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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 2019-0279
NEW HAMPSHIRE CENTER FOR PUBLIC INTEREST JOURNALISM & a.
v.
NEW HAMPSHIRE DEPARTMENT OF JUSTICE
Argued: September 16, 2020
Opinion Issued: October 30, 2020
American Civil Liberties Union of New Hampshire, of Concord (Gilles R.
Bissonnette and Henry R. Klementowicz on the brief, and Mr. Bissonnette
orally), and Moir & Rabinowitz, PLLC, of Concord (James H. Moir on the brief),
for plaintiffs New Hampshire Center for Public Interest Journalism, The
Telegraph of Nashua, Newspapers of New England, Inc., Seacoast Newspapers,
Inc., Keene Publishing Corporation, and American Civil Liberties Union of New
Hampshire.
Malloy & Sullivan, Lawyers Professional Corporation, of Hingham,
Massachusetts (Gregory V. Sullivan on the brief and orally), and Douglas,
Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief), for
plaintiff Union Leader Corporation.
Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general,
on the brief and orally), for the New Hampshire Department of Justice.
Milner & Krupski, PLLC, of Concord (John S. Krupski on the
memorandum of law), for the New Hampshire Police Association and Matthew
Jajuga, as amici curiae.
Daniel M. Conley, of Goffstown, on the brief for the New Hampshire
Association of Chiefs of Police, as amicus curiae.
Brennan, Lenehan, Iacopino & Hickey, of Manchester (Jaye L. Rancourt
on the memorandum of law) for the New Hampshire Association of Criminal
Defense Lawyers, as amicus curiae.
HICKS, J. The New Hampshire Department of Justice (DOJ) appeals an
order of the Superior Court (Temple, J.) denying its motion to dismiss the
petition of the plaintiffs, New Hampshire Center for Public Interest Journalism,
The Telegraph of Nashua, Union Leader Corporation, Newspapers of New
England, Inc., Seacoast Newspapers, Inc., Keene Publishing Corporation, and
American Civil Liberties Union of New Hampshire, seeking a declaration that
the “Exculpatory Evidence Schedule” (EES), excluding the names of police
officers with pending requests to be removed from the list, must be made
public pursuant to the Right-to-Know Law, RSA chapter 91-A, and Part I,
Article 8 of the New Hampshire Constitution. In denying the motion to dismiss,
the trial court rejected the DOJ’s arguments that the EES is “confidential”
under RSA 105:13-b (2013) and that it is exempt from disclosure under the
Right-to-Know Law either because it is an “internal personnel practice” or a
“personnel file” under RSA 91-A:5, IV (2013). We uphold the trial court’s
determinations that the EES is neither “confidential” under RSA 105:13-b nor
exempt from disclosure under the Right-to-Know Law as an “internal personnel
practice” or a “personnel file.” Nonetheless, we vacate the trial court’s decision
and remand for it to determine, in the first instance, whether as the DOJ
contends, the EES constitutes an “other file[] whose disclosure would
constitute invasion of privacy.” RSA 91-A:5, IV.
I. Facts
The trial court recited the following facts. The DOJ currently maintains
a list of police officers who have engaged in misconduct reflecting negatively on
2
their credibility or trustworthiness. The list, formerly known as the “Laurie
List,” is now called the EES. See State v. Laurie, 139 N.H. 325, 327, 330, 333
(1995) (overturning a defendant’s murder conviction because the State failed to
disclose certain employment records of a testifying detective that “reflect[ed]
negatively on the detective’s character and credibility”). The EES is a
spreadsheet containing five columns of information: (1) officer’s name; (2)
department employing the officer; (3) date of incident; (4) date of notification;
and (5) category or type of behavior that resulted in the officer being placed on
the list. The DOJ asserts that the EES “offers no precise information as to the
specific conduct of any officer,” but rather “contains a succinct, often one-word
label capturing at a categorical level the behavior that placed the officer on the
EES.”
The EES does not physically reside in any specific police officer’s
personnel file. Rather, according to the DOJ, the EES “functions solely as a
reference point, to alert a prosecutor to the need to initiate an inquiry into
whether an officer’s actual personnel file might contain exculpatory evidence.”
The plaintiffs filed requests under the Right-to-Know Law for the most
recent version of the EES. The DOJ responded by providing a version of the
EES that redacted any personal identifying information of the officers on the
list. Some of the plaintiffs then requested an unredacted version of the EES
that would exclude information concerning officers with pending requests to be
removed from the EES. The DOJ denied those requests, and the plaintiffs
brought the instant petition seeking, among other things, a declaration that
“the unredacted EES list,” excluding officers who have “challenged their
placement on the EES list” or for whom there has not “been a sustained finding
of misconduct affecting the officer’s credibility or truthfulness,” is “a public
record that must be made public under RSA Chapter 91-A and Part I, Article 8
of the New Hampshire Constitution.”
The DOJ subsequently moved to dismiss the plaintiffs’ action on the
ground that they failed to state a legal basis for the relief sought. The DOJ
argued that disclosure of the EES is barred by RSA 105:13-b. Alternatively,
the DOJ maintained that the EES is exempt from disclosure under the Right-
to-Know Law, either because it relates to “internal personnel practices,” or
because it constitutes a “personnel” or “other file[] whose disclosure would
constitute invasion of privacy.” RSA 91-A:5, IV. The trial court denied the
motion. The parties subsequently stipulated that the trial court’s order
constituted a final decision on the merits in favor of the plaintiffs, and the trial
court so ordered. This appeal followed.
3
II. Analysis
A. Standards of Review
In reviewing a trial court’s ruling on a motion to dismiss, we consider
whether the allegations in the pleadings are reasonably susceptible of a
construction that would permit recovery. Weare Bible Baptist Church v. Fuller,
172 N.H. 721, 725 (2019). We assume the pleadings to be true and construe
all reasonable inferences in the light most favorable to the plaintiffs. Id. We
then engage in a threshold inquiry that tests the facts in the complaint against
the applicable law. Id. When the facts alleged by the plaintiffs are reasonably
susceptible of a construction that would permit recovery, we will uphold the
denial of a motion to dismiss. Id. at 725-26.
Resolving the issues in this appeal requires that we engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo.
Darbouze v. Champney, 160 N.H. 695, 697 (2010). We are the final arbiter of
the intent of the legislature as expressed in the words of the statute considered
as a whole. Id. We first examine the language of the statute, and, where
possible, we ascribe the plain and ordinary meanings to the words used. Id.
When the language of the statute is clear on its face, its meaning is not subject
to modification. Id. We will neither consider what the legislature might have
said nor add words that it did not see fit to include. Id.
We resolve questions regarding the Right-to-Know Law with a view to
providing the utmost information in order to best effectuate the law’s statutory
and constitutional objectives. N.H. Right to Life v. Dir., N.H. Charitable Trusts
Unit, 169 N.H. 95, 103 (2016). The purpose of the Right-to-Know Law “is to
ensure both the greatest possible public access to the actions, discussions and
records of all public bodies, and their accountability to the people.” RSA 91-
A:1 (2013). “Thus, the Right-to-Know Law furthers our state constitutional
requirement that the public’s right of access to governmental proceedings and
records shall not be unreasonably restricted.” N.H. Right to Life, 169 N.H. at
103 (quotation omitted); see also N.H. CONST. pt. I, art. 8. Accordingly, when
interpreting the Right-to-Know Law, we broadly construe provisions favoring
disclosure and interpret exemptions restrictively. N.H. Right to Life, 169 N.H.
at 103. We also look to the decisions of other jurisdictions interpreting similar
acts for guidance, including federal interpretations of the federal Freedom of
Information Act (FOIA). Id. “Such similar laws, because they are in pari
materia, are interpretatively helpful, especially in understanding the necessary
accommodation of the competing interests involved.” Id. (quotation omitted).
B. The Background of the EES
Before addressing the specific issues on appeal, we briefly discuss the
background and operation of the EES. See Duchesne v. Hillsborough County
4
Attorney, 167 N.H. 774, 777-80 (2015); Gantert v. City of Rochester, 168 N.H.
640, 645-47 (2016). As relevant here, prosecutors have a duty to disclose
exculpatory information and information that may be used to impeach the
State’s witnesses. Duchesne, 167 N.H. at 777; see Brady v. Maryland, 373
U.S. 83, 87 (1963); see also United States v. Bagley, 473 U.S. 667, 675 (1985).
The duty to disclose such information applies regardless of whether the
defendant requests it. Duchesne, 167 N.H. at 777. Moreover, the duty is not
satisfied merely because an individual prosecutor is unaware that exculpatory
information exists; rather, we impute knowledge among prosecutors in the
same office. Id. at 778. Accordingly, individual prosecutors have “a duty to
learn of any favorable evidence known to the others acting on the government’s
behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437
(1995); see Duchesne, 167 N.H. at 778.
After we granted the criminal defendant in Laurie a new trial due to the
prosecution’s failure to disclose information found in a police detective’s
employment files and records, see Laurie, 139 N.H. at 327, 330, 333, New
Hampshire law enforcement authorities began developing “Laurie Lists” to
share information about officer conduct with prosecutors. Gantert, 168 N.H. at
645. In 2004, the attorney general placed responsibility on county attorneys to
compile a confidential, comprehensive list of officers in each county who are
subject to possible Laurie disclosure. Id. at 645-46. In a 2004 memo to all
county attorneys and law enforcement agencies, the attorney general identified
categories of conduct that generally should be considered potential Laurie
material, and the memo required that such material be retained in an officer’s
personnel file, “so that it is available for in camera review by a court and
possible disclosure to a defendant in a criminal case.” Id. at 646 (quotation
omitted). The memo included a sample policy and procedure for police
departments to identify and retain Laurie material in their files. Id. Under that
procedure:
First, the deputy chief reviews all internal investigation files,
including investigations conducted by other police personnel, and
determines whether the incident involves any of the categories of
conduct identified as potential Laurie material. If so, the deputy
chief sends a memorandum to the chief, who reviews it and
determines whether the incident constitutes a Laurie issue. If it
does, the chief notifies the officer involved, who may request a
meeting with the chief to present facts or evidence. After the chief
makes a final decision, the chief notifies the county attorney if the
incident is ultimately determined to constitute a Laurie issue.
Id.
According to the DOJ, in early 2017, the attorney general updated the
“Laurie List” procedure and, for the first time, created the state-wide EES
5
maintained by the DOJ. The DOJ asserts that the process for putting a police
officer’s name on the list is “similar to the county Laurie lists, except that
names to be added to the EES come to the DOJ from police chiefs after review
of their officers’ personnel files.” The DOJ contends that only “sustained”
findings against an officer warrant placement on the EES, meaning that “the
evidence obtained during an investigation was sufficient to prove that the act
occurred.” (Quotations omitted). According to the DOJ, an officer may obtain
relief from a sustained finding through union grievance procedures,
arbitrations, or other appeals provided to police officers in collective bargaining
agreements. The DOJ maintains that it “has not publicly disclosed identifying
information on the EES, such as a name or information that might
inadvertently reveal an identity,” and that it has never deemed the former
county-level Laurie lists to be public documents.
C. RSA 105:13-b
The DOJ first argues that RSA 105:13-b precludes the disclosure of the
EES. RSA 105:13-b provides:
I. Exculpatory evidence in a police personnel file of a police
officer who is serving as a witness in any criminal case shall be
disclosed to the defendant. The duty to disclose exculpatory
evidence that should have been disclosed prior to trial under this
paragraph is an ongoing duty that extends beyond a finding of
guilt.
II. If a determination cannot be made as to whether evidence
is exculpatory, an in camera review by the court shall be required.
III. No personnel file of a police officer who is serving as a
witness or prosecutor in a criminal case shall be opened for the
purposes of obtaining or reviewing non-exculpatory evidence in
that criminal case, unless the sitting judge makes a specific ruling
that probable cause exists to believe that the file contains evidence
relevant to that criminal case. If the judge rules that probable
cause exists, the judge shall order the police department employing
the officer to deliver the file to the judge. The judge shall examine
the file in camera and make a determination as to whether it
contains evidence relevant to the criminal case. Only those
portions of the file which the judge determines to be relevant in the
case shall be released to be used as evidence in accordance with all
applicable rules regarding evidence in criminal cases. The
remainder of the file shall be treated as confidential and shall be
returned to the police department employing the officer.
6
RSA 105:13-b.
The DOJ reasons that the Right-to-Know Law grants every citizen “the
right to inspect all government records in the possession, custody, or control of
such public bodies . . . except as otherwise prohibited by statute,” RSA 91-A:4,
I (2013), and avers that RSA 105:13-b is “just such a statute.” According to
the DOJ, “RSA 105:13-b makes police personnel files strictly confidential with
two narrow exceptions,” the first requiring that exculpatory evidence in a
testifying officer’s personnel file be disclosed to a criminal defendant and the
second allowing non-exculpatory evidence in a testifying officer’s personnel file
to be disclosed to a criminal defendant under certain circumstances.
Otherwise, the DOJ maintains, police personnel files are “cloak[ed] . . . with the
maximum confidentiality that the United States and New Hampshire
Constitutions allow.” Although the DOJ concedes that “the EES itself does not
reside in any one police officer’s personnel file,” the DOJ maintains that the
“physical location of the EES in no way alters the fact that it contains
personnel information from the officer’s personnel file.”
For the purposes of this appeal, we assume without deciding that RSA
105:13-b constitutes an exception to the Right-to-Know Law and that it applies
outside of the context of a specific criminal case in which a police officer is
testifying. Nonetheless, we reject the DOJ’s overly broad interpretation of the
statute.
By its express terms, RSA 105:13-b pertains only to information
maintained in a police officer’s personnel file. RSA 105:13-b addresses three
situations involving the personnel files of police officers who appear as
witnesses in criminal cases. See Duchesne, 167 N.H. at 781. “First, insofar as
the personnel files of such officers contain exculpatory evidence, paragraph I
requires that such information be disclosed to the defendant.” Id. “Next,
paragraph II covers situations in which there is uncertainty as to whether
evidence contained within police personnel files is, in fact, exculpatory.” Id.
Paragraph II “directs that, where such uncertainty exists, the evidence at issue
is to be submitted to the court for in camera review.” Id. “Finally, paragraph
III covers evidence that is non-exculpatory but may nonetheless be relevant to
a case in which an officer is a witness.” Id. at 782. “Consistent with our case
law, this paragraph prohibits the opening of a police personnel file to examine
the same for non-exculpatory evidence unless the trial judge makes a specific
finding that probable cause exists to believe that the file contains evidence
relevant to the particular criminal case.” Id.
The express focus of RSA 105:13-b is on information maintained in the
personnel file of a specific police officer. Had the legislature intended RSA
105:13-b to apply more broadly to personnel information, regardless of where it
is maintained, it would have so stated. Darbouze, 160 N.H. at 697 (“We will
neither consider what the legislature might have said nor add words that it did
7
not see fit to include.” (quotation omitted)). As the DOJ concedes, “the EES
itself does not reside in any one police officer’s personnel file.” Therefore,
disclosure of the EES is not governed by RSA 105:13-b.
In arguing for a contrary result, the DOJ relies upon Worcester Telegram
& Gazette v. Chief of Police, 787 N.E.2d 602, 606 (Mass. App. Ct. 2003). Its
reliance is misplaced. In that case, a newspaper sought access to the contents
of a police department internal affairs file under the Massachusetts public
records law. Worcester Tel. & Gazette, 787 N.E.2d at 603-04. The issue was
whether the documents were exempt under a statutory exemption for
“personnel file or information.” Id. at 604 (quotation and brackets omitted). To
determine whether the documents were exempt, the court examined “the
nature or character of the documents,” rather than “their label.” Id. at 606
(quotations omitted).
The DOJ invites us to do the same, asserting that because the EES
“concerns officer misconduct” and “derives from disciplinary records within
police officer personnel files,” RSA 105:13-b governs. Given the plain meaning
of the language used in RSA 105:13-b, we cannot accept the DOJ’s invitation.
The court in Worcester Telegraph & Gazette was interpreting a statute with
broader language than RSA 105:13-b. There, the statute referred to “personnel
file or information.” Id. at 605 (quotation and brackets omitted; emphasis
added). By contrast, RSA 105:13-b refers only to a police officer’s “personnel
file” and the exculpatory or non-exculpatory evidence contained therein. RSA
105:13-b, I (concerning “[e]xculpatory evidence in a police personnel file”), III
(providing that the “personnel file of a police officer” shall not be opened “for
the purposes of obtaining or reviewing non-exculpatory evidence” except under
certain circumstances). RSA 105:13-b does not refer to personnel
“information” or “practices.”
We also decline the DOJ’s invitation to defer to its longstanding statutory
interpretation under the administrative gloss doctrine. The DOJ contends its
longstanding practice of keeping the EES confidential coupled with the
legislature’s “lack of . . . interference” with that practice “comprises
‘administrative gloss’ on the statute.” See New Hampshire Retail Grocers Ass’n
v. State Tax Comm’n, 113 N.H. 511, 514 (1973) (“It is a well-established
principle of statutory construction that a longstanding practical and plausible
interpretation given a statute of doubtful meaning by those responsible for its
implementation without any interference by the legislature is evidence that
such a construction conforms to the legislative intent.”). However, the
administrative gloss doctrine applies only when a statute is ambiguous. State
v. Priceline.com, Inc., 172 N.H. 28, 38 (2019). The reference to a police officer’s
“personnel file” is not ambiguous.
8
Nor is it doubtful whether the term “personnel file” applies to the EES.
An employee’s “personnel file” is a file that is “typically maintained in the
human resources office” of an employer, “otherwise known . . . as the
‘personnel department.’” Milner v. Department of Navy, 562 U.S. 562, 570
(2011). The EES is maintained by the DOJ, not by a police department’s
personnel office, and, as the DOJ concedes, the DOJ does not employ officers
on the EES. Accordingly, the EES is not a “personnel file” within the meaning
of RSA 105:13-b. See Reid v. N.H. Attorney Gen., 169 N.H. 509, 528 (2016)
(discussing the exemption under the Right-to-Know Law for “personnel
. . . files” (quotation omitted)); cf. Abbott v. Dallas Area Rapid Transit, 410
S.W.3d 876, 883-84 (Tex. App. 2013) (concluding that the exemption under the
Texas Public Information Act for “‘information in a personnel file’” did not apply
when there was no evidence that the investigation report of an employee’s
racial discrimination complaint was in the interviewees’ personnel files).
D. RSA 91-A:5, IV
The DOJ next argues that RSA 91-A:5, IV exempts the EES from
disclosure under the Right-to-Know Law. RSA 91-A:5, IV exempts from
disclosure
[r]ecords pertaining to internal personnel practices; confidential,
commercial, or financial information; test questions, scoring keys,
and other examination data used to administer a licensing
examination, examination for employment, or academic
examinations; and personnel, medical, welfare, library user,
videotape sale or rental, and other files whose disclosure would
constitute invasion of privacy.
RSA 91-A:5, IV. The DOJ asserts that the EES is exempt either because it is a
record pertaining to “internal personnel practices” or because it is a
“personnel” or “other file[] whose disclosure would constitute invasion of
privacy.” Id. We address each exemption in turn.
1. Internal Personnel Practices
Until recently, Fenniman had been our seminal case interpreting the
“internal personnel practices” exemption. Union Leader Corp. v. Fenniman,
136 N.H. 624 (1993), overruled by Seacoast Newspapers, Inc. v. City of
Portsmouth, 173 N.H. ___, ___ (decided May 29, 2020) (slip op. at 9) and Union
Leader Corp. v. Town of Salem, 173 N.H. ___, ___ (decided May 29, 2020) (slip
op. at 2). In that case, the plaintiff sought “memoranda and other records
compiled” during a police department’s internal investigation of a department
lieutenant who had been accused of making harassing phone calls. Fenniman,
136 N.H. at 625, 626. We broadly construed the “internal personnel practices”
exemption to apply to those records because “they document[ed] procedures
9
leading up to internal personnel discipline, a quintessential example of an
internal personnel practice.” Id. at 626 (quotation omitted). In addition, we
adopted a per se rule exempting such materials from disclosure. Id. at 627.
We recently overruled both aspects of Fenniman. See Seacoast
Newspapers, Inc., 173 N.H. at ___ (slip op. at 9); Union Leader Corp., 173 N.H.
at ___ (slip op. at 2). In Seacoast Newspapers, Inc., 173 N.H. at ___ (slip op. at
9), we overruled Fenniman to the extent that it broadly interpreted the “internal
personnel practices” exemption. We concluded that the “internal personnel
practices” exemption applies narrowly to records relating to the “internal rules
and practices governing an agency’s operations and employee relations,” and
does not apply to “information concerning the history or performance of a
particular employee.” Seacoast Newspapers, Inc., 173 N.H. at ____ (slip op. at
11). In Union Leader Corp., 173 N.H. at ___ (slip op. at 2, 11), we overruled
Fenniman to the extent that it decided that records related to that exemption
are categorically exempt from disclosure and are not subject to the balancing
test we have used for the other categories of records listed in RSA 91-A:5, IV.
See Prof’l Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H. 699, 707 (2010)
(setting forth a three-step analysis to determine whether disclosure will result
in an invasion of privacy).1
The DOJ argues that the EES pertains to an “internal personnel practice”
under Fenniman. The DOJ’s argument is unavailing given that we overruled
Fenniman. See Seacoast Newspapers, Inc., 173 N.H. at ___ (slip op. at 9).
Because the DOJ does not argue that the EES meets the narrow definition we
adopted in Seacoast Newspapers, Inc., we need go no further to reject the
DOJ’s “internal personnel practice” argument.
2. Personnel and Other Files
The trial court found that the EES is not a “personnel file” within the
meaning of RSA 91-A:5, IV. Having so found, the trial court concluded that it
“need not conduct a . . . balancing test to determine whether an invasion of
privacy would result from disclosure of the EES.” See Prof’l Firefighters of
N.H., 159 N.H. at 707. On appeal, the DOJ does not directly challenge the trial
court’s finding that the EES is not a “personnel file” under RSA 91-A:5, IV.
Instead, the DOJ presses its alternative argument that the EES constitutes an
1 Our well-established three-step analysis is as follows. First, we evaluate whether there is a
privacy interest at stake that would be invaded by the disclosure. Lambert v. Belknap County
Convention, 157 N.H. 375, 382 (2008). If no privacy interest is at stake, the Right-to-Know Law
mandates disclosure. Id. at 383. Second, we assess the public’s interest in disclosure. Id.
Disclosure of the requested information should inform the public about the conduct and activities
of their government. Id. If disclosing the information would not serve this purpose, disclosure is
not warranted. Id. Finally, we balance the public interest in disclosure against the government’s
interest in nondisclosure and the individual’s privacy interest in nondisclosure. Id.
10
“other file[] whose disclosure would constitute invasion of privacy.” RSA 91-
A:5, IV. The DOJ then asserts that, under our customary balancing test,
disclosure of the EES would constitute an invasion of privacy. See Prof’l
Firefighters of N.H., 159 N.H. at 707. The trial court, however, did not rule
upon the DOJ’s alternative argument, and we decline to do so in the first
instance. See Union Leader Corp., 173 N.H. at ___ (slip op. at 11). The parties
may litigate this issue on remand.2
Affirmed in part; vacated and
remanded.
HANTZ MARCONI and DONOVAN, JJ., concurred; ABRAMSON and
BROWN, JJ., retired superior court justices, specially assigned under RSA
490:3, concurred.
2 We observe that RSA 105:13-b was first enacted in 1992, before we decided Laurie, and,
therefore, before the “Laurie List” existed. See Laws 1992, 45:1. We further observe that were
Fenniman still in effect, the EES might be per se exempt from disclosure under the Right-to-Know
Law, see Fenniman, 136 N.H. at 625-26, and that Fenniman was overruled only months ago, see
Seacoast Newspapers, Inc., 173 N.H. at ___ (slip op. at 9); Union Leader Corp., 173 N.H. at ___
(slip op. at 2).
11