NH High Court rules liquor agency in violation of Right-to-Know on Law Warehouse request

Wednesday, April 16, 2014

CONCORD – The state’s highest court has ruled that the New Hampshire Liquor Commission broke the Right-to-Know Law by failing to answer Law Warehouse’s demand to see how it lost a 20-year, $20 million state contract.

In a unanimous written ruling, the Supreme Court kicked the complicated business contract dispute back down to a lower court.

The move could give the Nashua-based company its first full look at the competing contract awarded to Exel Inc. and any supporting documents.

The decision may have no bearing on whether Law Warehouse can succeed in nullifying the liquor agency’s November 2012 decision to take away the business that Law had for more than 40 years.

The trial on that underlying case is tentatively set for November.

Principal Brian Law and his lawyers have maintained that the liquor agency was biased against Law Warehouse and rigged the award for Exel, a wholly owned subsidiary of international delivery giant DHL Express.

They maintain that evidence of such discrimination could be contained in the bid documents, some of which were withheld or had portions redacted before Law and his lawyers received them.

“It was encouraging that the trial court will now have an opportunity to review what was done in this case,” said Chris Carter, Law’s lead lawyer in this matter.

State prosecutors and Liquor Commission Chairman Joseph Mollica have maintained that the bidding process was fair and Exel was rightly judged the best contract for the state, as it will produce millions in savings over the next two decades.

Exel built a nearly 300,000-square-foot, state-of-the-art warehouse in Bow, and operations began there in November.

The Supreme Court chose not to hear oral arguments on this matter but instead issued a brief written decision released Thursday.

In the order, the justices said any government agency’s decision to withhold public information must overcome a presumption.

“A public entity seeking to avoid disclosure under the Right-to-Know Law bears a heavy burden to shift the balance toward nondisclosure,” they wrote.

The liquor agency violated a key provision of the open records law by not responding to Law’s request to release information within five days or to give a detailed reason why some material would not be forthcoming.

“The time period for responding to a Right-to-Know request is absolute; delayed disclosure violates the statute,” they wrote.

The high court rejected the claim of state prosecutors that this Right-to-Know lawsuit was premature and that Law had bureaucratic options short of filing it.

The Supreme Court said the law exempts confidential, commercial or financial information from disclosure but said a judge has to review the documents and decide which ones can be released and which remain confidential.

Trial judge Richard McNamara also must address whether the liquor agency had any legal defense for releasing information to Law and his lawyers on a “rolling basis” beyond the time period for deciding whether to disclose or keep secret.

A 2009 Liquor Modernization Act supported by Gov. Maggie Hassan, who was a state senator at the time, gave the liquor agency more free rein to be run like a private business and removed any legislative and Executive Council oversight of these contracts.

Largely in response to this dispute, the Legislature reversed itself last spring, passing a law that going forward puts the Executive Council in control of contracts greater than $10,000 dealing with liquor warehousing, transportation and advertising.

The new law still exempts from council oversight competitively bid contracts that deal with the operation of retail stores and the state’s dealings with liquor or wine wholesalers.

Law and a third firm that lost the bid contend that the liquor agency inflated estimates that Exel’s contract would save the state millions of dollars a year.

Kevin Landrigan can reached at
321-7040 or klandrigan@nashua
telegraph.com. Also, follow Landrigan on Twitter (@Klandrigan).


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