NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by e-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
5th Circuit Court-Claremont Family Division
No. 2018-0601
PETITION OF THE STATE OF NEW HAMPSHIRE
Argued: May 16, 2019
Opinion Issued: August 6, 2019
Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general,
on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the juvenile.
Malloy & Sullivan Lawyers Professional Corporation, of Hingham,
Massachusetts (Kathleen C. Sullivan on the brief), for Union Leader
Corporation, as amicus curiae.
HANTZ MARCONI, J. The State filed a petition for original jurisdiction
seeking review of an order of the Circuit Court (Yazinski, J.) denying a request
by the Office of the Attorney General (AGO) to release records underlying its
investigation into an incident involving minors. See Sup. Ct. R. 11. We affirm
the court’s ruling that the records are confidential under RSA 169-B:35 (Supp.
2018).
According to the AGO, in 2017, an incident involving several minors
occurred in Claremont. The AGO, the United States Attorney’s Office, the
Federal Bureau of Investigation, and the Claremont Police Department jointly
investigated the incident. Subsequently, the Sullivan County Attorney filed
delinquency petitions in the circuit court against one of the juveniles.
The AGO, thereafter, sought court authorization “to disclose the details
of its investigation, its conclusions of fact and law, and the nature of the
Claremont Police Department’s delinquency charges and the disposition in [the]
delinquency matter.” As grounds for the request, the AGO cited “the intense
public interest in and scrutiny of its investigation.” The AGO asserted that the
evidence obtained during the investigation was not confidential under RSA
169-B:35 but, even if it were, “significant policy considerations” allowed
disclosure as long as the juvenile’s identity was protected.
Following a hearing, the trial court rejected the AGO’s argument that
RSA chapter 169-B does not apply to the AGO’s investigatory records. The
court stated that “RSA 169-B:35 provides that all case records relative to
delinquencies are confidential. Publication of information concerning a
juvenile case is strictly prohibited with few legislatively enacted exceptions.
None of those exceptions apply in this case.” The court further stated that
the courts, police departments, and prosecutors throughout the
state have always considered the investigative files of agencies
involved with juvenile delinquencies to be subject to the
confidentiality provisions of RSA 169-B. To find otherwise would
render the confidentiality requirements of the statute meaningless.
Little would be gained from closing court records to the public
while allowing prosecutorial agencies to discuss and disclose their
findings and records with the press or to publicly release those
records.
The court found, however, that “a limited release of information would, in
fact, assist” in the juvenile’s rehabilitation and, accordingly, it granted the
AGO’s request to “release information contained in [the AGO’s] investigative
reports as well as its investigative conclusion.” The court also authorized the
AGO “to acknowledge that a delinquency case has been opened . . . and a
Dispositional Order adopted” and that the court “will continue to exercise
jurisdiction over this juvenile as [the juvenile] complies with Dispositional
Orders and engages in . . . rehabilitative services.” The court ordered that
“[p]rior to the release of any information or media statements, the Attorney
General’s Office shall provide counsel for the juvenile with a copy of the
documents it intends to release” as well as providing a copy to the court.
Accordingly, the AGO submitted to the trial court a 25-page draft report
that protected the confidentiality of the victim and the witnesses and
2
documented: (1) the scope of its investigation; (2) the facts it found during its
investigation; and (3) its conclusions based on those facts. Following a
hearing, the court authorized the AGO to release the report as written. The
AGO, thereafter, renewed its request to release its underlying investigative
records — approximately 400 pages consisting of, among other things,
transcripts of interviews conducted by the child advocacy center, the AGO, and
the Claremont Police Department; Claremont Police Department documents;
and medical records. The trial court denied the motion, and this appeal
followed.
On appeal, the State argues that the trial court erred in denying the
AGO’s request to release its underlying investigative materials because: (1) they
do not constitute “case” or “court” records within the meaning of RSA 169-
B:35; and (2) even if the confidentiality provisions of RSA 169-B:35 apply to
them, the court interpreted the statute “too broadly” in denying the AGO’s
request to release redacted records that contain “factual information about a
matter of public import.”
Resolving these issues requires us to interpret the relevant statutory
provisions. We review the trial court’s statutory interpretation de novo. In re
Kirsten P., 158 N.H. 158, 160 (2008). In matters of statutory interpretation, we
are the final arbiter of the legislature’s intent as expressed in the words of the
statute considered as a whole. Id. When examining the language of the
statute, we ascribe the plain and ordinary meaning to the words used. Id. We
interpret legislative intent from the statute as written and will not consider
what the legislature might have said or add language that the legislature did
not see fit to include. Id. We consider the words and phrases of the statute
within the context of the statute as a whole. In re D.B., 164 N.H. 46, 48
(2012).
Our goal is to apply statutes in light of the legislature’s intent in enacting
them, and in light of the policy sought to be advanced by the entire statutory
scheme. In re Ryan D., 146 N.H. 644, 646 (2001). When interpreting several
statutory provisions that involve the same subject matter, the provisions must
be construed together so that they lead to a logical result reflective of the
legislative purpose of the statutes. Id.
RSA chapter 169-B governs court proceedings involving delinquent
juveniles. The chapter is to be “liberally interpreted, construed and
administered to effectuate” the stated purposes and policies, including
encouraging “the wholesome moral, mental, emotional, and physical
development of each minor coming within the provisions of [the] chapter, by
providing the protection, care, treatment, counselling, supervision, and
rehabilitative resources which such minor needs.” RSA 169-B:1, I (2014). In
enacting RSA chapter 169-B, “[t]he primary purpose of the Legislature was to
shield children under eighteen from the environment surrounding adult
3
offenders and inherent in the ordinary criminal processes.” State v. Smith, 124
N.H. 509, 512-13 (1984) (quotation omitted). “As an incident of the
accomplishment of this purpose, proceedings involving children under eighteen
are so conducted as to prevent attachment of the stigma of a criminal by
reason of conduct resulting from immature judgment.” Id. at 513 (quotation
omitted).
Recognizing the inherent differences between children and adults, the
legislature “has provided for special treatment of juveniles under the juvenile
justice statute.” State v. Benoit, 126 N.H. 6, 12 (1985). The legislative purpose
sought to be accomplished by the juvenile laws is “not penal, but protective. It
is not that the child shall be punished for breach of a law or regulation, but
that he shall have a better chance to become a worthy citizen.” In re Pelham,
104 N.H. 276, 276 (1962) (quotation omitted).
Thus, “[a]ll juvenile cases shall be heard separately from the trial of
criminal cases, and such hearing shall be held wherever possible in rooms not
used for such trials,” and “[o]nly such persons as the parties, their witnesses,
their counsel, the victim, a victim witness advocate or other person chosen by
the victim, the county attorney, the attorney general and the representatives of
the agencies present to perform their official duties shall be admitted.” RSA
169-B:34, I(a) (2014); see also RSA 169-B:19, III-c(a), (e) (2014) (providing that
the confidentiality provisions of the statute apply to a de novo jury trial). RSA
chapter 169-B restricts the information regarding the juvenile that “shall be
disclosed to the victim, and may be disclosed to the victim’s immediate family”
by a law enforcement agency or the prosecution. RSA 169-B:34, III (2014). It
is a misdemeanor for “a victim or any member of the victim’s immediate family
to disclose any confidential information to any person not authorized or
entitled to access such confidential information.” RSA 169-B:34, IV (2014).
In addition, RSA chapter 169-B restricts access to juvenile “case” and
“court” records. RSA 169-B:35, I, II. Upon the filing of any petition alleging the
delinquency of a minor, the court must serve the department of health and
human services with a copy of the petition, and the department must be a
party to, and receive notice of, all proceedings. See RSA 169-B:6-a, :6, I (2014).
With the exception of specific persons or entities identified in the statute or
order of the court, the “case records” of the department created in connection
with cases brought under RSA chapter 169-B are confidential. RSA 170-G:8-a
(Supp. 2018). With limited statutory exceptions, it is a misdemeanor for “any
person entrusted with information from case records to disclose such records
or information contained in them” or for “any person who receives case records
or the information contained in them from a parent or a child to disclose such
records or information.” RSA 170-G:8-a, V.
Pursuant to RSA 169-B:35, I, “case” records refer to the records
described in RSA 170-G:8-a, relative to delinquency. RSA 170-G:8-a “case
4
records” are records “created by the department of health and human services.”
It is undisputed that the AGO’s underlying investigative materials were not
created by the department of health and human services and, therefore, do not
constitute “case records” as defined in the statute.
With the exception of cases where a minor is charged with a violent
crime, RSA 169-B:36, II (2014), “court records” of juvenile delinquency
proceedings “shall be kept in books and files separate from all other court
records,” and such records “shall be withheld from public inspection” unless
they fall within limited exceptions set forth in the statute. RSA 169-B:35, II.
“Additional access to court records may be granted by court order or upon the
written consent of the minor.” Id. “Once a delinquent reaches 21 years of age,
all court records and individual institutional records, including police records,
shall be closed and placed in an inactive file.” Id. However, “[p]olice officers
and prosecutors involved in the investigation and prosecution of criminal acts
shall be authorized to access police records concerning juvenile delinquency
. . . and to utilize for the purposes of investigation and prosecution of criminal
cases police investigative files on acts of juvenile delinquency.” RSA 169-B:35,
III(a). In addition, “[p]rosecutors involved in the prosecution of criminal acts
shall be authorized to access police records concerning juvenile delinquency or
records of adjudications of delinquency,” but may not disclose the existence of
an adjudication for juvenile delinquency unless disclosure is “constitutionally
required or after the court having jurisdiction over the criminal prosecution
orders its disclosure.” RSA 169-B:35, III(b). With a limited statutory exception,
any person who discloses court records “or any part thereof to persons other
than those persons entitled to access” under the statute, shall be guilty of a
misdemeanor. RSA 169-B:36, I (2014); see RSA 169-B:36, II.
The State argues that, although the statute does not provide a “specific
definition” of court records, “[i]nterpreted in the context of the entire statutory
provision, the language of RSA 169-B:35, II reveals that the legislature
intended to maintain confidentiality only over records in the court files of the
actual juvenile proceeding, meaning records concerning the adjudication of
juvenile delinquency cases, which is the subject of RSA 169-B.” According to
the State, “that definition makes sense” because “very rarely would
investigations of crimes involving juveniles occur outside of the juvenile
delinquency proceedings themselves.” Further, the State argues, its
investigatory records are not court files because the investigation by the AGO
occurred before the juvenile proceedings, and the AGO’s records were
presented to the court “only to give the family court context for the AGO’s
motions to release the investigative records.” Although the State acknowledges
that the AGO’s investigative records include Claremont Police Department
reports that “arguably” fall within the confidentiality provisions of the statute,
it asserts that “[t]he statute allows use of police records for purposes outside of
delinquency proceedings, . . . and imposes no confidentiality upon them once
released.”
5
As set forth above, RSA chapter 169-B establishes special, largely non-
public, procedures for juveniles and authorizes broad restrictions on access to
juvenile case and court records. The importance the legislature attaches to the
confidentiality of juvenile records is reflected in the fact that disclosure of
records in violation of RSA chapter 169-B is a crime. Although the chapter
does not expressly define what is encompassed within the meaning of court
records, we construe the statute liberally to effect its purpose of rehabilitating
delinquent minors by shielding them “from the environment surrounding adult
offenders and inherent in the ordinary criminal processes.” State v. Smith, 124
N.H. at 512-13 (quotation omitted); see RSA 169-B:1 (2014). Thus, it is
reasonable to conclude that the legislature intended that investigative records
compiled by the AGO concerning a juvenile subject to the provisions of RSA
chapter 169-B be confidential. Indeed, as the AGO acknowledged in its
motions before the trial court, “the information gathered over the course of the
Attorney General’s investigation is relevant to . . . and likely will become part of
any court records,” and “[m]any of the facts obtained during the Attorney
General’s investigation of the . . . matter—facts which include those in the
Claremont Police Department’s investigation of the same incident—form the
basis for the prosecution of [the juvenile] that is now before” the court.
The State also argues that confidentiality for purposes of RSA 169-B:35
is limited “only to those aspects of the records that might reveal” the juvenile’s
identity, and that the trial court “took confidentiality beyond its statutory
purpose . . . to encroachment upon the public’s interest in knowing about facts
and events of public import.” According to the State, “the legislature has
expressed its desire for government transparency in the form of RSA 91-A,
which sets forth a simple process through which citizens can obtain all manner
of governmental and public records,” and that the Right-To-Know Law, along
with Part I, Article 8 of the New Hampshire Constitution, evidence “a strong
public interest in the release of as much information as possible to the public,
including the AGO’s investigative records that provide the factual explanation
for [its] conclusions.” The State acknowledges, nonetheless, that “this is not a
Petition pursuant to RSA 91-A.”
The State’s justification for the release of its investigative records is
framed in terms of the public’s right to “an accounting of the basis for the
AGO’s conclusions in a matter involving important social justice issues and the
public’s skepticism of government’s willingness and ability to deal competently
with those issues.” The State asserts that “[r]elease of the AGO Report but not
the records will make the report itself appear non-transparent and undermine
public confidence in the AGO’s investigation and conclusions.” The legislature
has, however, determined that confidentiality to juvenile proceedings and
records prevails over the right of public access to such information. The AGO’s
request was made in the context of a juvenile delinquency proceeding brought
under RSA chapter 169-B. Accordingly, the circuit court correctly framed the
analysis by balancing any release of information with the best interests of the
6
juvenile, determining that “[i]f no information is released to the public, the false
narrative that currently exists will continue to be the only information that the
public has access to,” and because that “false narrative continues to haunt the
juvenile in this case,” a release of information “may, in fact, help in [the
juvenile’s] rehabilitation.”
We conclude that the trial court did not err in determining that the
AGO’s investigatory records in this case are subject to the confidentiality
provisions contained in RSA chapter 169-B that govern access to proceedings
and records involving delinquent juveniles. It is within the trial court’s
discretion to grant access to such records. See RSA 169-B:35, II. If any party,
in light of this opinion, believes specific records should be released, the party
may file a motion identifying said records and the reasons why they should be
released for the trial court’s review.
Affirmed.
LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.
7