(2007-566), DOUGLAS LAMBERT & a. v. BELKNAP COUNTY CONVENTION, (2007-685), THOMAS A. TARDIF & a. v. STEPHEN H. NEDEAU, CHAIRPERSON

Mullen on the brief and orally), for the defendants. Ransmeier & Spellman, Professional Corporation, of Concord (Daniel J.

Mr. Tardif on the brief, and Mr. Tardif orally). Douglas Lambert, pro se; and Thomas A. Tardif, pro se (Mr. Lambert and

STEPHEN H. NEDEAU, CHAIRPERSON & a.

to press. Errors may be reported by E-mail at the following address: 2007-685 Nos. 2007-566 Belknap

page is: http://www.courts.state.nh.us/supreme. 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

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

session. process for filling the vacancy, the Convention voted to enter nonpublic

[member] will have a score sheet for each candidate. interviewed, and asked specific questions. Each

661:9, I (Supp. p. 2 2007). disclose the full list of applicants. of an elected county office, including that of the Belknap County sheriff, RSA Convention publicly announced the names of the two finalists, but did not and has the power, among other things, to fill a vacancy for the unexpired term candidates and ultimately selected two finalists for the vacancy. The session. During the nonpublic session, the Convention interviewed the seven On June 11, 2007, the Convention again voted to enter nonpublic

vacancy created by the resignation of Sheriff Dan Collis. To discuss the

The [Convention] agreed that all seven should be file in Angela Bell’s office, and will also be sent out. member, and that letters of recommendation are on for seven candidates have been sent to each . . . Chair[person] Nedeau announced that the applications

representatives of Belknap County’s representative districts, RSA p. 2 24:1 (2000), note, in pertinent part:

See generally RSA 91-A:3 (Supp. p. 2 2007). The minutes of that session

On May p. 2 29, 2007, the Convention convened to discuss the mid-term

one sheriff be elected for a two-year term at every state general election). sheriffs . . . shall be elected . . . .”); RSA 653:1, V (Supp. p. 2 2007) (mandating that

Convention’s record keeper. The following facts are undisputed. The Convention consists of the state Stephen H. Nedeau, the Convention’s chairperson, and Angela A. Bell, the the trial court’s denial of their request for documents from respondents I

(documents requires redaction. Accordingly, we reverse and remand. consideration of whether certain personal information that may be in those applications for the vacancy, see RSA 91-A:4, I (Supp. p. 2 2007), but remand for must be afforded access to the documents relating to the candidates’ See RSA 91-A:2, II, :8, II (Supp. 2007). We further hold that the petitioners was required to fill the vacancy in public session rather than by secret ballot. that the appointment of Wiggin must be invalidated because the Convention

County sheriff by respondent Belknap County Convention (Convention); and ( p. 2 2) Mohl, J.) to invalidate the appointment of Craig Wiggin to the office of Belknap Lambert and Thomas A. Tardif, challenge: (1) the failure of the Trial Court DUGGAN, J. In these consolidated appeals, the petitioners, Douglas p. 3 3

legislative intent from the statute as written and will not consider what the sheriff; and ( p. 3 3) failing to provide them access to the documents. plain and ordinary meaning to the words used. Id. at 504. We interpret process in nonpublic sessions; (2) failing to invalidate the selection of Wiggin as 498, 503-04 (2007). When examining the language of a statute, we ascribe the the statute considered as a whole. In the Matter of Carr & Edmunds, 156 N.H. we are the final arbiter of the legislature’s intent as expressed in the words of Know Law. Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106, 108 (2005). Thus, the court declined to invalidate the selection of Wiggin as sheriff. ordinary rules of statutory construction apply to our review of the Right-toa different result if the matter were to be revisited by the Convention.” Thus, provisions, including certain provisions of the Right-to-Know Law. The Resolution of this case requires us to interpret several statutory

finding that the Convention could have conducted the entire appointment On appeal, the petitioners contend that the trial court erred in: (1)

Bell, seeking disclosure of the documents.

secret ballot,” there was “no reason to believe that the Convention would reach the two final candidates in public and voting at the public session, albeit by further than the Right-to-Know law required [by] conducting interviews with selecting the Sheriff in nonpublic sessions,” and, because “the Convention went 91-A: p. 3 3, II(b), the Convention could have “conduct[ed] the entire process of Law by using a secret ballot. However, the court found that, pursuant to RSA The trial court agreed that the Convention violated the Right-to-Know

selection of Wiggin as sheriff, see RSA 91-A:8, II. vacancy, see RSA 91-A:2, II, and requested that the trial court invalidate the the petitioners filed a petition for declaratory judgment against Nedeau and Convention violated the Right-to-Know Law by using a secret ballot to fill the documents. Alleging a violation of RSA chapter 91-A, the Right-to-Know Law, declaratory judgment action against the Convention. They alleged that the sheets (documents). After speaking with Nedeau, Bell refused to disclose the Wiggin commenced his official duties as sheriff, the petitioners filed a a vote of ten-to-four with one abstention, selected Wiggin as sheriff. Before session. After deciding to use a secret paper ballot to vote, the Convention, by On June 25, 2007, the Convention interviewed the two finalists in public

personal information.” seven applicants outweighed the public’s interest in disclosure of “otherwise denied the petitioners’ request because it found that the privacy interests of the

review the seven applications, all letters of recommendation, and all score On June 2 p. 3 3, 2007, the petitioners submitted a written request to Bell to town meetings, school district meetings and elections, 4

p. 4 be permitted to attend any meetings of those bodies or agencies. Except for part: “All public proceedings shall be open to the public, and all persons shall for the unexpired term by majority vote.” RSA 91-A:2, II states, in pertinent county sheriff . . . , the members of the county convention shall fill the vacancy . . . relied upon as foundation for the nonpublic session.” seconded” that “state[s] on its face the specific exemption under paragraph II enter nonpublic session, except pursuant to motion properly made and one of the purposes set out in paragraph II,” and “[n]o body or agency may 91-A:3, I, “[b]odies or agencies shall not meet in nonpublic session, except for entity bears a heavy burden to shift the balance toward nondisclosure.” session may be taken by secret ballot.” (Emphasis added.) Pursuant to RSA

involved.”

because they are RSA 661:9 provides, in relevant part: “If a vacancy occurs in the office of

Murray, 154 N.H. at 581 (citation omitted).

entity seeks to avoid disclosure of material under the Right-to-Know Law, that (1997) (quotation omitted); see also Lamy, 152 N.H. at 108. “[W]hen a public

Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 546

restricted.” understanding the necessary accommodation of the competing interests access to governmental proceedings and records shall not be unreasonably in pari materia, are interpretively helpful, especially in “We also look to the decisions of other jurisdictions, since other similar acts, construing exemptions narrowly. Murray, 154 N.H. at 581 (citation omitted). Thus, we construe provisions favoring disclosure broadly, while

information. Id.; Herron v. Northwood, 111 N.H. 324, 326 (1971). questions regarding the Right-to-Know Law with a view to providing the utmost facilitating access to all public documents and proceedings, we resolve and proceedings, to best effectuate the statutory and constitutional objective of Although the statute does not provide for unrestricted access to public records

Id. (quotation omitted); see also N.H. CONST. pt. I, art. 8.

law “helps further our state constitutional requirement that the public’s right of bodies, and their accountability to the people.” Id. (quotation omitted). The possible public access to the actions, discussions and records of all public “The purpose of the Right-to-Know Law is to ensure both the greatest

State Police, 1 p. 5 54 N.H. 579, 581 (2006). undisputed, we review the trial court’s rulings de novo. Murray v. N.H. Div. of statutory scheme and not in isolation. Id. Where, as here, the facts are to include. Id. We also interpret a statute in the context of the overall legislature might have said or add language that the legislature did not see fit 5

a public employee” includes the appointment of an interim sheriff. not hired. 108; Herron, 111 N.H. at 326. Thus, we decline to hold that “[t]he hiring of . . . permit freedom of access to public records and proceedings. Lamy, 1 p. 5 52 N.H. at an occupant or incumbent.” Know Law narrowly, in order to further the primary purpose of the statute to our well-established practice of construing exemptions under the Right-toterm “hiring” broadly to include “appointments.” To do so would be contrary to sheriff constituted an appointment, but contend that we should construe the the Convention, has the authority to remove a sheriff for official misconduct, The respondents agree that the Convention’s selection of Wiggin as

or incumbent “for a fixed sum.” (interpreting the term “filling a vacancy” as constituting an “appointment”). Freedom of Inf. Comm’n, p. 5 566 A.2d 1380, 1381 (Conn. Super. Ct. 1988) by authority . . . [or] to place in an office or post”); cf. Board of Educ. v. (unabridged ed. 2002) (defining “appoint” as “to assign, designate, or set apart A:3, II(b). In common understanding, public officers are elected or appointed, person to the office. Webster’s Third New International Dictionary 105 661:9, I, is not equivalent to “hiring” a “person as a public employee,” RSA 91- the vacant office in lieu of an election, and as such is essentially “appointing” a A:3, II(b). “Filling” a “vacancy . . . in the office of the county sheriff,” RSA Convention may “fill the vacancy”; that is, “furnish ([the] vacancy or office) with sheriff, but is instead designating an occupant for, or placing an occupant in, people. Thus, the Convention is not “hiring” the occupant for the office of the see RSA 661:9, IV, and, otherwise, the interim sheriff is accountable only to the

1072 (unabridged ed. 2002) (defining “hire”). Notably, the superior court, not

Convention is not “hiring” or “engag[ing] the personal services of” that occupant with incumbents[, e.g., fill] vacancies left by retirements”). In so doing, the Dictionary 849 (unabridged ed. 2002) (defining “fill” as, inter alia, “to provide Language p. 5 531 (1966) (defining “fill”); see also Webster’s Third New International

[t]he hiring of any person as a public employee” in nonpublic session. RSA 91- However, when the office becomes vacant during that term, the

CONST. pt. II, art. 71; RSA 6 p. 5 53:1, V. pursuant to the exemption in paragraph II(b). We disagree. “elected” to the office of the county sheriff for a specified term. See N.H. (emphases added)). Consistent with that understanding, a person is normally been legally elected or appointed and exercising governmental functions” ed. 2002) (defining “public officer” as “a person holding a post to which he has

See Webster’s Third New International Dictionary 1836 (unabridged

Paragraph II(b) permits a body or agency to “consider[] or act[] upon . . .

could have filled the vacancy in the office of the sheriff in nonpublic session The respondents assert, and the trial court found, that the Convention p. 6 6

based and of the decisions taken is essential to the democratic process.” “[P]ublic knowledge of the considerations upon which governmental action is opportunity to know and scrutinize the actions of its governmental officials.

those sessions. 29 and June 11, or whether any of the exemptions in RSA 91-A:3 apply to “a public body is appointing an individual to fill a position normally filled by an Carter v. Nashua, 113 N.H. 407, 41 p. 6 6 (1973) (citation omitted). Where, as here,

91-A:2, II, the legislature clearly evinced its intent to allow the public an In generally forbidding secret ballot votes during open session, see RSA

(2001) (explaining unsustainable exercise of discretion standard). discretion standard. See id. at 355-5 p. 6 6; State v. Lambert, 147 N.H. 295, 296 Thus, we review the trial court’s decision under our unsustainable exercise of failure to cite a specific exemption prior to entering nonpublic session on May nature . . . .” In the Matter of Bazemore & Jack, 153 N.H. 351, 354 (2006). trial court’s ruling, we need not address the consequences of the Convention’s is a general rule of statutory construction that the word ‘may’ is permissive in for the nonpublic sessions. Given that the Convention has not challenged the chapter, if the circumstances justify such invalidation.” (Emphasis added.) “It on its face a specific exemption under RSA 91-A:3, II that provided foundation body or agency taken at a meeting held in violation of the provisions of this words that the legislature did not see fit to include. ballot. Under RSA 91-A:8, II, “[t]he court may invalidate an action of a public acting upon the hiring of a person as a public employee. We will not insert invalidate Wiggin’s selection as sheriff despite the Convention’s use of a secret meet in nonpublic session to those where the body or agency is considering or meetings, we must now consider whether the trial court properly declined to Keeping in mind the legislature’s intent to allow public access to such

in violation of RSA 91-A:3, I, neither motion to enter nonpublic session stated for the office. The trial court ruled, and the Convention does not contest, that, discuss the process for filling the vacancy and interview the seven candidates 200 p. 6 6), our legislature chose to limit instances in which a body or agency may after motion, the Convention entered nonpublic sessions to, respectively, At the May 29 and June 11, 2007 meetings prior to the secret ballot vote,

the office of the sheriff in public session. session, we conclude that the Convention was required to fill the vacancy in Convention could have filled the vacancy in the office of the sheriff in nonpublic respondents do not offer, any other exemption supporting the notion that the N.H. at 503-04. Accordingly, because the trial court did not cite, and the

§ 121.22(G)(1) (LexisNexis 2007); W. Va. Code Ann. § p. 6 6-9A-4(b)(2)(A) (LexisNexis Rev. Stat. Ann. § 38.431.03(A)(1) (LexisNexis 2007); Ohio Rev. Code Ann. from the open meeting requirement, as other states have done, see, e.g., Ariz. While it could have used language specifically exempting appointments personal information.” We disagree.

p. 7 “outweigh the public’s unarticulated interest in disclosure of otherwise the future.” Thus, the court found that the privacy interests of the candidates information may discourage candidates from applying for similar positions in

activities of their government but will instead inform the public of the seven “Disclosure of the documents will not inform the public about the conduct and at stake that would be invaded by the disclosure. Id. Whether information is petitioners access to the documents. Specifically, the trial court found: Lamy, 152 N.H. at 109. First, we evaluate whether there is a privacy interest of public records constitutes an invasion of privacy under RSA 91-A:5, IV. We engage in a three-step analysis when considering whether disclosure

the representatives accountable.

accountability to the people.” RSA 91-A:1 (2001). files whose disclosure would constitute invasion of privacy” in denying the The trial court relied upon the exemption in RSA 91-A:5, IV for “other

prohibited by statute or RSA 91-A:5.” could determine how their representatives voted such that they could then hold photostatic copies of the records or minutes so inspected, except as otherwise was critical since there was no other manner in which members of the public bodies or agencies, and to make memoranda, abstracts, and photographic or from the vote altogether. In these circumstances, the public’s need for scrutiny has the right to inspect all public records, including minutes of meetings of the documents. RSA 91-A:4, I, provides, in pertinent part, that “[e]very citizen . . . We now examine whether the respondents must disclose the requested

the Right-to-Know Law “to ensure both the greatest possible public access to Convention’s selection. legislative mandate against such votes, but also the fundamental purpose of court unsustainably exercised its discretion in failing to invalidate the decision to fill the vacancy by secret ballot contravenes not only the explicit Id. Accordingly, we conclude that the trial

opposed the selection of Wiggin as sheriff and one representative abstained Moreover, in this case, the vote revealed that four representatives

substituting their judgment for that of the people. Thus, the Convention’s very nature represent the will of the people, and, in their actions, are greater import when the public body at issue consists of persons who by their 703, 706 (N.J. Super. Ct. Law Div. 19 p. 8 84). Such public scrutiny is of even even more compelling.” Gannett Satellite Info. Net. v. Bd. of Educ., 492 A.2d elected official, the reasons for allowing public scrutiny of the actions taken are 8

“application” private. and, thus, the candidate could not have reasonably expected to keep his or her have had full knowledge that the candidate sought to become county sheriff, domiciled). Each candidate’s employer as well as the general public would

capacities often expose their private lives to public scrutiny . . . . It may be that P.2d 1316, 1324 (Alaska 19 p. 8 82) (“Public officials must recognize their official vacancy in an See City of Kenai v. Kenai Peninsula Newspapers, 642

states the candidate’s name, and ward, city, and county in which he or she is that other people were deemed better qualified for a competitive appointment.” declaration of intent with the secretary of state, which, among other things, workers, and prospective employers, should they seek new work, may learn general election by means other than nomination by party primary to file a nondisclosure. state office who intends to have his or her name placed on the ballot for state general election); RSA 655:14-a, :17-a (1996) (requiring every candidate for subject to public scrutiny. See, e.g., RSA 653:1 (county sheriff elected at state run for election and much of their personal information would have been

elected office. Under normal circumstances, they would have

in the requested documents, we emphasize that the candidates applied for a First, in deciding whether the candidates have a general privacy interest disclosure, it belongs to all.” do with as they choose. As a general rule, if the information is subject to

applicants who failed to get a job”; and (2) “[t]heir present employers, cothe documents because: (1) their disclosure “may embarrass or harm government’s interest in nondisclosure and the individual’s privacy interest in omitted)). The respondents add that the candidates have a privacy interest in disclosure serves as a conduit into the sanctuary of the home” (quotation name and address implicates that person’s privacy rights because the in their personal information. Id. at 110 (explaining that “disclosing a person’s nonetheless prefer, albeit for other reasons, that the information be released.” The trial court found that the candidates have a general privacy interest

activities of their government. Id. (quotation and ellipses omitted).

that is subject to disclosure under the Right-to-Know Law belongs to citizens to disclosure are irrelevant to the question of access. Id. at 111. “Information

Id. at 109. However, an individual’s motives in seeking

Finally, we balance the public interest in disclosure against the

Id. at 111 (quotation omitted).

this purpose, disclosure will not be warranted even though the public may

the requested information should inform the public about the conduct and Second, we assess the public’s interest in disclosure. Id. Disclosure of

the Right-to-Know Law mandates disclosure. Id. and not a party’s subjective expectations. Id. If no privacy interest is at stake, exempt from disclosure because it is private is judged by an objective standard disclosure is paramount.

p. 9 for that of the people in selecting an interim sheriff, the public’s interest in upon the information contained in the documents, is substituting its judgment their representatives. In these circumstances, where the Convention, based

office. has a diminished privacy expectation in personal information relevant to that candidate. Thus, a candidate voluntarily seeking to fill an elected public office

would be left in the dark and would have no means of assessing the votes of

the selection process.”). Moreover, absent disclosure, members of the public by the applicants, and to seek additional information which may be relevant to members of the public . . . to verify the accuracy of the representations made inform the public about its government’s activities. (“Disclosing the names and applications of applicants allows interested respondents’ assertion, disclosure of these documents would undoubtedly perform the duties of the office. See City of Kenai, 642 P.2d at 1324 the candidates and determine which candidate they believe is best qualified to Therefore, the members of the public should have the opportunity to evaluate agency or department, Gannett Satellite Info. Net., 492 A.2d at 705-06. office at issue, and, consequently, requires members of the public, either approval of the public, not upon the approval of the Convention or any other to apply for an elected public office places his or her qualifications for that absent official misconduct, see RSA 651:9, IV, is dependent wholly upon the same office during an election year. In both situations, a candidate’s decision office. A successful candidate’s continued retention in the office of sheriff, a significant interest in knowing the candidates under consideration for that Again, the candidates applied for a vacancy in an elected office. The public has

Second, we consider the public’s interest in disclosure. Contrary to the

reasonable under the circumstances”), writ denied, 561 So. 2d 103 (La. 1990). chief of fire department in a substantial municipality “was not objectively App. 1990) (finding that expectations of privacy of applicants for position as resumes); Gannett River States Publ. v. Hussey, 557 So. 2d 1154, 1159 (La. Ct. (finding that applicants for public employment have no privacy interest in their office should have a greater privacy interest than candidates who run for that 1324; Capital City Press v. Metro. Council, 696 So. 2d 562, 567-69 (La. 1997) minimal privacy interests in their curricula vitae); City of Kenai, 642 P.2d at on advisory committee for United States Department of Agriculture had where the job sought is a high public office.” (quotation omitted)). 2d 1, 3, 6 (D.D.C. 2000) (finding that nonappointed applicants for membership Cf. Physicians Committee for Resp. Medicine v. Glickman, 117 F. Supp.

We see no reason why candidates who apply for a vacancy in an elected

has applied for another job. That desire is one which cannot be accommodated in some cases an individual will not wish his current employer to know that he p. 10 10

sought, these interests must yield to the public’s right to know. nondisclosure, on balance, because of the important nature of the position States Supreme Court has noted, effect unless it has other candidates to which to compare the one chosen.” documents, and the documents are not included in our record. As the United trial court does not appear to have conducted an in camera review of the the petitioners are entitled to none of the information in the documents. The by law for those who elect not to place themselves in the public spotlight.” documents. In a similarly all-or-nothing fashion, the respondents counter that elected public office, the candidates surrendered much of “the privacy secured of qualified applicants for public employment. As in On appeal, the petitioners request access to all the information in the

the balance towards nondisclosure. interests in having their names and applications not revealed). Accordingly, the respondents have failed to meet their heavy burden of shifting applications for police chief and city manager outweighs the applicants’ privacy See id. public selection process” and concluding that public interest in disclosure of positions of authority in . . . governments will be deterred from applying by a Thus, although the government and the candidates have an interest in

In this context, “[t]he public’s scrutiny of the chosen candidate will lose all the candidate finally selected by the” Convention. Hussey, 557 So. 2d at 1159. has a vital and obvious interest in the background of all applicants, not just funds and upon which the lives and safety of the public depends, the public about the candidates who will fill the elected position. By applying to fill an agree that the government has an interest in receiving the largest possible pool Because the office of the sheriff is an elected office “supported by public potential applicants are aware that their applications will be made public. We for the vacancy, and that the pool of applicants may be significantly reduced if

not intuitively obvious that most well qualified potential applicants for 557 So. 2d at 1159; see also City of Kenai, 642 P.2d at 1324 (noting that “[i]t is significantly outweighs the government’s interest in nondisclosure. Hussey, conclude that, in these circumstances, the public’s interest in disclosure

people in a prior election. The public has a significant interest in information vacancy caused by the retirement of a sheriff who had been chosen by the the candidates. The sole reason for the application process was the mid-term interest in ensuring that the largest possible pool of qualified individuals apply Citing Hussey, the respondents assert that the government has an

interests in nondisclosure. Thus, the public’s interest in disclosure outweighs the candidates’ privacy Hatfield v. Bush, 540 So. 2d 1178, 1182 (La. Ct. App. 1989) (citation omitted).

public’s interest in disclosure significantly outweighs the privacy interests of Finally, in balancing the foregoing interests, we conclude that the p. 11 11

in disclosure. government in nondisclosure of such information outweigh the public’s interest requires redaction, and demonstrating that the interests of the candidates and

bear the burden of identifying specific information, if any, that they believe information should be redacted before disclosure. On remand, the respondents

whether, in accordance with the principles outlined above, any personal warranted for such information. We therefore remand for consideration of its disclosure, we have no means of assessing whether redaction might be BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred. of the nature of that information and the consequences that might ensue from

interest in certain personal information contained in the documents by virtue Thus, while the candidates may have more than a minimal privacy

Department of State v. Ray, 502 U.S. 164, 176 n.12 (1991) (quotation omitted).

particular list, and the consequences likely to ensue. characteristic(s) revealed by virtue of being on the significant or de minimis threat depends upon the Instead, . . . whether disclosure of a list of names is a threat to the privacy of the individuals on the list. information is [not] inherently and always a significant disclosure of a list of names and other identifying