Constitutional Law

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

No. 2019-0206
May 29, 2020
Vacated and remanded.

  • Whether the “internal personal records” exemption under the New Hampshire Right-to-Know law, RSA 91-A:5, IV, should be a per se rule or whether it requires a balancing test

The plaintiffs Union Leader Corporation and American Civil Liberties Union of New Hampshire, appeal an order in Superior Court which denied their petition to release unredacted copies of three categories of documents together known as the audit report: (1) the 120 page audit report of Salem Police Department dated October 12, 2018 focusing on the Internal Affairs complaint and investigation; (2) the 15 page addendum focused on the Salem Police Department’s culture;(3) the 42 page audit of the Salem Police Department dated September 19, 2018 focusing on time and attendance practices.

The Town of Salem had publicly released a copy of the audit report but made redactions pursuant to the Right-to-Know law exemptions, (1) “internal personnel practices” exemption and (2) the exemption for “personnel . . . and other files.” The Town specifically redacted information to protect the identity of participants in internal affairs investigations; related to a particular employee’s scheduling of outside details and time off; the manner in which an employee arranged for vacation leave and time off work; and the names of employees paid for outside details during hours they were also receiving regular pay. The trial court then ordered the Town to provide a copy of the audit report containing only the redactions it upheld.

The issue before the Supreme Court was the interpretation of RSA 91-A:5, IV, which exempts from disclosure under the Right-to-Know law, records pertaining to “internal personnel practices; confidential, commercial, or financial information; . . . and other files whose disclosure would constitute an invasion of privacy. The Court observed that Fenniman cannot be reconciled with case law, legislative history, or statutory language. That a balancing test can be applied to disclosure of “confidential commercial, or financial information,” but not applied to test the disclosure of records related to “internal personnel practices.” The Court concluded that the per se rule has “become no more than a remnant of abandoned doctrine.”

The Court overruled Fenniman “to the extent that it adopted a per se rule of exemption for records relating to “internal personnel practices” and overrule its progeny to the extent that they applied that per se rule of exemption.” The Court held that the balancing test used for other categories of RSA 91-A:5, IV shall apply to “internal personnel records.

 

Gregory Sullivan, Malloy and Sullivan, Massachusetts, Charles Douglas, III, Douglas Lennard and Garvey, Concord for the plaintiff, Union Leader Corporation. Gilles Bissonnette and Henry Klementowicz, American Civil Liberties Union of New Hampshire, Concord, and Richard Lehmann, Manchester, for the plaintiff, American Civil Liberties Union of New Hampshire. Barton Mayer and Nathan Midolo, Upton Hatfield, Concord, for the defendant. Peter Perroni, Nolan Perroni, Massachusetts, for the intervenor New England Police Benevolent Association Local 220. Cordell Johnston, Steven Buckley, and Natch Greyes, New Hampshire Municipal Association, Concord, as amicus curiae.