Supreme Court At-a-Glance Contributor Katherine E. Hedges, An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

No. 2020-0036

Dec. 7, 2021

Affirmed in part, reversed in part, and remanded.

 

  • Whether certain portions of a contract for the purchase of covert communications equipment were exempt from disclosure under RSA 91-A, New Hampshire’s Right-to-Know Law.

 

The trial court determined that portions of a contract between a vendor and the City of Concord (“City”) for the purchase of covert communications equipment was exempt from disclosure under New Hampshire’s Right-to-Know Law, RSA 91-A. The American Civil Liberties Union of New Hampshire (“ACLU”) argued on appeal that the City did not meet its burden to establish portions of the contract are exempt and that the trial court erred when it held an ex parte in camera hearing for the City to provide evidence in support of the exemption.

The 2019-2020 proposed budget for the City included a line item for “Covert Communications Equipment,” and city employees would not identify what the equipment was. The Chief of Police sated that the City had a non-disclosure agreement with the equipment’s vendor that prevented the disclosure of the nature of the equipment. Both the ACLU and the Concord Monitor thereafter filed Right-to-Know requests seeking the nature of the equipment. When the City produced the contract related to the sale of the equipment, it included a number of redactions about the nature of the surveillance technology. The City claimed exemption under the six-prong test applicable to requests for law enforcement records set forth in Murray v. New Hampshire Division of State Police, 154 N.H. 579 (2006).

The plaintiff challenged the withholding of the information under RSA 91-A. With the plaintiffs’ assent, the City submitted the unredacted copy of the agreement to the court for in camera review. The City also filed a motion for an ex parte in camera hearing so that the police could answer the court’s questions about the redactions, but the plaintiffs objected. The court held the hearing and ruled that the redacted portions were exempt from disclosure under Murray.

On appeal, the Court found that most of the information was properly redacted, but that one provision of the agreement should have been disclosed. It also found that it was not improper for the trial court to have held an ex parte in camera hearing to review the agreement and hear the City’s arguments in support of the exemption. The Court found that when the government had made as complete and detailed public disclosure as possible to describe the basis for the exemption but there was not enough information for the court to make a ruling, it is proper for an ex parte in camera hearing to be held. The Court cautioned this should only be used rarely.

The Court also examined each redaction in light of the Murray exemption and upheld the redaction of the name of the vendor, the nature of the equipment, the type of information gathered by the vendor, and how the vendor uses the information. The Court affirmed by an equally divided Court the nondisclosure of a choice-of-law provision. The Court did reverse the upholding of a redaction of the clause giving the vendor certain rights if there was a possibility of public disclosure of the technology after finding that the City failed to meet its burden to show that the provision was exempt from disclosure. Two other clauses were subsequently disclosed, so the City waived its right to claim that such information was exempt from public disclosure.

Henry R. Klementowicz (on the brief and orally) and Gilles R. Bissonnette (on the brief), American Civil Liberties Union of New Hampshire Foundation, for the plaintiffs. James W. Kennedy, city solicitor, Concord, for the defendant.