April 20, 2021
Modified in part, and affirmed as modified.
- Issue: Whether the trial court erred in applying a balancing test to determine whether a report prepared by an attorney on behalf of a school administrative unit should be disclosed; whether the trial court erred when it ruling that the report was not per se exempt under NH’s Right-to-Know exemption; whether the trial court erred by failing to conduct an in camera review of the report; whether the trial court erred when ruling to award attorney’s fees.
School Administrative Unit No. 55 appealed an order of the Superior Court denying its motion to dismiss the complaint filed by Hampstead School District and Hampstead School Board (collectively “Hampstead”), and granting Hampstead’s request for an order compelling the SAU to produce immediately an attorney-prepared investigative report. Hampstead cross-appealed the trial court’s denial of its request for attorney’s fees.
In 2018, Hampstead School Board adopted a resolution rejecting and disapproving inappropriate and unprofessional conduct by Timberlane Regional School Board, which was part of the SAU. The SAU hired a lawyer to investigate the allegations. The lawyer found no merit in the allegations. Hampstead’s counsel requested a copy of the report. The SAU declined asserting the entire report exempt under RSA 91-A:5, IV because it pertained to internal personnel practices, among other things. Hampstead filed the instant action and SAU moved to dismiss. The trial court granted Hampstead’s petition, denied SAU’s motion to dismiss and denied Hampstead’s request for attorney’s fees. The parties unsuccessfully moved for reconsideration, and an appeal and a cross-appeal followed.
On appeal, the SAU argued first that the trial court erred in applying a balancing test to determine whether the report should be disclosed instead of applying a per se rule of nondisclosure. The Supreme Court declined to follow SAU’s reasoning and held that the Supreme Court’s long-standing precedent requiring a two-party analysis had not been explicitly overruled and therefore the trial court had not erred.
The SAU argued second that it was proper for the Supreme Court to vacate the trial court’s order and remand to consider whether the report pertained to internal personnel practices or constituted a personnel file. The Supreme Court declined the SAU’s request to vacate and remand because the decision whether to disclose the report was governed by the invasion of privacy three-step test that the trial court had already applied and on which the SAU failed to prevail.
Finally, in its third argument, the SAU contended that the trial court erred by failing to conduct an in camera review to decide whether there should be total or partial disclosure of the report. The Supreme Court affirmed the trial court’s disclosure order and held that the SAU’s argument regarding in camera review was moot because Hampstead acknowledge at oral argument that it was incumbent on the SAU to decide whether any specific information in the report should be redacted.
On cross-appeal, Hampstead argued the trial court erred in denying Hampstead’s request for attorney’s fees. The Supreme Court held that the trial court properly denied an award of attorney’s fees because the SAU neither knew nor should have known its conduct violated NH statutes. Further argument that the trial court should have awarded a proportionate share of attorney’s fees also failed because the Supreme Court found that Hampstead had failed to provide a record demonstrating it made this argument in the trial court.
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael G. Eaton on the brief and orally), for the plaintiffs. Jackson Lewis P.C., of Portsmouth (Debra Weiss Ford, Martha Van Oot, and Samuel H. Martin on the brief, and Mr. Martin orally), for the defendant.