2010-784 Union Leader Corporation v. New Hampshire Retirement System

Malloy & Sullivan, P.C.

No. 2010-784

Hillsborough-northern judicial district

Sulloway & Hollis, P.L.L.C.

Orr & Reno, P.A. appeals a decision of the Superior Court (Garfunkel HICKS, J. The defendant, New Hampshire Retirement System (NHRS),

Law, RSA chapter 91-A (2001 & Supp. 2010). We affirm. Leader Corporation (Union Leader), under New Hampshire’s Right-to-Know certain records related to retiree benefits requested by the plaintiff, Union , J.) ordering it to disclose

England First Amendment Coalition, as amicus curiae.

Murdough on the brief, and Mr. Kaplan orally), for the defendant.

and orally), for the plaintiff.

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 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 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 22 as nondisclosure and the retirees’ privacy interests. Union Leader argues that the p. 2 public’s interest in disclosure and balance it against NHRS’s interest in disclosing retirees’ names and annuity amounts; and (4) failing to assess the consult legislative history; (3) failing to recognize the privacy interest at stake in records; (2) finding RSA 91-A:4, I-a unambiguous and therefore failing to the plain language of RSA 91-A:4, I-a required disclosure of the requested On appeal, NHRS argues that the trial court erred in: (1) concluding that

RSA 91-A:5, IV (Supp. 2010). This appeal followed. not exempt as a “file[] whose disclosure would constitute invasion of privacy.’’ “subject to mandatory disclosure” under RSA 91-A:4, I-a (Supp. 2010), and was The trial court granted the petition, finding that the information was

Law for access to the information it had requested. Leader thereafter filed a petition with the trial court under the Right-to-Know last employer was either the State of NH or a political subdivision.” Union member category (police, fire, teacher, employee), and whether the annuitant’s amount of their annual benefit.” The list would “identif[y] the annuity type, December 2009, of all state “annuities ranked from highest to lowest by NHRS denied the request, but offered to provide a list, updated as of 2

an article I will write on the state retirement system.” the “request as a reporter for the New Hampshire Union Leader newspaper for top 500 pension earners received that year.” The reporter stated that she made payments from Jan. 1 to Dec. 31, 2009. Also include the amount each of these

retirement system members who received the highest annual pension Right-to-Know Law, that NHRS provide “[a] list of names of the 500 state elsewhere.” In February 2010, a Union Leader reporter requested, under the circulation, and other media, throughout the state of New Hampshire, and Union Leader describes itself as “a publisher of newspapers of general

XXI (2001) (defining “Member annuity” and “State annuity”). (citation omitted) (quoting RSA 100-A:5, :1, XXII (2001)); see RSA 100-A:1, XX, state annuity.’” Petition of Concord Teachers, 158 N.H. 529, 530-31 (2009) ‘retirement allowance,’ consisting of ‘the sum of the member annuity and the (amended 2011), become entitled, at retirement, to “receive a defined lifetime requirements, see RSA 100-A:5 (2001) (amended 2011), :6 (Supp. 2010) (amended 2011). NHRS members meeting certain creditable service and other N.H. Judicial Ret. Plan, 161 N.H. at 50; see RSA 100-A:16 (Supp. 2010) member and employer contributions and investment income.” Bd. of Trustees, A:2 (2001), :3 (Supp. 2010) (amended 2011). “It is funded exclusively through N.H. Judicial Ret. Plan v. Sec’y of State, 161 N.H. 49, 50 (2010); see RSA 100pension trust for state and political subdivision employees.” Bd. of Trustees, record, or are established as a matter of law. “NHRS is a defined benefit The following facts were found by the trial court, are supported in the retirement, “stretches ‘very soon after’ far beyond the plain meaning of ‘upon.’” p. 3 contends that this interpretation, covering payments made throughout retirement and during the duration of retirement.” (Quotation omitted.) NHRS instead contemplates payments made both immediately at the moment of the statute to one-time payments remitted at the moment of retirement, but “immediately or very soon after” and concluded that the term “does not limit The trial court construed the term “upon” as used in the statute to mean

made to employees to bring about their retirement.” retirement payments to retirees, but rather only applies to incentive payments that “[t]he plain language of the statute does not require disclosure of state employees [who] have retired.” NHRS challenges that conclusion, arguing concluded that it subjected to “mandatory disclosure” “any payments made to The trial court found the statutory language unambiguous and

Id

RSA 91-A:4, I-a (emphasis added).

documents.

employee’s agent or designee, upon body or agency listed in RSA 91-A:1-a, VI(a)-(d), or to the

nonpublic session pursuant to RSA 91-A:3.

constitutional objective of facilitating access to all public

Records of any payment made to an employee of any public

that the matter may have been considered or acted upon in payments shall be available for public inspection notwithstanding available without alteration for public inspection. All records of

information in order to best effectuate the statutory and the Right-to[-]Know law with a view to providing the utmost

RSA 91-A:4, I-a provides:

91-A:4, I-a, “which is a question of law that we review de Resolution of NHRS’s first two arguments requires us to interpret RSA

accrued vacation, sick, or other leave, shall immediately be made retirement of the employee, paid in addition to regular salary and the resignation, discharge, or statutory language is ambiguous. We resolve questions regarding the words used and will consider legislative history only if the When interpreting a statute, we first look to the plain meaning of

. (quotation omitted).

N.H. Dep’t of Transp., 161 N.H. 746, 752 (2011) (quotation omitted). novo.” ATV Watch v.

attorney’s fees and costs. trial court correctly ordered disclosure, but erred in failing to award it severance pay

p. 4 be able to discern what information was used to calculate the [were] not readily available. Under HB 624, concerned citizens will

and the accounting methods used to calculate the severance sum

payments made to employees of the public body in connection with accountable to the people, make available all records pertaining to

immediately. Evidently the decision may have been made in haste, hundred and twenty-five thousand dollars to vacate the position a situation in Hampton wherein the town manager was paid one retirement, subject to the right-to-know law. This bill arose out of

conduct of public business that public bodies, in order to be

public body upon the employee’s resignation, discharge, or and accrued vacation, sick, or other leave paid to an employee of a This bill makes payments made in addition to regular salary

The general court hereby finds that it is essential to the

Senator Sheila Roberge explained the impetus for the bill: disclosure of personnel issues.” N.H.H.R. Jour. 426 (1997). Before the Senate, available under the right-to-know law. This bill does not in any way provide for employee is terminated, the financial payment should be public information Representatives: “The committee agreed with the sponsor that when a public was prefaced by the following findings: RSA 91-A:4, I-a was enacted in 1997 by Laws 1997, 90:2. The provision Judiciary and Family Law Committee, stated before the House of Laws 1997, 90:1 (emphasis added). Representative Sandra B. Keans, for the Appeal of Gamas the statute is ambiguous, and we look to legislative history to aid our analysis.” employee’s salary and accrued benefits. one reasonable interpretation of the[] statutory provision[], we conclude that their leaving employment that are not payments associated with an Leader’s constructions of the statute are plausible. “Since there is more than definitions of the term “upon” are acceptable and that both NHRS’s and Union retired employee as retirement allowance.” We conclude that both of the above public entity as a result of the retirement, including NHRS’s payments to a retirement of a public employee includes “every single payment made by a with ‘after’ or ‘in the event of’” and, therefore, any payment made “upon” the Nevertheless, Union Leader argues that the term “‘upon’ is synonymous

retirement, a construction more in line with that put forth by NHRS. Rather, it requires the payment to be temporally proximate to the occasion of meaning of the term, it does not support the court’s construction of the statute. We agree. Although the definition cited by the trial court is an accepted personnel files and other information necessary to an individual’s privacy need p. 5 We have stated that this section “means that financial information and

constitute invasion of privacy.

videotape sale or rental, and other files whose disclosure would

examinations; and personnel, medical, welfare, library user, licensing examination, examination for employment, or academic scoring keys, and other examination data used to administer a confidential, commercial, or financial information; test questions,

Records pertaining to internal personnel practices;

91-A the following: RSA 91-A:5, IV exempts from the disclosure provisions of RSA chapter

would “interfere[] significantly with a retiree’s privacy.” from disclosure under RSA 91-A:5, IV because release of that information records.” NHRS, however, contends that the requested records are exempt [RSA] 91-A:5 contains any explicit provision for confidentiality of NHRS records are subject to the Right-to-Know Law. Neither [RSA chapter] 100-A nor does not deny that it is a public entity, administering public funds, and that its Article 8 of the New Hampshire Constitution. Union Leader asserts that “NHRS subject to disclosure under the general mandate of RSA 91-A:4 and Part I, disclosure of the records at issue, the question remains whether they are Although we have concluded that RSA 91-A:4, I-a does not compel

ambiguous, we are obliged to consult legislative history. See found that the statutory language the legislature chose to use, as a whole, is records of payments immediately available.” We are not persuaded. Having issue in the Town of Hampton,” but instead “chose to make ‘any’ and ‘all’ drafted the amendment to be narrowly tailored to address the fact pattern at applies to retirement annuities. It argues that “[t]he legislature could have v. Town of Bedford, 154 N.H. 393, 395 (2006) (quotation omitted). our task in interpreting statutes “is to determine legislative intent.” Goldstein Union Leader contends that regardless of legislative history, the statute particular construction of the statute, we will adopt that construction, since history,” among other interpretive aids). Where that history plainly supports a necessitates an investigation beyond the statute to the relevant legislative Town of Epsom, 136 N.H. 511, 514 (1992) (noting that “inherent ambiguity Barksdale v.

not to regular retirement annuities. . . . to incentive payments made to employees to bring about their retirement,” supports NHRS’s argument that RSA 91-A:4, I-a was intended to apply “only N.H.S. Jour. 501 (1997) (emphasis added). The legislative history clearly p. 6 Lamy v. N.H. Pub. Utils. Comm’n

interest in nondisclosure and the individual’s privacy interest in

balance the public interest in disclosure against the government about the conduct and activities of their government. Finally, we In Mans Disclosure of the requested information should inform the public

Mans “analogous to the petitioner’s request for the names and salaries of teachers in The trial court found Union Leader’s request for retirement records

(citation omitted); see RSA ch. 94 (2001 & Supp. 2010). individual dignity or the efficient management of the State system.” Id. at 163 Next, we assess the public’s interest in disclosure. available to the public or disclosed voluntarily without significant damage to State and municipal, have been commonly published by statute, or made that for many years in this State salaries of public officials and employees, privacy.” Id. at 164 (quotations and ellipsis omitted). In so holding, we “noted is not a disclosure of those intimate details which would constitute invasion of the determination of the legislature that disclosure of salaries of schoolteachers the disclosure of which might harm the individual” and “conclude[d] that it was “erred in failing to recognize any privacy interest in a retiree’s annual benefit.” determined that “[t]he salaries of public employees . . . are not intimate details schoolteacher in the Lebanon School District. Mans the trial court erroneously truncated the analysis at the first factor because it, 112 N.H. at 161. We resident taxpayer of Lebanon to disclosure of the name and salary of each minimal public interest in this matter.” In other words, NHRS contends that failing to recognize the privacy interest at stake,, we addressed whether the Right-to-Know Law entitled a and failing to “assess[] the NHRS argues that the trial court erred in conducting this analysis by disclosure was mandatory. benefits would “not invade any privacy interest” and therefore ruled that .” It concluded that disclosure of retirees’ names and the amount of their

by an objective standard and not by a party’s subjective expectations . . . .” Id stake, the Right-to-Know Law mandates disclosure.. “Whether information is exempt from disclosure because it is private is judged would be invaded by the disclosure. If no privacy interest is at First, we evaluate whether there is a privacy interest at stake that, 152 N.H. 106, 109 (2005) (citations omitted).

privacy under RSA 91-A:5, IV, we conduct a three-step analysis: determining whether the release of public records would entail an invasion of not be disclosed.” p. 7 Mans v. Lebanon School Bd., 112 N.H. 160, 162 (1972). In Mans NHRS further contends that retirees differ from the schoolteachers in

that private information. Thus, we are not persuaded by NHRS’s argument. information such as disability, disclosure of the amount does not reveal any of that while the amount of a retiree’s benefit may be affected by private NHRS further relies on Lamy information about any retiree’s medical or disabling condition. We conclude

divorce decrees are already public records and that it is not seeking keeping . . . private.” Union Leader counters that judicial orders such as divorce, separation or disability, which the retiree “ha[s] a strong interest in particular and personal family and financial situation,” such as the retiree’s as the amount of one’s retirement benefit may depend on an individual’s It argues, for example, that “[r]etirement benefits . . . differ from salaries

customers of Public Service Company of New Hampshire (PSNH) contained in a Law did not require disclosure of the names and street addresses of residential

support. that this claim is speculative at best given the meager evidence presented in its fraudulent solicitations and scams.” We agree with Union Leader, however, because they “are more likely to be elderly and specifically targeted by

and retirees, and . . . between salaries and retirement benefits.” recognize significant differences “between employees of a governmental entity Professional Firefighters. Specifically, it argues that the trial court failed to critically different from the employees’ salaries at issue in p. 7 Mans and NHRS acknowledges the holdings of Mans (quotation omitted). NHRS argues that the information at issue here is Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 554 (1997) or material and its relationship to the basic purpose of the Right-to-Know Law.” claimed on privacy grounds, we examine the nature of the requested document Nevertheless, that does not end our inquiry. Where, as here, an “exemption is construe that exemption broadly.” Prof’l Firefighters, 159 N.H. at 708. information and would be subject to the exemption at issue if we were to “acknowledged[, in Mans,] that salary information generally constitutes private interest in such information.” To a certain extent, we agree, having that neither case “stands for the proposition that there is absolutely no privacy with respect to the salaries of employees of governmental entities, but contends and Professional Firefighters

individual salary information than traditional public employees.” Id. at 708. conceded governmental entity, had “no greater privacy interest regarding their concluded that the private employees of the Local Government Center, a information” of its employees. Prof’l Firefighters, 159 N.H. at 710. We the Local Government Center to disclose the “names and individual salary Government Center, 159 N.H. 699 (2010), where we affirmed an order requiring We followed p. 7 Mans in Professional Firefighters of New Hampshire v. Local activities of their government.” Union Leader Corp. v. City of Nashua p. 8 when it “does not serve the purpose of informing the citizenry about the We have noted that disclosure of requested information is not warranted

‘derivative use of the information.’” the NHRS is up to” and asserts that “[a]t most, the Union Leader seeks with financial information does not tell the public anything directly about what 8 minimal public interest in this matter.” It contends that “[d]isclosure of names NHRS next argues that the trial court erred by failing to “assess[] the

employees’ interest in keeping the amount of their salaries private. benefits, but conclude that it is not appreciably different from public information associating their names with the amount of their retirement will address it there. In sum, we find that retirees have a privacy interest in We find this argument more applicable to the second prong of the analysis and from salaries which may be affected by the action of a local governing body.” court failed to recognize that retirement annuities are “fundamentally different NHRS also argues that in finding no privacy interest at stake, the trial

of retirement benefits that named retirees receive “does not inform the public 473, 477 (1996) (quotation omitted). NHRS argues that disclosing the amount

In Lam

expose its retirees to annoyance and abuse”). association’s argument that disclosure of retirees’ and retirement benefits “will the California Public Records Act request “diminishe[d] the force” of retirement App. 2011) (noting that the exclusion of addresses and other contact data from Employees’ Retirement Ass’n v. Superior Ct., 130 Cal. Rptr. 3d 540, 555 (Ct. fact adds little weight to the retirees’ privacy interest. See Sonoma County names and home addresses are often publicly available,” id., we conclude that Lamy inapposite. Furthermore, while “[w]e are cognizant . . . that individual and brackets omitted). Because addresses were not requested here, we find disclosure serves as a conduit into the sanctuary of the home.” Id. (quotation person’s name and address implicates that person’s privacy rights because the inclusion of addresses was significant in Lamy, as we noted that “disclosing a interest in names and financial information without addresses. Indeed, the associated with names and addresses, we did not assess the strength of an information in a Right-to-Know request would strengthen the privacy interest information.” Id. at 110. Thus, while we opined that inclusion of financial addresses are associated with other private information, such as financial residential customers in this case is weaker than in cases where names and

y, we stated: “We are cognizant that the privacy interest of

the stakes and implicates an individual’s privacy interest.” a request for financial information, we recognized that such information “raises Lamy, 152 N.H. at 107, 113. NHRS asserts that although Lamy did not involve report filed by PSNH with the New Hampshire Public Utilities Commission. retirement when he only served as a public servant for a year? p. 9 not right, or how can it be that he makes that much money in his is, if the person is named, then the public can know, wait, that’s accordance with the formula, and the example that’s coming to me

anyone to know whether those payments are calculated in Lamy [W]ithout knowing the name [of the annuitant], it’s impossible for

discover additional information about the [public entity]. because of how [it] can be used by the petitioner, or others, to

before the trial court, Union Leader’s attorney explained: meaningful access to information about the activities of NHRS.” At the hearing pieces of information missing in order for the public to have effective, interest in the disclosure of the [requested information] solely source; rather, it asserts that “[t]he names of the annuitants are the necessary information outside the [public entity’s] files. The public has an hoping to use the information to obtain additional material from an outside others, may be able to use that information to obtain additional Union Leader counters that it does not seek a derivative use as it is not information itself, but rather from the hope that the petitioner, or information] stems not from the disclosure of the . . . [withheld]

We explained the concept of derivative use in Lamy that Union Leader seeks, at most, derivative use of the requested information. correctly or following its formula for calculating benefits. Thus, NHRS argues amounts alone, sheds light upon whether NHRS is calculating benefits It is not immediately obvious, however, how disclosure of names and benefit whether it has been calculated correctly with respect to individual members.” whether its formula for calculating retirement benefits is being followed, or proposes to disclose, without its members’ names, sheds absolutely no light on Union Leader, on the other hand, argues that the aggregate data “NHRS disclosure, it is entitled to little weight. Id The asserted public interest in disclosing [the requested. at 113. derivative use constitutes the only public interest in the information’s , 152 N.H. at 111 (quotation, citation and brackets omitted). Where

879 F.2d at 874. We therefore find it inapposite. for annuitants’ names and addresses. National Ass’n of Retired Federal Emp., however, did not involve a request for individual annuity amounts but rather implicate a public interest.” National Association of Retired Federal Employees, data “might be of public interest, identifying individual recipients did not 879 F.2d 873 (D.C. Cir. 1989), for the proposition that while aggregate annuity NHRS.” It cites National Association of Retired Federal Employees v. Horner, as to the structure, duties, management, determinations or procedures of the public interest in such a use. See p. 10 potential governmental error or corruption. We cannot say that there is no It appears, then, that Union Leader seeks to use the information to uncover

steps and research. derivative use. It’s very direct use. It doesn’t require additional the information that’s out there in the public already isn’t And I’d submit that combining the publication of the name with MS. SULLIVAN: There would be no way of knowing that.

thereof. Public employers contribute to the fund used to pay annuities. See benefits, that is not dispositive of the public’s interest in knowing the amount him separate and apart from the information contained in the list. NHRS. Even assuming NHRS has no discretion to alter the calculation of have suspicion about because of information they’d know about information sought by Union Leader reveals nothing about the operations of whether the fellow that’s at the top is someone that they would distinction to argue that because NHRS could not alter the formula, the Whereas, if they get a list [without names], they just don’t know a member’s creditable service.” In its pleadings below, NHRS used this about that individual, will assist them in them saying, wait. calculation based on two variables, a member’s average final compensation and local governing body. Rather, the amount of a retirement benefit is a formulaic “fundamentally different from salaries which may be affected by the action of a

and that the name, given the public’s perhaps other knowledge

As noted above, NHRS also argues that retirement annuities are

for county employees” and “[a]s such, the taxpaying public has substantially association] administers is in the end a form of deferred public compensation came directly from contributions of public employers, “the program [the that even though only twenty percent of benefits paid by retirement association Sonoma County Employees’ Retirement Ass’n, 130 Cal. Rptr. 3d at 555 (noting some interest in knowing the amounts and to whom they are paid. See public funds are used to pay the annuities at issue, we conclude the public has Right-to-Know Law.” Prof’l Firefighters them in making an assessment as to whether something is amiss,, 159 N.H. at 709. To the extent that is essential to the transparency of government, the very purpose underlying the right to know is the right to know information that is -- assists how a public body is spending taxpayer money in conducting public business RSA 100-A:16, II (regarding the State annuity accumulation fund). “[K]nowing

THE COURT: So, you’re essentially saying that the public’s

favoritism.”). scrutiny can expose corruption, incompetence, inefficiency, prejudice and

. . . . p. 11 11

See by failing to file a cross-appeal. We agree and will not consider the request. attorney’s fees and costs. NHRS counters that Union Leader waived that claim Finally, Union Leader seeks reversal of the trial court’s denial of its

DALIANIS, C.J.