Constitutional Law

No. 2019-0135

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

May 29, 2020
Vacated and remanded.

 

  • Whether the Right-to-Know Law’s exemption for “internal personnel practices” and “personal files” as set forth within Fenniman is narrow enough to effectuate the purpose of the law

Seacoast Newspapers sought the arbitration decision concerning the widely publicized termination of a City of Portsmouth police officer. Counsel for the City and the union maintained that the arbitration decision was exempt from disclosure under the Right-to-Know law’s exemption for “internal personnel practices” and “personnel files” as defined within Union Leader Corp. v. Fenniman. Seacoast filed a petition to compel disclosure and seeking attorneys’ fees. The trial court denied the request and concluded that it was exempt from disclosure under the “internal personnel practices” exemption. This appeal followed.

The Supreme Court noted that “internal personnel practices” was broadly construed in Fenniman to categorically exclude from disclosure records documenting a public agency’s internal discipline of an employee. The Court noted that Fenniman was a departure from the customary Right-to-Know jurisprudence because it was not narrowly interpreted and there was no balancing test. The Supreme Court conducted a Stare Decisis analysis and identified the four requirements to overrule a decision, including the practical workability of the rule, the consequence of overruling, the development of the law, and whether the facts have changed or come to be seen differently and changed application or justification of the rule. The New Hampshire Supreme Court then overruled Fenniman “to the extent it broadly interpreted the “internal personnel practices” exemption and its progeny to the extent they had relied on that broad interpretation.

The Court remanded the issue to the trial court to determine (1) whether the arbitration decision can be considered a ‘personnel file’ or ‘part of a personnel file’; and (2) whether disclosure of the material would constitute an invasion of privacy. The Court denied the request for attorneys’ fees in light of Fenniman.

 

Richard Gagliuso, Bernstein, Shur, Sawyer & Nelson, Manchester, and Gilles Bissonnette and Henry Klementowicz, American Civil Liberties Union of New Hampshire, Concord, for the plaintiff. Thomas Closson, Jackson Lewis, Portsmouth, for the defendant. Peter Perroni, Nolan Perroni, Massachusetts, for the intervenor, New England Police Benevolent Association, Local 220.