section III. The State appealed and we reversed, remanding for a determination of whether the records were available to DeVere under section V. See DeVere v. Attorney General, 146 N.H. 762, 769 (2001).
On remand, the State argued that section V did not apply to DeVere because he did not represent a "legitimate business." The superior court disagreed and ruled that "non-profit, 'watchdog' organizations perhaps more often take a legitimate and responsible interest in motor vehicle and driver safety than for-profit businesses." The court also found that the disclosure would not constitute an unwarranted invasion of privacy because DeVere would only have access to the drivers' names and home towns and would be prohibited from publishing, redisclosing or contacting the drivers. The superior court concluded that DeVere was entitled to the requested records under subsections V(a)(1) and V(a)(4). The State appealed. During the pendency of this appeal, Peter DeVere died and his wife, Linda M. DeVere, was substituted as the plaintiff.
The State presents three arguments on appeal: (1) DeVere lacked standing; (2) the superior court erred in ruling that the department's rules exceed the scope of RSA 260:14, V(a)(1) and (a)(4); and (3) the superior court erred in concluding that the department unsustainably exercised its discretion by denying DeVere's request.
The State first argues that DeVere lacked standing because he failed to submit a formal application to the department under RSA 260:14 requesting the records. In essence, the State argues that DeVere failed to exhaust his administrative remedies. The plaintiff claims that all administrative remedies have been exhausted because the department treated the August 18th letter as an application under RSA 260:14 in rejecting the request for records. DeVere also states that it would have been futile to have filed a formal application with the department because the State has conceded that the department would have denied the request. The superior court found that the court and the parties "agreed that [they] would just proceed as if the Department [of Safety] had rejected [DeVere's request]." The State disputes this finding and maintains it consistently challenged DeVere's standing through
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