June 17, 2020
By Jonathan Van Fleet
The legal exemption cited by the Concord School Board to withhold a 100-page report examining how staff responded to accusations of inappropriate conduct by former teacher Howie Leung has been overturned by the New Hampshire Supreme Court.
Lawyers for the school district said the entire report that led to the firing of Principal Tom Sica and Superintendent Terri Forsten could not be publicly released because it involved “internal personnel practices,” which were categorically exempt from the right-to-know law.
A Concord parent, the Monitor and the ACLU have sued to obtain the report written by investigator Djuna Perkins, excluding any identifying student information.
On Friday, the Supreme Court issued an opinion in a related lawsuit that overturned a decision in a 1993 case known as Union Leader Corp. v. Fenniman. Justices said the categorical exemption was too broad and was contradictory to the state constitution and right-to-know law, which mandate transparency.
“Our broad interpretation of the exemption in Fenniman, which has resulted in a broad category of governmental documents being withheld from public inspection, is contradictory to our state’s principles of open government,” justices wrote.
The ruling was applauded by the ACLU of New Hampshire.
“These historic New Hampshire Supreme Court decisions have restored the promises of transparency and accountability enshrined in our state’s right-to-know law and New Hampshire Constitution,” said ACLU Legal Director Gilles Bissonnette, who argued the case before the Supreme Court.
The cases before the Supreme Court involve the Union Leader Corporation, which sought unredacted audits of the Salem Police Department, and Seacoast Newspapers Inc., which requested an arbitration decision on a fired Portsmouth police officer.
“This exemption had been used by government agencies to prevent access to critical information, such as that concerning police officer misconduct or how a school district responded to allegations of sexual abuse by a former teacher,” Bissonnette said. “The N.H. Supreme Court’s decisions appropriately narrow this previously broad exemption, as well as require the examination of public interest to ensure government accountability in the Granite State.”
Specifically, the Supreme Court’s ruling will allow judges to apply a balancing test to weigh privacy concerns against the public’s interest in disclosure.
“We therefore resolve questions regarding the right-to-know law with a view to providing the utmost information, broadly construing its provisions in favor of disclosure and interpreting its exemptions restrictively,” justices wrote. “For these reasons, a narrow interpretation of the ‘internal personnel practices’ exemption accords with our constitution and the right-to-know law’s underlying purpose.’ ”
Attorney Rick Gagliuso represented Seacoast newspapers in the case.
“The people of New Hampshire are the real winners today,” “Gagliuso said in a statement. “The N.H. Supreme Court today took a bold step in favor of ensuring that essential right, overruling a line of cases that had stood for 30 years. In doing so, it not only corrected a clear error but eliminated the grounds most often cited by public agencies for withholding a wide swath of public records from public view.”
The court’s decision was not unanimous.
One justice, Anna Barbara Hantz Marconi, issued separate opinions in which she did not see a need to overrule the 1993 case.
A ruling by a Merrimack County Superior Court judge on disclosure of the Howie Leung report has not yet been issued. Leung is facing felony charges that he sexually assaulted a former Concord student at summer program in Massachusetts.
(Material from the Associated Press was used in this report.)
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