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Access and Accountability Triumph in the Granite State

By William Chapman

On May 29, 2020, the New Hampshire Supreme Court issued a pair of decisions that will make the conduct of government more transparent and government employees more accountable. Coming four days after the tragic death of George Floyd and growing outrage over police confrontations with Black citizens, the decisions addressed the conduct of police officers in two different departments. At issue in each case was a provision of the New Hampshire Right-to-Know law that exempts "[r]ecords pertaining to internal personnel practices; confidential, commercial, or financial information ... and personnel ... files."

In Seacoast Newspapers, Inc. v. City of Portsmouth, the Court overruled a 1993 decision in which it had broadly construed the "internal personnel practices" exemption "to categorically exclude from disclosure records documenting a public agency's internal discipline of an employee." Slip Opinion at 4. At issue in the 1993 case, Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993), were records of "an internal investigation of a police department lieutenant accused of making harassing phone calls." 136 N.H. at 625. The department suspended the officer without pay and made public its Internal Investigation Disposition Form setting out some findings, including the officer's name. It withheld, however, "memoranda and other records compiled during the investigation." Id. at 626.

Not having previously construed the "internal personnel practices" exemption, the Court stated its meaning "is neither explained nor defined by the statute." 136 N.H. at 626. Taking up the words "internal," "personnel" and practices," it found their meanings "quite broad." Unlike its approach in earlier Right-to-Know cases, the Court did not interpret the exemption restrictively. It ruled that the records at issue "plainly 'pertain[] to internal personnel practices' because they document procedures leading up to internal personnel discipline, a quintessential example of an internal personnel practice." Id.

That the records should be confidential was reinforced by the Court's reading of the legislative history of another law the House judiciary committee considered at the same time it was hearing an amendment to the Right-to-Know law. After reporting on the amendment, a committee member followed with one that:

provides that proceedings of internal police investigations may not be introduced as evidence in a civil suit other than a disciplinary action. Protection for these files, which will remain confidential under the Right-to-Know law will encourage thorough investigation and discipline of dishonest or abusive police officers.

Id. at 627 (emphasis original). Taking that as a directive, the Fenniman court concluded that balancing the benefits of disclosure against nondisclosure, which it had done in prior cases involving "confidential" and "personnel" records, was not appropriate "where, as here, the legislature has plainly made its own determination that certain documents are categorically exempt." Id.

Fenniman provided the governing rule in two subsequent cases. In the first, Hounsell v. North Conway Water Precinct, 154 N.H. 1, (2006), the precinct retained two investigators to review a complaint made by an employee who claimed a co-worker had threatened and harassed him. The co-worker was put on paid leave while investigators looked into the complaint and prepared a report of their findings and recommendation. The precinct took no action against the co-worker but did issue a press release announcing its decision. Noting that the report "was generated in the course of an investigation of claimed employee misconduct," the Court ruled it "was a record pertaining to 'internal personnel practices.'" Id. In the second, Clay v. City of Dover, 169 N.H. 681 (2017), the Court categorically exempted forms completed by a school board search committee based on information provided by applicants for the superintendent position, which the Court stated: "was gathered in the course of the hiring process ... on behalf of the superintendent's employer." Id. at 162.

In the Seacoast Newspapers case, a Portsmouth police officer's union challenged his termination and sought reinstatement. Arbitration of the grievance was conducted under a collective bargaining agreement. According to the Court, the officer's conduct had received "significant media attention throughout New Hampshire and beyond, given the significant public's interest in learning how its public officials resolve matters involving alleged breaches of trust and conflicts of interest by public employees and, in particular, police officers." Slip opinion at 2. A reporter for Seacoast Newspapers requested the arbitration decision. Although Portsmouth was willing to disclose it, the union disagreed and intervened in the trial court proceedings. After an in camera review of the decision, the trial court ruled that the "grievance 'process was conducted internally and was performed for the benefit of ... [the officer] and his former employer' and therefore 'bore all the hallmarks of an internal personnel practice.'" Slip opinion at 3.

On appeal, Seacoast Newspapers asked the Court to overrule Fenniman, arguing it had misconstrued the "internal personnel practices" exemption. This led the Court to undertake its stare decisis analysis in which the issue is not whether it "would decide the issue differently de novo, but:

whether the rule has proven to be intolerable simply by defying practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

Slip opinion at 5-6.

As to the first factor, the Court stated a broad interpretation of the exemption "is easily applied." Slip opinion at 6. As to the second, it ruled that reliance interests are most often involved in commercial matters "'where advance planning of great precision is most obviously a necessity.'" Id. The Union had not argued reliance on Fenniman in opposing disclosure of the arbitration decision.

The third factor asks whether "related principles of law have developed" such that the categorical exemption of "internal personnel practices" is "a remnant of an abandoned doctrine." Slip opinion at 6. According to the Court, "Fenniman is an outlier ... because it broadly interpreted one of the statutory exemptions, citing four subsequent cases in which it had narrowly interpreted other exemptions in the law. Here, the Court did not acknowledge that the Fenniman court had noted its practice of construing exemptions to the Right-to-Know law narrowly, citing Mans v. Lebanon School Bd., 112 N.H. 160 (1972), the first case in which it adopted that rule. There, the Court stated that the exemption provisions were similar those in the Freedom of Information Act, as to which "[t]here appears to be general agreement that ... '(t)he exemptions authorizing nondisclosure should be interpreted restrictively.'" 112 N.H. at 162-163 (citations omitted). Mans was cited for that proposition in at least two other cases prior to Finneman, Menge v. Manchester, 113 N.H. 533, 537 (1973); and Orford Teachers Association v. Watson, 121 N.H. 118, 121 (1981). The bottom line: the Court's discussion and reliance on this proposition as its "'customary standard for construing the Right-to-Know Law,'" Slip opinion at 7, makes clear that other provisions of the law that could be read to restrict access also are to be narrowly construed.

Under the fourth factor, the Court "ask[s] whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification." Slip opinion at 7. The Court pointed to four facts:

(1) The principle of "transparent governance integrated into our constitution and the Right-to-Know Law." Id. Although Part I, Article 8 of the state constitution was amended in 1976 to expressly provide for reasonable access to governmental proceedings and records, the Mans court never mentioned it or the important interests it serves for self-governing people. The post-Fenniman cases cited by the Court express the importance of "'access to all public documents,'" and the significant public interest in knowing "a government investigation is comprehensive and accurate," how "taxpayer money [is spent] in conducting public business," and having records "'that shed[] light on an agency's performance of its statutory duties.'" Slip opinion at 7-8.

(2) The meaning of "internal personnel practices" exemption when the words are "read together." Id. Rather than divining the meaning of the exemption by looking individually at the definitions of each word, which the Fenniman court had done and found to be "quite broad," the Court stated by reading the words "together, the words modify one another, thereby limiting the scope of the exemption." Slip opinion at 8.

(3) The "interpretation of a similar exemption under FOIA." Although the Court in Mans had looked to how a similar FOIA provision had been interpreted, it failed to do this in Fenniman. Instead, as discussed, it relied on the three words of the exemption and legislative history of another bill that made police investigations inadmissible at trial.

The similar exemption in the FOIA is 5 U.S.C. §552(b)(2): "matters that are related solely to the internal personnel rules and practices of an agency." The Fenniman construction of the "internal personnel practices" exemption, the Court stated, is "markedly broader than the United States Supreme Court's interpretation of that exemption's federal counterpart," citing to its discussion in Reid v. New Hampshire Attorney General, 169 N.H. 509,521 (2016). Slip opinion at 8. The Reid court looked to Dept. of Air Force v. Rose, 425 U.S. 352, 369-370 (1976), for the meaning of exemption (b)(2). In Rose, the records at issue were "summaries of honor and ethics hearings, with personal references or other identifying information deleted." 425 U.S. at 355. The court stated that "Exemption 2 is not applicable to matters subject to such a genuine and significant public interest ... [T]he general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest." 425 U.S. at 369. The summaries, however, were records in which the public had a "genuine and significant public interest." The court explained:

Since the purpose of the Honor and Ethics Codes ... is to ingrain the ethical reflexes basic to these responsibilities in future Air Force officers, and to select out those candidates apparently unlikely to serve these standards, it follows that the nature of this instruction and its adequacy or inadequacy is significantly related to the substantive public role of the Air Force and its Academy. Indeed, the public's stake in the operation of the Codes as they affect the training of future Air Force officers and their military careers is underscored by the Agency's own proclamations of the importance of cadet-administered Codes to the Academy's educational and training program.

425 U.S. at 368 (emphasis added). The Reid court's reliance on Rose indicates that records relating to the training, supervision and conduct of police officers and other public employees should be accessible to the public.

(4) As for the fourth fact, the Fenniman court's broad interpretation of "internal personnel practices" rendered the "'[the] personnel ... files'" exemption superfluous. Slip opinion at 8. By categorically exempting records related to the investigation of the police lieutenant, that court overlooked the reason the legislature had created an exemption for "personnel" files.

Yet having addressed those facts, the Court took up a final consideration: "'test[ing] the consistency of overruling [Fenniman] ... with the ideal of the rule of law ... gaug[ing] the respective costs of reaffirming and overruling a prior case.'" Slip opinion at 9. It restated that a broad construction of the "'internal personnel practices'" exemption substantially undermines the guarantees protected by the Right-to-Know Law'" and justifies viewing the law as "'weak and easily evaded.'" Id. Pointing to the preamble to the law – "Openness in the conduct of public business is essential to a democratic society" – the Court stated "[t]he costs of overruling Fenniman[] ... are insubstantial and heavily outweighed by the rewards," pointing to "transparent government." Id.

Having concluded that Fenniman should be overruled, the Court turned to defining the meaning of the "internal personnel practices" exemption. It stated the terms "internal" and "personnel" "modify the word 'practices,' thereby circumscribing the provisions scope." Slip opinion at 11. As it had in the Reid case, it ruled that the exemption was limited to "'practices that exist or are situated within the limits of employment.'" Id. Examples include records related to "'employee relations' or 'human resources,'" such as employee "'use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like.'" Id. Thus, the exemption was limited to "internal rules and practices governing an agency's operations and employee relations, not information concerning the performance of a particular employee. Id.

That did not end the case because the Right-to-Know law also contains an exemption for "personnel" file records. The Court stated records coming within this exemption "document[] the history or performance of a particular employee," such as "an employee's work performance." Slip opinion at 12. For this reason, the Court remanded the case to the trial court so it could decide whether the arbitration decision was a "personnel" file record and, if so, whether its disclosure "would constitute and invasion of privacy." Slip opinion at 13.

In Union Leader Corp. v. Town of Salem, (May 29, 2020), the Court considered the issue it did not address in Seacoast Newspapers: whether "internal personnel practices" records are categorically exempt under the Right-to-Know law. The Union Leader and ACLU of New Hampshire sought access to three extensive, "highly critical" audit reports of the Salem Police Department. The town made portions of the reports public but redacted sections based on the "internal personnel practices" and "personnel files" exemptions. After reviewing the reports in camera, the trial court ruled that the following information came within the "internal personnel practices" exemption: (1) "the identity of participants in particular internal affairs investigations;" (2) "particular employee's scheduling of outside details and time off;" (3) "employee arrange[ments] for vacation leave and other time off from work;" and (4) "the names of employees ... paid for outside details during hours ... they were also receiving regular pay." Slip opinion at 3. Applying Fenniman, it ruled all the foregoing information was categorically exempt. Nonetheless, it commented that balancing "'the public interest in disclosure against the privacy interest of the "individual officers and higher-ups strongly favors disclosure of all but small and isolated portions of the Internal Affairs Practices section of the audit report.'" Id. at 3.

To decide whether Fenniman's categorical exemption of "internal personnel practices" records should be overruled, the Court applied the same four-part test it had in Seacoast Newspapers. Its discussion of the first two factors – difficulty or impracticality of application, and reliance resulting in hardship – was essentially the same: the first factor weighed in favor or retaining the rule, the second was not implicated.

The Court addressed the third and fourth factors together – "has the law developed in such a manner as to undercut" Fenniman, and have the facts "'so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.'" Slip opinion at 7. It ruled that Fenniman should be abandoned because it did not fully consider the Court's prior case law or legislative history, or whether "'applying a per se rule to 'internal personnel practices' ... would nullify" the other exemptions. Id.

Prior to Fenniman the Court had consistently applied a balancing test to the other exemptions in the law. Although the legislature added semicolons to separate the exempt categories in 1986, the Court stated nothing in the legislative history indicated a legislative intent to limit application of the balancing test. Slip opinion at 8. Under that test, the Court first asks whether there is any privacy interest at stake. If there is, the issue becomes whether there is any public interest in disclosure. If so, that interest is balanced against "the government's interest in nondisclosure and the individual's privacy interest in nondisclosure." Slip opinion at 8. Each of these considerations is to be judged "'by an objective standard and not a party's subjective expectations.'" Id.

In the course of its discussion of the third and fourth factors, Court explained that its test for determining whether information is "confidential" and exempt is different than the three-part balancing just discussed. "Confidential" information is information that, if disclosed, (1) likely would harm the government's "'ability to obtain necessary information in the future,'" or (2) would substantial[ly] harm ... the competitive position of the person from whom the information was obtained.'" Slip opinion at 9.

Finally, the Court recognized what the Fenniman court failed to appreciate, given its broad reading of the "internal personnel practices" exemption. Treating that exemption as categorical rendered the "personnel" files exemption "a nullity." Slip opinion at 9. As the Court explained, merely by asserting the "internal personnel practices" exemption "'a governmental agency could skirt the public interest balancing analysis ...." Id.

Postscript: Not a week had passed before the transparency and accountability promised by the pair of decisions was evident. On June 3, 2020, dispensing with the issuance of "a formal written opinion, the Court decided Marianne Salcetti v. City of Keene, 2020 WL 3167669 (2020). There, a journalism professor at Keene State College and several students in her class filed a Right-to-Know law case against the city of Keene seeking, among other records, "all citizen complaints, logs, calls, and emails regarding charges of excessive police force and/or brutality." Id. at *5. Citing Fenniman, the trial court ruled that 119 pages of citizen complaints were exempt. The Court vacated that ruling and "remand[ed] for consideration in light of Seacoast Newspapers, Union Leader, and this decision." Id. at 7.

William Chapman is a partner at Orr & Reno in Concord, NH.

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