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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2022-0321
AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE
v.
NEW HAMPSHIRE DIVISION OF STATE POLICE
Argued: February 14, 2023
Opinion Issued: November 29, 2023
American Civil Liberties Union of New Hampshire, of Concord (Gilles R.
Bissonnette and Henry R. Klementowicz on the brief, and Gilles R. Bissonnette
orally), for the plaintiff.
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Jessica A. King, assistant attorney general, on the brief and orally), for
the defendant.
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown and
Michael G. Eaton on the brief), for Black Lives Matter Manchester, as amicus
curiae.
Malloy & Sullivan, Lawyers Professional Corporation, of Hingham,
Massachusetts (Kathleen C. Sullivan and Gregory V. Sullivan on the brief), for
Union Leader Corporation and New England First Amendment Coalition, as
amici curiae.
HICKS, J. The defendant, the New Hampshire Division of State Police
(the Division), appeals an order of the Superior Court (Kissinger, J.) granting
the relief sought in a complaint filed by the plaintiff, the American Civil
Liberties Union of New Hampshire (ACLU), for access to public records under
the Right-to-Know Law. See RSA ch. 91-A (2023). We affirm.
The following facts were recited in the trial court’s order or relate the
contents of documents in the record. In January 2022, the ACLU filed a Right-
to-Know Law complaint against the Division seeking access to records
concerning a former state trooper. The complaint alleges that the trooper had
been terminated in August 2021 and placed on the exculpatory evidence
schedule in September 2021. See Doe v. Attorney General, 175 N.H. 349, 351
n.1 (2022) (describing the exculpatory evidence schedule). It further alleges
that the trooper’s conduct had given rise to a federal civil rights lawsuit that
the Division paid $212,500 to settle on the trooper’s behalf.
According to the complaint, the ACLU submitted a Right-to-Know Law
request to the Division in August 2021, seeking “[a]ll reports, investigatory
files, personnel, and disciplinary records concerning [the former trooper] that
relate to any adverse employment action.” (Quotation omitted.) The complaint
alleges that the Division had “not produced the requested information” and,
apparently, “has no intention of doing so in the future.” The ACLU filed its
complaint seeking the same information.
The Division objected to disclosure, arguing that the requested records
are exempt from disclosure under RSA 105:13-b and that their disclosure
would constitute an invasion of privacy under RSA 91-A:5, IV. See RSA
105:13-b (2023); RSA 91-A:5, IV. The trial court granted the ACLU’s request
for disclosure and found the redactions proposed by the ACLU to be
appropriate. The court first found that “RSA 105:13-b does not categorically
prohibit disclosure of the records at issue in this case under RSA 91-A:4, I.”
Next, the court conducted the applicable three-step analysis to determine
whether disclosure of the requested records would constitute an invasion of
privacy under RSA 91-A:5, IV, and concluded that the Division “failed to carry
its heavy burden to shift the balance in favor of nondisclosure with respect to
the records at issue.” See Union Leader Corp. v. Town of Salem, 173 N.H. 345,
355 (2020) (describing the three-step analysis); Reid v. N.H. Attorney Gen., 169
N.H. 509, 527-29 (2016) (explaining the scope of the protected privacy interests
and the proper focus of the public interest).
2
On appeal, the Division challenges only the trial court’s ruling that RSA
105:13-b does not exempt the police personnel files at issue from disclosure
pursuant to RSA 91-A:4, I. Accordingly, “[r]esolution of this case requires us to
interpret several statutory provisions, including certain provisions of the Right-
to-Know Law.” Grafton County Attorney’s Office v. Canner, 169 N.H. 319, 322
(2016). “The ordinary rules of statutory construction apply to our review of the
Right-to-Know Law.” Id. (quotation omitted). “When examining the language of
a 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 also interpret a statute in the context of the
overall statutory scheme and not in isolation.” 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. Finally, we “will consider legislative history only if the statutory
language is ambiguous.” Reid, 169 N.H. at 522. Because the statutory
language at issue here is unambiguous, we reach our interpretation using “the
plain meaning of the words used.” Id.
The Right-to-Know Law provision at issue is RSA 91-A:4, I, which
provides, in relevant part:
Every citizen during the regular or business hours of all public
bodies or agencies, and on the regular business premises of such
public bodies or agencies, has the right to inspect all governmental
records in the possession, custody, or control of such public bodies
or agencies, including minutes of meetings of the public bodies,
and to copy and make memoranda or abstracts of the records or
minutes so inspected, except as otherwise prohibited by statute or
RSA 91-A:5.
RSA 91-A:4, I (emphasis added). The Division asserts that “RSA 105:13-b is a
statute that ‘otherwise prohibit[s]’ disclosure of government records pursuant
to RSA 91-A:4, I.” It contends that such records are therefore “categorically
exempt from RSA chapter 91-A.” For the reasons that follow, we disagree.
RSA 105:13-b, entitled “Confidentiality of Personnel Files,” 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.
3
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.
RSA 105:13-b.
We have recognized that RSA 105:13-b is linked to the prosecutor’s duty
of disclosure under Brady v. Maryland, 373 U.S. 83, 87 (1963), and State v.
Laurie, 139 N.H. 325, 330 (1995). See Petition of State of N.H. (State v. Fuchs),
174 N.H. 785, 791 (2022).1 In Petition of State (Fuchs), we concluded that
“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.” Petition of State (Fuchs),
174 N.H. at 793.
Relying on Petition of State (Fuchs), the Division argues:
[T]he statute prohibits public disclosure of police personnel files to the
maximum extent permitted by the United States and New Hampshire
Constitutions. RSA 105:13-b mandates the transfer of certain, otherwise
confidential personnel information solely for the critical purpose of
delivering to criminal defendants the most robust realization of their
constitutional right to exculpatory or relevant evidence in a criminal
matter. For all other reasons, the police personnel files remain closed to
the public.
1 The dissent misreads our decision in Petition of State of N.H. (State v. Fuchs), 174 N.H. 785
(2022). In no respect does this case overrule or diminish its holding.
4
The Division’s argument, however, reads into RSA 105:13-b a reference
to “public disclosure” that simply is not there. In Petition of State (Fuchs), we
emphasized that “[t]he disclosure required under paragraph I is explicitly tied
to a particular criminal defendant in a particular criminal case” and that
disclosure under paragraph III is similarly “tied to a particular criminal case
and is for the explicit purpose of being used as evidence.” Id. at 792 (emphases
added) (quotation and brackets omitted). Thus, we recognized the limited
context in which RSA 105:13-b operates: a specific criminal trial. Indeed, the
statute further limits its applicability to a criminal trial in which the police
officer whose personnel file is at issue “is serving as a witness” or “serving as a
. . . prosecutor.” RSA 105:13-b, I, III. The Division’s attempt to broaden RSA
105:13-b’s application to “public disclosure” violates our canon of statutory
construction that we “will not consider what the legislature might have said or
add language that the legislature did not see fit to include.” Grafton County
Attorney’s Office, 169 N.H. at 322.
The Division argues, however, that in Provenza v. Town of Canaan, 175
N.H. 121 (2022), we rejected the assertion that “RSA 105:13-b is limited to
solely criminal matters and is not applicable in the Right-to-Know context.”
The Division misreads Provenza. In Provenza, the plaintiff sought to bar
release under the Right-to-Know Law of “an investigative report commissioned
by the Town as a result of a motor vehicle stop in which he was involved while
still employed by the Town as a police officer.” Provenza, 175 N.H. at 123. The
plaintiff argued, in relevant part, “that RSA 105:13-b creates an exception to
the Right-to-Know Law that applies to the Report.” Id. at 128. We rejected
that argument, noting that “by its express terms, RSA 105:13-b pertains only
to information maintained in a police officer’s personnel file” and that the
plaintiff had not successfully challenged on appeal the trial court’s finding that
“there is nothing in the record to suggest that the Report is contained in or is a
part of [Provenza’s] personnel file.” Id. (quotations omitted).
Our holding in Provenza does not imply that if the Report had been
contained in Provenza’s personnel file, it would have been categorically exempt
from the Right-to-Know Law by virtue of RSA 105:13-b. We had no need to
reach that issue when, as we held, RSA 105:13-b, “by its express terms,” did
not apply to the requested report on the facts found by the trial court. Id. “We
decline to read into [Provenza] conclusions it did not reach.” United States v.
Segal, 644 F.3d 364, 367 (7th Cir. 2011) (rejecting defendant’s argument that a
United States Supreme Court case “held that ‘defraud,’ as used in the mail and
wire fraud statutes, means fraud as it was understood at common law,” when
the case “focused on and reached a conclusion as to only one element of fraud
at common law: materiality” and was silent as to the element defendant
claimed the case required).
Similarly, no precedent on the issue before us can be found in New
Hampshire Center for Public Interest Journalism v. New Hampshire
5
Department of Justice, 173 N.H. 648, 656 (2020), in which, “[f]or the purposes
of th[at] appeal, we assume[d] 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.” N.H.
Ctr. for Pub. Interest Journalism, 173 N.H. at 656. Moreover, in Doe v.
Attorney General, decided after New Hampshire Center for Public Interest
Journalism and Provenza, we reaffirmed that RSA 105:13-b operates within the
limited context of a specific criminal trial, concluding that “RSA 105:13-b, II
does not authorize the trial court to review the contents of an officer’s
personnel file outside the scope of a particular criminal case.” Doe, 175 N.H. at
354.
The Division further contends that “[t]he process outlined in [RSA
105:13-b] functionally prohibits the public from inspecting the records in police
personnel files by limiting inspection to certain, enumerated circumstances.” It
points to our statement in Petition of State (Fuchs) that “[n]o further
dissemination is either required or permitted,” Petition of State (Fuchs), 174
N.H. at 792, and asserts that our “case law recognizes that RSA 105:13-b
establishes a scheme in which police personnel records may not be disclosed
outside the [enumerated] narrow exceptions.”
Again, the Division reads meaning into operative language — here, from
an opinion of this court — that is not there. The quoted language from Petition
of State (Fuchs) means what it says and nothing more: “No further
dissemination is either required or permitted.” Petition of State (Fuchs), 174
N.H. at 792 (emphasis added). At issue in Petition of State (Fuchs) was
whether defendants who had received information under RSA 105:13-b were
entitled to thereafter disseminate that information to others, or whether the
State was entitled to the issuance of protective orders. See id. at 788. The
State had filed motions in the underlying cases seeking protective orders “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.’”
Id. In interpreting RSA 105:13-b to preclude further dissemination, we
reasoned:
[B]ecause 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.
Id. at 794 (emphasis added) (quotation and brackets omitted). Again, our focus
was on whether a defendant who had received information under RSA 105:13-b
6
could thereafter share that information with others. Our decision in Petition of
State (Fuchs) says nothing about whether information in a police personnel file
independently may be subject to disclosure under a different statute.
The Division next analogizes this case to CaremarkPCS Health v. New
Hampshire Department of Administrative Services, 167 N.H. 583 (2015), in
which we held that, under the facts of the case, the New Hampshire Uniform
Trade Secrets Act (UTSA) provided an exemption from disclosure pursuant to
RSA 91-A:4, I. CaremarkPCS Health, 167 N.H. at 590; see RSA ch. 350-B
(2022) (UTSA). Specifically, we noted that the UTSA “provides remedies for the
‘[a]ctual or threatened misappropriation’ of trade secrets,” which includes
“‘[d]isclosure or use of a trade secret of another without express or implied
consent by a person who . . . [a]t the time of disclosure or use, knew or had
reason to know that his knowledge of the trade secret was . . . acquired under
circumstances giving rise to a duty to maintain its secrecy or limit its use.’”
CaremarkPCS Health, 167 N.H. at 587, 588 (emphasis omitted) (quoting RSA
350-B:1, II(b), :2, I). We further noted that Caremark had “specifically marked
the designated information as confidential and proprietary,” that the contract
between Caremark and the New Hampshire Department of Administrative
Services (Department) imposed on both parties “a duty of confidentiality not to
disclose trade secrets,” and that “Caremark did not expressly or impliedly
consent to disclosure of the designated information.” Id. at 589. Accordingly,
we concluded that “because disclosure of the designated information by the
Department would be a misappropriation of Caremark’s trade secrets under
the UTSA, . . . disclosure of that information is ‘prohibited by statute’ under
RSA 91-A:4, I, and, therefore, we [held] that the designated information [was]
exempt from disclosure under RSA 91-A:4, I.” Id. at 590.
The Division argues that “[l]ike in Caremark where the UTSA prevented
the release of trade secrets, here, RSA 105:13-b prevents disclosure of police
personnel files except in limited, enumerated circumstances, pursuant to a
process manifestly different from and in conflict with the right of general public
inspection provided in RSA 91-A:4, I.” The Division’s reliance on CaremarkPCS
Health is unavailing, however, because there, the UTSA prohibited the
Department from releasing the information and thus the disclosure was
“otherwise prohibited by statute.” We specifically noted that “[t]he UTSA does
not prohibit the disclosure of trade secrets under all circumstances; rather, it
provides remedies for the ‘[a]ctual or threatened misappropriation’ of trade
secrets,” id. at 587 (quoting RSA 350-B:2, I), such that disclosure would be
contrary to law. RSA 105:13-b similarly does not prohibit disclosure, in all
instances, of information found in police personnel files and it does not further
regulate the information. Thus, it cannot provide a categorical exemption from
disclosure under RSA 91-A:4, I. And while we have interpreted RSA 105:13-b
to prohibit further dissemination of information obtained under its procedural
framework, the Division cannot avail itself of this prohibition, as it does not
hold the records as a result of obtaining them under the statute. Thus, while
7
the UTSA applied to the designated information in CaremarkPCS Health to
prohibit its disclosure by the Department, the same is not true with respect to
RSA 105:13-b and the Division in this case.
Finally, the Division contends that in light of the carefully-drafted
statutory framework under which police personnel file information may be
obtained under RSA 105:13-b, “disclosing such records pursuant to a public
records request would produce an absurd result.” It argues:
Parties in a criminal case could entirely circumvent the protections
afforded by statute and gain access to the records via a simple
public records request. The absurdity of this result, in which a
criminal defendant may have less right to access a police personnel
file within the context of his criminal case than as a member of the
public seeking the same documents under RSA 91-A, defies the
plain statutory language of RSA 105:13-b.
We disagree.
The Right-to-Know Law and RSA 105:13-b serve different purposes. RSA
105:13-b effectuates a criminal defendant’s State and Federal Constitutional
rights to disclosure of exculpatory evidence and also provides a procedure for
obtaining non-exculpatory evidence relevant to the defendant’s criminal case.
See RSA 105:13-b; Petition of State of N.H. (State v. Theodosopoulos), 153 N.H.
318, 321 (2006) (decided under prior statute) (noting distinction “between
exculpatory evidence that must be disclosed to the defendant under the State
and Federal Constitutions, and other information contained in a confidential
personnel file that may be obtained through the statutory procedure set forth
in RSA 105:13-b”). The purpose of the Right-to-Know Law, on the other hand,
“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.
We see no absurdity in the coexistence of different statutory frameworks
for seeking information in a police personnel file for different purposes.
Determining whether information will be disclosed will entail a different inquiry
under each framework and the material disclosed under each may not be
equivalent. A person seeking disclosure under the Right-to-Know Law would
likely be met with a claim of exemption for “personnel . . . files whose
disclosure would constitute invasion of privacy.” RSA 91-A:5, IV. In that case,
after making the requisite preliminary findings, a court would apply the
established three-step analysis, as the trial court did here, to determine
whether disclosure would constitute an invasion of privacy under RSA 91-A:5,
IV. See Reid, 169 N.H. at 527-29 (discussing analysis for determining whether
disclosure of a personnel file would constitute an invasion of privacy). First, in
determining the privacy interests, the court considers the articulated “public
8
interest in nondisclosure,” and whether disclosure would release personally
identifying information or subject an individual to embarrassment or
reputational harm. Id. at 529-31 (emphasis omitted). Second, the court
evaluates the strength of the public interest as tied to the purpose of the Right-
to-Know Law. Id. at 532. The material would be disclosed if, under the third
step of the analysis, “the public interest in disclosure” outweighs “the
government’s interest in nondisclosure and the individual’s privacy interest in
nondisclosure.” Union Leader Corp., 173 N.H. at 355; see Goode v. N.H.
Legislative Budget Assistant, 148 N.H. 551, 556, 558 (2002) (concluding trial
court erred in ruling that materials were exempt under RSA 91-A:5, IV where
“the public’s interest in disclosure outweighs the [defendant’s] interest in non-
disclosure”).
A defendant in a criminal case seeking material under RSA 105:13-b, on
the other hand, would obtain exculpatory evidence, and, upon making the
requisite probable cause showing, would obtain non-exculpatory evidence
relevant to his criminal case. See RSA 105:13-b. The material that would be
disclosed under each framework — material in which the public interest
outweighs the relevant privacy interests under the Right-to-Know Law and
material exculpatory and/or relevant to the defendant’s criminal case under
RSA 105:13-b — is tailored to the purposes of the respective law. That one
framework may trigger disclosure of certain material that the other does not —
or, as the Division frames it, that “a criminal defendant may have less right to
access a police personnel file within the context of his criminal case than as a
member of the public seeking the same documents under RSA 91-A” — is, to
us, a reflection of the different purposes served by each statutory scheme.
Should the legislature disagree with this court’s interpretations of
various applications of the exemptions set forth in RSA 91-A:5, IV, including, in
this case, our treatment of documents relating to any adverse employment
action with respect to the former officer, it may wish to clarify those aspects of
records pertaining to law enforcement officers that it intends to be categorically
exempt. See Provenza, 175 N.H. at 122-23 (investigative report on officer no
longer with department); Union Leader Corp., 173 N.H. at 348 (audit of police
department); Seacoast Newspapers v. City of Portsmouth, 173 N.H. 325, 329
(2020) (arbitration decision of police officer’s grievance); cf. Petition of State
(Fuchs), 174 N.H. at 788 (further disclosure of exculpatory evidence produced
in criminal trial).
9
Accordingly, for the foregoing reasons, we affirm the trial court’s ruling
that RSA 105:13-b does not prohibit disclosure of the records at issue.2
Affirmed.
HANTZ MARCONI and DONOVAN, JJ., concurred; ABRAMSON, J.,
retired superior court justice, specially assigned under RSA 490:3, concurred;
BASSETT, J., dissented.
BASSETT, J., dissenting. The defendant, the New Hampshire Division of
State Police (the Division), appeals an order of the Superior Court (Kissinger, J.)
granting the relief sought in a complaint filed by the plaintiff, the American
Civil Liberties Union of New Hampshire (ACLU), for access to records under the
Right-to-Know Law that concern a former state trooper. See RSA ch. 91-A
(2023). The majority affirms. I respectfully dissent.
The trial court granted ACLU’s request for disclosure, ruling that “RSA
105:13-b does not categorically prohibit disclosure of the records at issue in
this case under RSA 91-A:4, I.” On appeal, the Division challenges the trial
court’s ruling that RSA 105:13-b does not exempt the police personnel files at
issue from disclosure pursuant to RSA 91-A:4, I. Accordingly, “[r]esolution of
this case requires us to interpret several statutory provisions, including certain
provisions of the Right–to–Know Law.” Grafton County Attorney’s Office v.
Canner, 169 N.H. 319, 322 (2016).
The Right-to-Know Law provision at issue is RSA 91-A:4, I, which
provides, in relevant part:
Every citizen during the regular or business hours of all public
bodies or agencies, and on the regular business premises of such
public bodies or agencies, has the right to inspect all governmental
records in the possession, custody, or control of such public bodies
or agencies, including minutes of meetings of the public bodies,
and to copy and make memoranda or abstracts of the records or
minutes so inspected, except as otherwise prohibited by statute or
RSA 91-A:5.
RSA 91-A:4, I (emphasis added). The Division asserts that “RSA 105:13-b is a
statute that ‘otherwise prohibit[s]’ disclosure of government records pursuant
to RSA 91-A:4, I.” It contends that such records are therefore “categorically
2 To the extent the Division contends that the ACLU and amici have submitted materials that were
not in the record before the trial court, we reiterate that our decision is based solely on
interpretation of the applicable statutes and we have not considered the materials to which the
Division objects.
10
exempt from RSA chapter 91-A.”
RSA 105:13-b, entitled “Confidentiality of Personnel Files,” 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.
RSA 105:13-b (2023).
We have recognized that RSA 105:13-b is linked to the prosecutor’s duty
of disclosure under Brady v. Maryland, 373 U.S. 83, 87 (1963), and State v.
Laurie, 139 N.H. 325, 330 (1995). See Petition of State of N.H. (State v. Fuchs),
174 N.H. 785, 791 (2022). In Fuchs, we concluded that “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.” Id. at 793 (emphasis added). We
emphasized that when exculpatory evidence in a police personnel file is
disclosed to a criminal defendant under RSA 105:13-b, that disclosure “is
explicitly tied to a particular criminal defendant in a particular criminal case.
No further dissemination is either required or permitted.” Id. at 792 (emphasis
added). Thus, I agree with the Division that we have already answered the
question presented by this appeal — we stated in Fuchs that RSA 105:13-b
11
maintains the confidentiality of police personnel files for all purposes other
than fulfilling the prosecutor’s duty of turning over to a criminal defendant
exculpatory or relevant evidence. Id. at 793. In my view, “for all other
purposes” includes for purposes of the Right-to-Know Law.
The majority asserts that Fuchs emphasizes that the disclosure required
by RSA 105:13-b is tied to a particular criminal defendant in a particular
criminal case, and that RSA 105:13-b operates in the limited context of a
specific criminal trial. It then suggests that the Division is attempting to
“broaden RSA 105:13-b’s application to ‘public disclosure,’” which it contends
violates our canon of statutory construction that we will not consider what the
legislature might have said or add language that the legislature did not see fit
to include.
The majority’s analysis, however, supports the opposite conclusion. As
Fuchs explained, RSA 105:13-b is entitled “Confidentiality of Personnel Files.”
We concluded that the title evinced the legislature’s intent that police personnel
files potentially subject to disclosure under RSA 105:13-b “start with a
presumption of general confidentiality.” Id. at 792 (emphasis added). That the
disclosure required by the statute is tied to a particular criminal defendant in a
particular criminal case demonstrates the limited nature of the exception to the
general confidentiality of police personnel files. Other than disclosure
pursuant to that limited exception, RSA 105:13-b prohibits further
dissemination — “[n]o further dissemination is . . . permitted.” Id. By creating
an additional exception to RSA 105:13-b’s general confidentiality of police
personnel files, it is the majority that is considering what the legislature might
have said or adding language that the legislature did not see fit to include.
It might be argued that while RSA 105:13-b makes police personnel files
“confidential,” that by itself does not mean that disclosure is prohibited under
the Right-to-Know Law. RSA 91-A:4, I, provides for inspection of all
governmental records “except as otherwise prohibited by statute or RSA 91-
A:5.” RSA 91-A:5, IV provides an exemption for governmental records that are
“confidential,” but we have construed that exemption as requiring the use of a
balancing test to determine whether the disclosure of “confidential,
commercial, or financial” information results in an invasion of privacy. Union
Leader Corp. v. Town of Salem, 173 N.H. 345, 355 (2020).
That determination involves a three-step analysis. First, we evaluate
whether there is a privacy interest at stake that would be invaded by the
disclosure. Second, we assess the public’s interest in disclosure. Third,
we balance the public interest in disclosure against the government’s
interest in nondisclosure and the individual’s privacy interest in
nondisclosure. If no privacy interest is at stake, then the Right-to-Know
Law mandates disclosure. Further, whether information is exempt from
disclosure because it is private is judged by an objective standard and
12
not a party’s subjective expectations. Thus, determining whether the
exemption for “confidential, commercial, or financial information” applies
requires analysis of both whether the information sought is “confidential,
commercial, or financial information,” and whether disclosure would
constitute an invasion of privacy.
Id. (quotations, brackets, and citations omitted).
If RSA 105:13-b were to be construed as making police personnel files
“confidential” only in the limited sense that that term is used in the exemption
in RSA 91-A:5, IV, then it would follow that only those police personnel records
that the government is able to prove, using the three-part balancing test, result
in an invasion of privacy will be exempt — all other police personnel files will be
public documents available for disclosure under the Right-to-Know Law. See
CaremarkPCS Health v. N.H. Dep’t of Admin. Servs., 167 N.H. 583, 587 (2015)
(stating that the party seeking nondisclosure has the burden of proof). On the
other hand, if RSA 105:13-b is construed as prohibiting disclosure of police
personnel files other than as provided in RSA 105:13-b itself — that is, other
than in the limited case of disclosure to criminal defendants in furtherance of
the State’s obligations under Brady and Laurie — then RSA 105:13-b would fall
within the exception set forth in RSA 91-A:4, I, for records whose disclosure is
“otherwise prohibited by statute.”
This question is resolved by our decision in Fuchs. First, as noted above,
we specifically stated with respect to records disclosed to a defendant pursuant
to RSA 105:13-b that “[n]o further dissemination is . . . permitted.” Fuchs, 174
N.H. at 792. But more importantly, the result in Fuchs turned on this very
question. In Fuchs, the trial court construed RSA 105:13-b as does the
majority, yet we unanimously reversed its decision. By holding today that
police personnel files may be disclosed under the Right-to-Know Law, the
majority is overruling Fuchs, sub silentio, without undertaking a stare decisis
analysis.
In Fuchs, the State determined that it was required to provide three
defendants with information from the personnel files of one or more police
officers because the information was potentially exculpatory. Id. at 788. Citing
New Hampshire Rule of Criminal Procedure 12(b)(8)3, the State then moved for
protective orders that would prohibit defense counsel “from sharing or further
disseminating these confidential documents and the confidential information
3 New Hampshire Rule of Criminal Procedure 12(b)(8) provides, in pertinent part:
Protective and Modifying Orders. 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.
(Emphasis added.)
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contained therein with anyone other than Defense Counsel’s staff and the
Defendant.” Id. The trial court denied the motions, opining, as does the
majority in the case now before us, that the material could constitute public
records subject to disclosure under the Right-to-Know Law unless their
disclosure would result in an invasion of privacy. Id. at 788-89. The court
reasoned that if the documents provided by the State during discovery were
subject to mandatory public disclosure under the Right-to-Know Law, then a
protective order barring further dissemination of those public documents would
be inappropriate. Id. The court then invited the State to make the fact-specific
case necessary under the Right-to-Know Law showing that public disclosure of
the specific information at issue would result in an invasion of privacy,
explaining that it would not issue “gag orders” in blank, and that the State’s
reliance on RSA 105:13-b was “misplaced.” Id. at 789 (quotation omitted). The
State did not attempt to demonstrate that the specific records were exempt
from disclosure under RSA 91-A:5, IV — instead it filed a petition for original
jurisdiction in this court, seeking review of the rulings denying the requested
protective orders. Id.
We held that the trial court erred. “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.” Id. at 795 (emphasis added); see N.H. R. Crim. P. 12(b)(8) (requiring
showing of “good cause” to obtain protective order). We concluded that
material disclosed under RSA 105:13-b “is to be disclosed specifically to the
defendant,” and “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.’” Fuchs, 174
N.H. at 794 (brackets and quotation omitted). Significantly, we ruled that as a
matter of law the State had shown good cause to prevent further release of the
material disclosed under RSA 105:13-b despite the fact that the State had
declined the trial court’s invitation to demonstrate that the materials fell within
the exemption in RSA 91-A:5, IV for confidential information the public
disclosure of which would result in an invasion of privacy. In other words, we
ruled that good cause existed to prevent disclosure by the defendant of all
material covered by RSA 105:13-b — even material that would not be exempt
from disclosure under RSA 91-A:5, IV.
The holding in Fuchs cannot be reconciled with the majority’s ruling
today that police personnel records are subject to disclosure under the Right-
to-Know Law. In Fuchs, that is exactly what the trial court ruled — it ruled
that information from police personnel files “may constitute public records
subject to disclosure under the Right-to-Know Law . . . unless, for specific or
particularized reasons, their disclosure would result in an invasion of privacy.”
Id. at 788. Thus, in order for the State to show good cause for a protective
order preventing the defendants from disseminating such public records, the
trial court in Fuchs required the State to carry its heavy burden under the
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Right-to-Know Law of demonstrating that those public records were exempt
from disclosure under RSA 91-A:5, IV.4 As the trial court rightly indicated, if
the State provides discovery of documents subject to disclosure under the
Right-to-Know Law, “a protective order is inappropriate.” Id. at 789. Thus, to
show good cause for the issuance of a protective order, the State in Fuchs
needed to carry its burden of proof under RSA 91-A:5, IV to show that the
specific documents were exempt — a showing that the trial court invited the
State to make, but which the State declined to undertake.
If this court in Fuchs had intended to hold that RSA 105:13-b made
police personnel records “confidential” only in the limited sense that they would
be exempt from the Right-to-Know Law when the agency was able to meet its
heavy burden of proof under the RSA 91-A:5, IV balancing test, then this court
would not have held as it did: that, as a matter of law, the State was entitled to
the protective orders. Rather, this court would have held that the State was
entitled to a protective order only with respect to those records that met the
balancing test for exemption under RSA 91-A:5, IV. In short, we would have
affirmed the trial court’s decision rather than reversing it.
Finally, I believe that, in light of the carefully-crafted statutory
framework which governs access to police personnel information under RSA
105:13-b, the majority’s holding that such information is obtainable pursuant
to a Right-to-Know Law request is, at best, illogical. See In re N.K., 169 N.H.
546, 551 (2016) (“We will not interpret a statute to require an illogical result.”
(quotation omitted)); State v. Roger M., 121 N.H. 19, 21-22 (1981). As the
Division points out, parties in a criminal case could entirely circumvent the
protections afforded by RSA 105:13-b simply by submitting a public records
request under the Right-to-Know Law. For example, RSA 105:13-b, III limits
the ability of the trial judge to review police personnel files in camera —
paragraph III provides that no personnel file shall be opened for the purposes
of obtaining or reviewing non-exculpatory evidence in a 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. RSA 105:13-b,
III. “If the judge rules that probable cause exists, the judge shall . . . examine
the file in camera . . . .” Id. In contrast, under the Right-to-Know Law,
whenever there is a question whether materials are exempt from public access,
“the trial judge should conduct an in camera review to determine whether
portions of the materials meet any of the other statutory exemptions.” Prof’l
Firefighters of N.H. v. HealthTrust, 151 N.H. 501, 506 (2004) (quotation and
brackets omitted). Thus, a request by a defendant for an officer’s personnel file
under the Right-to-Know Law will likely result in an in camera review of
whatever portion of the file the agency asserts is exempt from disclosure under
4 A public entity seeking to avoid disclosure of material under the Right-to-Know Law bears the
“heavy burden to shift the balance toward nondisclosure.” Murray v. N.H. Div. of State Police,
154 N.H. 579, 581 (2006).
15
RSA 91-A:5, IV. It defies logic to require a showing of probable cause under
RSA 105:13-b before a court may review police personnel files in camera, while
at the same time providing for essentially automatic in camera review whenever
the same materials are requested pursuant to the Right-to-Know Law.
For all of the above reasons, I respectfully dissent.
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