2005-505, MARK HOUNSELL & a. v. NORTH CONWAY WATER PRECINCT

The petitioners, Mark Hounsell and Joseph Smith, appeal

the brief and orally), for the respondent.

Wadleigh, Starr & Peters, P.L.L.C, of Manchester (Kathleen C. Peahl on

and orally), for the petitioners.

Upton & Hatfield, LLP, of North Conway (Robert Upton, II on the brief to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes No. 2005-505 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as subsequently issued a press release reporting that decision. p. 2 result of the investigation and the Hunt-Alfano report, and the commissioners

request of the employees.

precinct took no disciplinary action against Smith or any other employee as a

or agents of the precinct, to be present during some of the interviews at the Hounsell and another individual, Ted Sares, neither of whom were employees Mitchell to be present during the interviews. It also permitted petitioner Alfano permitted Mitchell to review a copy of the Hunt-Alfano report. The authorization of the commissioners, and contrary to Johnstone’s instructions, in turn, provided the report to the commissioners. Without the knowledge or

tell Hunt and Alfano “whatever was on their minds.” The precinct permitted

of the report. Johnstone instructed them to release the report only to her; she,

charges for theft, public corruption, or witness tampering.” official or employee of [the precinct] warranted the commencement of criminal there would be no retaliation for their participation, and he encouraged them to Umberger advised them and their union representative, Brian Mitchell, that were reluctant to participate in the investigation, Commissioner James recommendations (Hunt-Alfano report). The record does not indicate the date

described in the MRI report to determine “whether the conduct of any public prosecution. investigation, the precinct placed Smith on paid leave. While some employees report in which they summarized the investigation and made findings and public, concluding that there was insufficient evidence to commence a criminal On February 23, 2005, the attorney general released her report to the

General initiated an investigation concerning allegations of criminal behavior MRI report to the public. In November 2003, the New Hampshire Attorney alleged mismanagement of the precinct. The precinct disclosed the resulting interviews of each precinct employee as part of their investigation. During the Following the conclusion of the interviews, Hunt and Alfano prepared a

commissioners, retained Municipal Resources, Inc. (MRI) to investigate the Alfano to investigate the complaint of harassment. Hunt and Alfano conducted through its legal counsel, Andrea Johnstone, retained Jack Hunt and John threatened and harassed by a co-worker, petitioner Smith. The precinct, In July 2004, an employee of the precinct alleged that he had been

In June 2003, the precinct, which is governed by a three-member board of The following facts were found by the trial court or appear on the record.

I. Background p. 3 3

Know cases, We have recognized that the traditional balancing test employed in Right-toexempts from disclosure “[r]ecords pertaining to internal personnel practices.”

at 625. The department had previously released to the newspaper its “Internal investigatory documents under the control of the Dover Police Department. Id. a question of law for this court, we review the trial court’s interpretation certain documents are categorically exempt.” Union Leader’s petition, under RSA chapter 91-A, for access to certain which the parties made offers of proof, the trial court denied the petition. A, the Right-to-Know Law. Because the interpretation of a statute is ultimately him.” In Fenniman, we reviewed whether the trial court properly granted the award of costs and attorney’s fees pursuant to RSA 91-A:8. After a hearing, at investigation, the [precinct] would likely have taken disciplinary action against public sessions at which the commissioners discussed the report, as well as an Fenniman, reasoned that “[h]ad Smith not been cleared as a result of the the report from disclosure under RSA 91-A:5, IV. The trial court, relying upon to-Know Law. Among other things, however, RSA 91-A:5, IV (Supp. 2005) Alfano report concerned an “internal personnel practice,” and, thus, exempted The trial court concluded that the investigation that generated the Hunt-

Law. Id. at 626. RSA chapter 91-A restrictively to further the purposes of the Right-to-Know 1 p. 3 36 N.H. 624, 627 (1993). However, we generally interpret the exemptions in

necessary where “the legislature has plainly made its own determination that Hunt-Alfano report was exempt from public disclosure under RSA chapter 91- see, e.g., Chambers v. Gregg, 1 p. 3 35 N.H. 478, 481 (1992), is not

transcripts recorded in connection with the report, and all minutes of non-

2005). It is undisputed that the precinct is a public body subject to the Rightthat the precinct was “estopped” from asserting the RSA 91-A:5, IV exemption. except as otherwise prohibited by statute or RSA 91-A:5.” RSA 91-A:4, I (Supp. public records, including minutes of meetings of the bodies or agencies . . . Right-to-Know Law provides that “[e]very citizen . . . has the right to inspect all novo. Prof’l Firefighters of N.H. v. HealthTrust, 151 N.H. 501, 50 p. 3 3 (2004). The

We first examine whether the trial court erred by concluding that the

the trial court a petition seeking access to the Hunt-Alfano report, all notes and II. Right-to-Know Law disclosure under RSA chapter 91-A. On April 25, 2005, the petitioners filed in that the report was a “confidential personnel document,” exempt from and by refusing to award attorney’s fees under RSA 91-A:8. They also argue concluding that the report was exempt from disclosure under RSA 91-A:5, IV On appeal, the petitioners contend that the trial court erred by

On April 7, 2005, the precinct issued an official denial of their request, stating The petitioners repeatedly requested a copy of the Hunt-Alfano report. misconduct by p. 4 also counters that public policy supports the investigation of complaints of practices” only in the context of internal police investigations. The precinct

the legislature intended to exempt “records pertaining to internal personnel

harassment or intimidation of another employee. It argues that the disclosure

issue before us. Nothing in the plain language of RSA 91-A:5, IV suggests that and the investigation could have resulted in disciplinary action. Thus, as in a co-worker. During the investigation, the precinct placed Smith on paid leave, dishonest or abusive police officers.”

“internal police investigatory file,” as in

take appropriate remedial action, especially where such a complaint alleges outcome of the investigation. all public employees so that public bodies and agencies can

was similar to the information contained in the disposition forms in nature of the complaint, the information set forth in the precinct’s press release investigatory files. Furthermore, with the exception of the description of the the petitioners are factually correct, this distinction has little relevance to the

“Internal Investigation Disposition Forms,” where here, the precinct conveyed Fenniman, where exemption was In addition, the petitioners argue that the Hunt-Alfano report was not an

136 N.H. at 625-26, including the name of the charged employee and the

investigation. investigation affected our decision to reverse the trial court’s disclosure of the however, that the prior release of some information concerning the

“public’s right-to-know” was already largely satisfied by the prior release of upon several grounds. Specifically, they contend that in Fenniman, the pursuant to RSA 91-A:5, IV. The petitioners argue that this case is distinguishable from Fenniman

“internal personnel practices.” investigation of claimed employee misconduct, was a record pertaining to Fenniman, the Hunt-Alfano report, which was generated in the course of an department’s memoranda and other records compiled during the internal

We agree with the trial court that the Hunt-Alfano report concerned

practice.” As such, we held that the files were exempt from disclosure internal personnel discipline, a quintessential example of an internal personnel personnel practices” because “they document[ed] procedures leading up to

Id. at 626. We concluded that such files pertained to “internal

department’s “internal police investigatory files,” which included the See id. at 625-26. The newspaper, however, sought additional access to the investigation of whether a department lieutenant made harassing phone calls. Investigation Disposition Forms,” detailing general facts underlying the internal exclusion of internal personnel practice records from RSA 91-A.” We agree.

p. 5 of the investigation [would] not alleviate the concerns giving rise to the it, nevertheless, concluded that “discussion about the MRI report in the course discuss the MRI report in the investigation into the allegations against Smith,

the Hunt-Alfano report was exempt from public disclosure.

acknowledged a dispute concerning whether the employees were encouraged to

and, accordingly, conclude that the trial court did not err by determining that exemption under RSA 91-A:5, IV. We reject the petitioners’ zero-sum approach contained essentially the same content. As this inquiry concerns only the prior including the information concerning the Smith investigation therein, from

legal authority in support of their contentions. Moreover, while the trial court

They claim that all three reports were prepared in the same manner and information concerning the MRI report removed the entire Hunt-Alfano report,

exemption under these circumstances, and the petitioners have presented no language of RSA 91-A:5, IV restricts a public body or agency from asserting an Such arguments are unpersuasive, however, because nothing in the plain 5

report by its “prior release of the MRI Report and Attorney General’s Report.” disclosure of the materials; they argued only that the presence of any A:5, IV, the precinct was estopped from refusing to disclose the Hunt-Alfano exemption. The petitioners argue that, regardless of the application of RSA 91-

encouraged to use the interviews as an opportunity to discuss the MRI report.

parties’ offers of proof. Furthermore, the petitioners never requested a partial this narrow factual distinction. We next examine whether the precinct was “estopped” from asserting the disclosure, III. Estoppel an

allowed Mitchell to review the report; and (4) the employees were allegedly request of the employees, without a stipulation of confidentiality; (3) Alfano permitted Mitchell, Hounsell, and Sares to observe the interviews, at the

below and the trial court applied the RSA 91-A:5, IV exemption based upon the “internal police investigatory file,” and we reject the petitioners’ reliance upon see HealthTrust, 151 N.H. at 506, neither party made this request documents concerned the MRI report and was, arguably, subject to public in camera review to determine whether any portion of the requested Although the trial court would have been within its discretion to conduct

status” because: (1) the precinct contracted with outside investigators; (2) it

implicate policy concerns similar to those underlying the disclosure of an retaliation. We find that the disclosure of the Hunt-Alfano report would investigations, for fear of public embarrassment, humiliation, or even

The petitioners further contend that the investigation lost its “internal

deter the reporting of misconduct by public employees, or participation in such of records underlying, or arising from, internal personnel investigations would estopped from asserting the RSA 91-A:5, IV exemption. p. 6 in non-disclosure. We, thus, reject the petitioners’ claim that the precinct was

petitioners’ construction of the “public interest” against the precinct’s interest

MRI report and exempting the Hunt-Alfano report, we need not weigh the

demonstrate that the precinct acted in an arbitrary fashion by disclosing the from disclosure pursuant to RSA 91-A:5, IV. As the petitioners have failed to misconduct, pertained to “internal personnel practices,” and, thus, was exempt

which was generated in the course of an investigation of alleged employee

concerned the mismanagement of the precinct, and the Hunt-Alfano report, distinction between the substance of the MRI report, which primarily court did not explicitly address this issue, the record supports a clear

merits of their request for attorney’s fees.

outweighs the important government interest at stake. Even though the trial

trial court properly denied their petition for disclosure, we need not address the

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred. preventing the precinct commissioners from engaging in such conduct to exempt records in an arbitrary fashion, and that the public interest in Affirmed. however, that the precinct has ignored that interest by invoking RSA 91-A:5, IV

petitioners their attorney’s fees under RSA 91-A:8. Having concluded that the Finally, we address whether the trial court erred by refusing to award the

IV. Attorney’s Fees

internal personnel practices is an important government interest. They argue,

undermining important government interests.”

The petitioners concede that the non-disclosure of records pertaining to does not favor its application against municipalities. N.H. at 102.

capriciously dealing with its citizens [outweighs] the risk, posed by estoppel, of who released that report. under these facts, that “the public interest in preventing the government from essential elements of municipal estoppel, id. at 468, they cannot demonstrate, deciding that the petitioners could meet their burden of demonstrating the four of Concord v. Tompkins, 124 N.H. 463, 467 (1984). Even assuming without municipality.” Id. The party asserting estoppel bears the burden of proof. City interest may be jeopardized by applying the doctrine of estoppel against the 138 N.H. 99, 102 (1993). “This is especially true when a valuable public

Although municipal corporations may be subject to estoppel, the law

attorney general’s report, as it is undisputed that it was the attorney general disclosures made by the precinct, we need not consider the disclosure of the