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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2021-0146
PETITION OF THE STATE OF NEW HAMPSHIRE
Argued: October 21, 2021
Opinion Issued: February 4, 2022
John M. Formella, attorney general (Elizabeth Velez, attorney, on the
brief, and Samuel R.V. Garland, assistant attorney general, orally), for the
State.
American Civil Liberties Union of New Hampshire Foundation, of
Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief,
and Henry R. Klementowicz orally); R. Peter Decato, of Lebanon, on the joint
brief; Albert E. Scherr, of Concord, on the joint brief; and Wadleigh, Starr &
Peters, of Manchester (Robin D. Melone on the joint brief), for defendant Jeffrey
Hallock-Saucier.
Law Office of Carl D. Olson, of Londonderry (Carl D. Olson, on the joint
brief), for defendant Nicholas Fuchs.
Alexander J. Vitale, New Hampshire public defender, of Concord, on the
joint brief, for defendant Jacob Johnson.
HICKS, J. The State filed a petition for original jurisdiction, see Sup. Ct.
R. 11, seeking certiorari review of a decision of the Superior Court (Schulman,
J.) denying the State’s motions for protective orders in separate cases against
the defendants, Nicholas Fuchs, Jacob Johnson, and Jeffrey Hallock-Saucier.
We reverse and remand.
The following facts were recited in the trial court’s order or relate the
contents of documents in the record. This petition for original jurisdiction
arises out of three separate criminal cases, each against one of the defendants.
In each case, the State determined that it was required to provide the
defendant with information from one or more police officer’s personnel files
because the information was potentially exculpatory. See State v. Laurie, 139
N.H. 325, 330 (1995); Brady v. Maryland, 373 U.S. 83, 87 (1963). Citing the
court’s authority under New Hampshire Rule of Criminal Procedure 12(b)(8),
the State filed a motion for a protective order of discovery materials in each
case, seeking an order that would prohibit “Defense Counsel . . . from sharing
or further disseminating these confidential documents and the confidential
information contained therein with anyone other than Defense Counsel’s staff
and the Defendant.” Counsel for each defendant assented to the proposed
protective order appended to the State’s motion although, after the court
denied those motions, Johnson filed a notice that “he no longer assents to the
State’s motions for protective orders.”
In the cases against Fuchs and Johnson, the court denied the motions,
by margin order, without prejudice. In each case, the court opined that the
material may constitute public records subject to disclosure under the Right-
to-Know Law, see RSA chapter 91-A (2013 & Supp. 2021), unless, for specific
or particularized reasons, their disclosure would result in an invasion of
privacy. The court implicitly invited the State to make such a particularized
showing. In both cases, the State moved for reconsideration.
In the case against Hallock-Saucier, the court denied the motion by
margin order, referencing a “separate narrative order to be issued within the
day.” In that subsequent order, the court denied the State’s: (1) motion for a
protective order in the case against Hallock-Saucier; (2) motions for
reconsideration in the cases against Fuchs and Johnson; and (3) motions to
seal and associated motions for reconsideration in all three cases.
Acknowledging that it had the authority to supervise discovery in criminal
cases by issuing protective orders, the court explained that it would not,
however, “ordinarily issue a protective order that gags the parties and counsel
from sharing what is otherwise available to the general public upon demand.”
“Thus,” the court elaborated, “if the State provides discovery of documents that
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are subject to mandatory public disclosure under the Right to Know statute,
RSA 91-A:4, a protective order is inappropriate.”
The court observed sua sponte that the legal landscape regarding the
Right-to-Know Law had recently changed with our overruling of Union Leader
v. Fenniman, 136 N.H. 624 (1993), overruled by Seacoast Newspapers v. City of
Portsmouth, 173 N.H. 325, 337 (2020), and our decision in Union Leader Corp.
v. Town of Salem, 173 N.H. 345, 357 (2020). The court observed that while
“Fenniman did not actually require the issuance of protective orders,” it
“fostered a culture of confidentiality with respect to internal police misconduct
and discipline records.” It then noted that our decision in Union Leader Corp.
“did away with the categorical approach taken by Fenniman and replaced it
with a fact-specific balancing test” that “requires the court to determine
whether the release of . . . records [relating to police internal personnel
practices and officer discipline] would constitute an invasion of privacy.” The
court invited the State “to make a fact-specific case that public disclosure of
the information would result in an invasion of privacy,” but stated that it would
“not issue gag orders in blank.” The court also considered the State’s reliance
on RSA 105:13-b to be “misplaced.” See RSA 105:13-b (2013).
The trial court subsequently stayed the proceedings in each case to allow
the State to seek review in this court, accepted redacted copies of prior
pleadings, and denied the State’s motion to reconsider in the case against
Hallock-Saucier. The State then filed its petition for original jurisdiction with
this court, which we accepted. Thereafter, the State withdrew its request for
review of the trial court’s denials of the State’s motions to seal. Accordingly,
only the trial court’s rulings on the protective orders are now at issue.
“Certiorari is an extraordinary remedy that is not granted as a matter of
right, but rather at the court’s discretion.” Petition of N.H. Div. of State Police,
174 N.H. 176, 180 (2021). “Our review of the trial court’s decision on a petition
for writ of certiorari entails examining whether the court acted illegally with
respect to jurisdiction, authority or observance of the law, or unsustainably
exercised its discretion or acted arbitrarily, unreasonably, or capriciously.” Id.
Generally, we “review trial court decisions regarding discovery
management and related issues deferentially under our unsustainable exercise
of discretion standard.” Id. at 184 (quotation omitted). When “the court’s
ruling is based on its construction of a statute,” however, “our review
is de novo.” Id. (quotations omitted).
The State first argues that the trial court erred in concluding that police
personnel file information is not confidential once it is disclosed to a defendant
under RSA 105:13-b. In requesting that the trial court grant the protective
orders at issue, the State contended that they were “necessary to ensure the
confidentiality of the law enforcement officer[s’] personnel records while
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meeting the State’s competing interest in providing potentially exculpatory
evidence in a criminal matter.” The State cited RSA 105:13-b as authority for
the confidentiality of police personnel files. The trial court disagreed,
concluding that nothing in that statute “suggests that . . . exculpatory
evidence, once disclosed, must be kept confidential.” The State now contends
that the trial court’s interpretation of RSA 105:13-b is “erroneous because it
overlooks the statute’s plain language, statutory purpose, and disregards the
context of the statute as a whole.”
When engaging in statutory interpretation, we discern “the intent of the
legislature as expressed in the words of the statute considered as a whole.”
Petition of N.H. Div. of State Police, 174 N.H. at 184. “We first look to the
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning.” 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 construe
all parts of a statute together to effectuate its overall purpose and avoid an
absurd or unjust result.” Id. “Moreover, we do not consider words and
phrases in isolation, but rather within the context of the statute as a whole,
which enables us to better discern the legislature’s intent and to interpret
statutory language in light of the policy or purpose sought to be advanced by
the statutory scheme.” Id.
RSA 105:13-b provides:
Confidentiality of Personnel Files.
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
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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.
RSA 105:13-b.
The State argues that RSA 105:13-b’s plain language “makes police
personnel files broadly confidential with limited exceptions to protect a
defendant’s constitutional rights to discovery.” The defendants, on the other
hand, agree with the trial court that nothing in the text of the statute “requires
confidentiality of exculpatory evidence.” Rather, the defendants argue, “the
text of the statute is clear that only the remainder of a police officer’s personnel
file—that which is not produced to the defense—is to remain confidential in the
criminal case.”
The defendants’ construction focuses on the statute’s final sentence and,
in particular, the word “remainder.” We decline to adopt their interpretation
because it fails to place that sentence within the context of the statute as a
whole. See Petition of N.H. Div. of State Police, 174 N.H. at 184. Their
interpretation likewise fails to consider “the policy or purpose sought to be
advanced by the statutory scheme.” Id.
In Duchesne v. Hillsborough County Attorney, 167 N.H. 774 (2015), we
recognized the link between RSA 105:13-b and the prosecutor’s duty of
disclosure under Brady and Laurie: “Although the prosecutorial duty . . . is of
constitutional magnitude, the legislature has enacted a statute, RSA 105:13–b,
which is designed to balance the rights of criminal defendants against the
countervailing interests of the police and the public in the confidentiality of
officer personnel records.” Duchesne, 167 N.H. at 780. In so doing, we tacitly
acknowledged the general confidentiality of police personnel records, which
then yields to the rights of criminal defendants under Brady and Laurie.
Similarly, in Gantert v. City of Rochester, 168 N.H. 640, 646 (2016), we cited
RSA 105:13-b for the proposition that “police personnel files are generally
confidential by statute.”
Even if, as the defendants argue, these statements are dicta in Duchesne
and Gantert, they are consistent with the statute’s language considered within
the context of the statute as a whole. See Petition of N.H. Div. of State Police,
174 N.H. at 184. We begin with the statute’s title: “Confidentiality of Personnel
Files.” RSA 105:13-b (bolding omitted). “While the title of a statute is not
conclusive of its interpretation, it provides significant indication of the
legislature’s intent in enacting the statute.” Garand v. Town of Exeter, 159
N.H. 136, 142 (2009) (quotation omitted). We conclude that the title evinces
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the legislature’s intent that police personnel files potentially subject to
disclosure under RSA 105:13-b start with a presumption of general
confidentiality.
Turning to RSA 105:13-b’s substantive provisions, we noted in Duchesne
that the statute “addresses three situations that may exist with respect to
police officers who appear as witnesses in criminal cases.” Duchesne, 167 N.H.
at 781. Under paragraph I, “[e]xculpatory 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.” RSA 105:13-b, I (emphases added). The
disclosure required under paragraph I is explicitly tied to a particular criminal
defendant in a particular criminal case. No further dissemination is either
required or permitted.
“[P]aragraph II covers situations in which there is uncertainty as to
whether evidence contained within police personnel files is, in fact,
exculpatory. It directs that, where such uncertainty exists, the evidence at
issue is to be submitted to the court for in camera review.” Duchesne, 167
N.H. at 781 (citation omitted); see RSA 105:13-b, II.
“Finally, paragraph III covers evidence that is non-exculpatory but may
nonetheless be relevant to a case in which an officer is a witness.” Duchesne,
167 N.H. at 782; see RSA 105:13-b, III. “[T]his 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.”
Duchesne, 167 N.H. at 782; see RSA 105:13-b, III. If the judge finds probable
cause, he or she is to review the file in camera to determine “whether it
contains evidence relevant to the criminal case.” RSA 105:13-b, III (emphasis
added). “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.” Id. (emphasis
added). Again, disclosure is tied to a particular criminal case and is for the
explicit purpose of “be[ing] used as evidence.” Id. No further dissemination or
other use is either required or permitted.
The final sentence states: “The remainder of the file shall be treated as
confidential and shall be returned to the police department employing the
officer.” RSA 105:13-b, III (emphasis added). Read in context, this sentence
merely states that material not required to be disclosed to the defendant
retains its general confidentiality and is to be returned to the employing police
department. Thus, read as a whole, the statute details the procedure for
turning over to a criminal defendant any exculpatory or relevant evidence
found in the personnel files of any police officer testifying in the criminal case
while maintaining the confidentiality of those files for all other purposes.
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The defendants argue, to the contrary, that RSA 105:13-b “mandates
disclosure of exculpatory information without conditions” and “does not require
confidentiality or that a protective order be issued for” such evidence. No such
mandate appears in the statute. See Petition of N.H. Div. of State Police, 174
N.H. at 184 (noting that we will not add language to a statute that the
legislature did not see fit to include). Moreover, the defendants fail to read the
statute as a whole. By starting with a presumption of confidentiality and then
directing limited disclosure to specific persons for specific purposes, the
legislature directed that for all other purposes, the information remains
generally confidential. See Gentry v. Warden, N. N.H. Correctional Facility, 163
N.H. 280, 282 (2012) (noting “[t]he familiar doctrine of expressio unius est
exclusio alterius (‘the mention of one thing excludes another’)”).
Support for the foregoing statutory interpretation includes a case
construing a California statute that, while different from RSA 105:13-b in many
respects, is also “intended to balance the need of criminal defendants to
relevant information and the legitimate concerns for confidentiality of police
personnel records.” Alford v. Superior Ct., 107 Cal. Rptr. 2d 245, 255 (Ct. App.
2001) (quotation omitted), rev’d on other grounds, 63 P.3d 228 (Cal. 2003).
Unlike RSA 105:13-b, the California statute explicitly imposes upon courts
“both broad discretionary and mandatory duties to issue a protective order in
any particular case.” Id. at 262. Nevertheless, in interpreting the scope of
those duties, the California Court of Appeal employed reasoning that we find
persuasive.
The provision construed in Alford requires a court “to order that the
disclosed material ‘not be used for any purpose other than a court proceeding
pursuant to applicable law.’” Id. at 259 (quoting pertinent provision of the
California Evidence Code). The court rejected the defendants’ contentions that
“the lack of language in such subdivision limiting use of the material to the
specific court proceeding evidenced the Legislature’s intent not to impose a
case specific limit,” and that a protective order could not, for instance, “restrict
the use of disclosed Brady material from one public defender case to another.”
Id. at 252, 253 (footnote omitted). The court reasoned:
It has repeatedly been stressed that the protective order sections of
[the California Evidence Code] are part of an overall carefully
balanced statutory scheme that declares police officer personnel
records and any information obtained from such records
confidential unless ordered disclosed pursuant to a motion and in
camera hearing under [the California Evidence Code]. Under such
scheme, a defendant must convince a court that the information
sought is material to his or her defense. . . . Because the disclosure
of such information from police officer personnel records “[i]n any
case” is prohibited “except by discovery pursuant to . . . the
Evidence Code[,]” it would be illogical to interpret, as defendants
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would have us do, the phrase “other than a court proceeding
pursuant to applicable law” to mean that once information is
released to one defendant, the information is free to be shared with
any defendant and for use in any other court proceeding. To so
interpret would completely destroy the carefully crafted statutory
process by which [such] information is released.
Id. at 260 (citations omitted). Although the Supreme Court of California
reversed Alford on other grounds, it approved the interpretive reasoning that
we find instructive: “As the Court of Appeal reasoned, its interpretation of [the
California Evidence Code] harmonizes the entire statutory scheme and retains
its effectiveness by furthering the legitimate interests of both the defendant and
the peace officer.” Alford v. Superior Ct., 63 P.3d 228, 234 (Cal.
2003), disapproved on other grounds by Facebook v. Superior Ct. of San Diego,
471 P.3d 383, 392 n.6 (Cal. 2020).
Much like the California Court of Appeal in Alford, we conclude that
because material disclosed under RSA 105:13-b must first be determined to be
exculpatory or relevant in a particular criminal case, and then is to be
disclosed specifically to the defendant, to interpret the statute to allow
disclosure or use beyond the defendant in that particular case “would
completely destroy the carefully crafted statutory process by which
[such] information is released.” Alford, 107 Cal. Rptr. 2d at 260.
For all of the above reasons, we conclude that the trial court erred in its
interpretation of RSA 105:13-b. We also conclude that the trial court erred in
failing to find good cause for the issuance of protective orders in these cases.
See N.H. R. Crim. P. 12(b)(8) (“Upon a sufficient showing of good cause, the
court may at any time order that discovery required hereunder be denied,
restricted, or deferred, or make such other order as is appropriate.”). Given the
confidentiality accorded police personnel files by RSA 105:13-b, we hold that
the State has shown good cause, as a matter of law, for the issuance of
protective orders in the cases now before us.1
Finally, the defendants argue that “the issuance of the protective order[s]
under the circumstances presented in these three cases is unconstitutional
under the First Amendment to the United States Constitution and Part I,
Article 22 of the New Hampshire Constitution.” They contend that “the
proposed protective orders impermissibly act as a prior restraint on speech”
and “are unconstitutionally one-sided.”
1In light of this holding, we need not address the State’s contention that the trial court erred
when it sua sponte “reframed the assented-to criminal discovery motions as a [Right-to-Know
Law] case.”
8
We decline to address the merits of these constitutional arguments
because they were not presented to the trial court. See State v. Blackmer, 149
N.H. 47, 48 (2003) (noting that, generally, “we will not review any issue that the
defendant did not raise before the trial court.”) The trial court hypothesized
that “if the State provides discovery of documents that are subject to
mandatory public disclosure under the Right to Know statute, . . . [a protective]
order would be a prior restraint on speech relating to a matter of public
record.” (Citation omitted.) Such oblique references to constitutional concerns
are insufficient to trigger review. Nevertheless, we note that Seattle Times Co.
v. Rhinehart, 467 U.S. 20 (1984), and its progeny should guide the trial court
on remand and adequately address any First Amendment concerns.
In Seattle Times, the United States Supreme Court addressed “the issue
whether parties to civil litigation have a First Amendment right to disseminate,
in advance of trial, information gained through the pretrial discovery process.”
Id. at 22. The court specifically noted that discovery materials possess a
distinct characteristic relevant to a First Amendment analysis:
As in all civil litigation, petitioners gained the information they
wish to disseminate only by virtue of the trial court’s discovery
processes. As the Rules authorizing discovery were adopted by the
state legislature, the processes thereunder are a matter of
legislative grace. A litigant has no First Amendment right of access
to information made available only for purposes of trying his suit.
Thus, continued court control over the discovered information does
not raise the same specter of government censorship that such
control might suggest in other situations.
Id. at 32 (citation omitted). As summarized by the First Circuit Court of
Appeals, Seattle Times “held that the first amendment is not offended if three
criteria are met: (1) there is a showing of good cause as required by [Federal
Rule of Civil Procedure 26(c)]; (2) the restriction is limited to the discovery
context; and (3) the order does not restrict the dissemination of information
obtained from other sources.” Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st
Cir. 1986).
Although Seattle Times involved civil litigation, courts have applied it in
the criminal context by, in particular, substituting the good cause standard of
Federal Rule of Criminal Procedure 16(d) for that of Federal Rule of Civil
Procedure 26(c). See, e.g., United States v. Bulger, 283 F.R.D. 46, 51-52 (D.
Mass. 2012). As noted previously, New Hampshire Rule of Criminal Procedure
12(b)(8) also requires good cause for the issuance of a protective order and,
given the confidentiality accorded police personnel files by RSA 105:13-b, the
State has shown good cause, as a matter of law, for the issuance of protective
9
orders in the cases now before us. We remand for the trial court to issue the
requisite protective orders in these cases.
Reversed and remanded.
BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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