2010-412 David Montenegro v. City of Dover

David Montenegro, by brief, pro

No. 2010-412

Strafford

equipment; (2) the recording capabilities for each piece of equipment; (3) the seeking the disclosure of: (1) the precise locations of the City’s surveillance in the record. The petitioner filed a request with the City on January 14, 2010, The following facts are recited in the trial court’s order or are supported

Superior Court (Brown HICKS, J. The petitioner, David Montenegro, appeals an order of the

Allan B. Krans

and remand. of the respondent, the City of Dover (City). We affirm in part, reverse in part pertaining to certain surveillance equipment and procedures under the control RSA ch. 91-A (2001 & Supp. 2010), requesting disclosure of information , J.) denying his petition under the Right-to-Know Law,

THE SUPREME COURT OF NEW HAMPSHIRE , of Dover, by brief, for the City of Dover.

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 p. 2 22 as 2

Information Act (FOIA), 5 U.S.C. §§ 55 p. 2 2 et On appeal, the petitioner argues that: (1) the federal Freedom of

buildings have the right to know how those activities are monitored; and (6) the trial court held a hearing at which the City provided the court with a Vaughn under RSA 91-A:5, IV; (5) people conducting their private affairs in public seeking the information he had requested from the City. On March p. 2 26, the allowed to monitor the surveillance recordings are not exempt from disclosure Subsequently, the petitioner filed a petition with the superior court, endanger the life or physical safety of any individual; (4) the job titles of those interfere with enforcement proceedings, risk circumvention of the law, or disclosure of the information requested could not reasonably be expected to to a “higher standard of public accountability” than does the FOIA; (3) of the New Hampshire Constitution and RSA chapter 91-A hold the government governmental records pursuant to our Right-to-Know Law; (2) Part I, Article 8 from remote locations”; the “intent of the Dover Police not seq., does not control requests for each site; “[t]he capability and intent of the Dover Police to monitor cameras cameras are, or are proposed to be, sited; the number of cameras in or around 2010). that it disclosed to the petitioner: the general location and buildings where disclosure as “internal personnel practices” pursuant to RSA 91-A:5, IV (Supp. expected to risk circumvention of the law.” Nevertheless, the City represents the job titles of those who monitor the surveillance recordings exempt from prosecutions.” In addition, the City stated that “disclosure could reasonably be operational, and the retention time for any recordings. The court also found prosecutions, or would disclose guidelines for law enforcement investigations or equipment, the specific time periods each piece of equipment is expected to be disclose techniques and procedures for law enforcement investigations or surveillance equipment, the type of recording capabilities for each piece of On January 21, the City denied his request on the basis that “it would its burden of justifying withholding the precise locations of the City’s (discussing use of Vaughn index). The court found that the City had sustained Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 548-49 (1997) reason for nondisclosure. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); index describing each document withheld or redacted, and justifying the

security equipment”; and when the equipment was installed. vendors installing the security equipment”; “[t]he contracts for installing the in law enforcement; “[t]he cost of the security equipment”; “[t]he names of the cameras on a regular basis,” but to view them as needed when it would assist

recordings. time for any recordings; and (5) the job titles of those who monitor the specific time periods each piece of equipment is operational; (4) the retention p. 3 3

In Lodge

required by RSA [chapter] 91-A with regard to” such files. Id. At the time, the the FOIA test “provides a good standard to effectuate the balance of interests with “police investigatory files.” Lodge, 118 N.H. at 577. We determined that 1975) . . . for the guidance of our judges who may be faced with” cases dealing , we adopted “the six-prong test of 5 U.S.C. § 552(b)(7) (Supp.

sought “no investigatory information.” law enforcement investigation or prosecution.” He asserts that his request by doing so, it “appears to have treated the requested information as part of a Murray and its predecessor, Lodge v. Knowlton, 118 N.H. 574 (1978), because, The petitioner further argues that the trial court erred in applying

interests involved.” Murray, 154 N.H. at 581 (quotation omitted). especially in understanding the necessary accommodation of the competing similar acts, because they are in pari materia, are interpretively helpful, to-Know Law, we “look to the decisions of other jurisdictions, since other application of federal law. Rather, in interpreting and applying our own Rightone we adopted from the FOIA, use of the Murray test does not constitute an 154 N.H. 579, 582 (2006)].” While the test employed in Murray which is a question of law that we review de is admittedly exemptions (A), (E), and (F) as laid out in Murray [v. N.H. Div. of State Police “Resolution of this case requires us to interpret the Right-to-Know Law,, case, but rather concluded that the requested information “fit[] squarely within Right-to-Know Law. The trial court, however, did not apply the FOIA in this “does not control” requests for New Hampshire governmental records under the The petitioner first argues that the trial court erred because the FOIA

restricted. Id.; see N.H. CONST. pt. I, art. 8. access to governmental proceedings and records shall not be unreasonably helps further our state constitutional requirement that the public’s right of 149 N.H. 4 p. 3 37, 438 (2003) (quotation omitted). Thus, the Right-to-Know Law accountability to the people.” N.H. Civil Liberties Union v. City of Manchester, the actions, discussions and records of all public bodies, and their the Right-to-Know Law is to ensure both the greatest possible public access to purpose sought to be advanced by the statutory scheme. Id. “The purpose of legislature’s intent and to interpret statutory language in light of the policy or Pierce, 160 N.H. 354, 360 (2010). This enables us to better discern the rather within the context of the statute as a whole. In the Matter of Scott & Id. (quotation omitted). We do not consider words and phrases in isolation, but will consider legislative history only if the statutory language is ambiguous.” interpreting a statute, we first look to the plain meaning of the words used and Transp., 161 N.H. 746, 752 (2011) (quotation and ellipsis omitted). “When novo.” ATV Watch v. N.H. Dep’t of

government violates Part I, Article 8 of our constitution. operation of hidden cameras for routine surveillance of the public by local p. 4 Murray

endanger the life or physical safety of any individual . . . .” circumvention of the law, or (F) could reasonably be expected to

prosecutions if such disclosure could reasonably be expected to risk

disclose guidelines for law enforcement investigations or 4

for law enforcement investigations or prosecutions, or would

confidential source, (E) would disclose techniques and procedures adopted in p. 4 Murray, an agency need not establish that the materials are U.S.C. § 552(b)(7) (2006). Thus, to withhold materials under the modified test clarify that in Murray, we intended to adopt the amended test set out in 5 [compiled] for law enforcement purposes.” Murray, 154 N.H. at 582. We now requested documents [were] investigatory in nature and that they were because “[t]he petitioner [did] not challenge the trial court’s findings that the Recitation of this apparent vestige was of no consequence in Murray, however, compiled for law enforcement purposes.” Id.; see Lodge, 118 N.H. at 576-77. initially show that the requested documents are: (1) investigatory; and (2) case; namely, that “[t]he entity resisting disclosure under exemption (A) must amended FOIA test, it applied a requirement from the pre-amendment Lodge security intelligence investigation, information furnished by a The petitioner correctly points out that even though Murray quoted the criminal investigation or by an agency conducting a lawful national added). compiled by criminal law enforcement authority in the course of a a confidential basis, and, in the case of a record or information, 154 N.H. at 582 (quoting 5 U.S.C. § 552(b)(7) (2002)) (emphasis authority or any private institution which furnished information on confidential source, including a State, local, or foreign agency or

“records or information compiled for law enforcement purposes

purposes.” 5 U.S.C. § 552(b)(7) (2006); see now available to all “records or information compiled for law enforcement (D) could reasonably be expected to disclose the identity of a “investigatory” and inserting the words “or information,” so that protection is expected to constitute an unwarranted invasion of personal privacy, In 1986, Congress amended 5 U.S.C. § 552(b)(7) by deleting the word to a fair trial or an impartial adjudication, (C) could reasonably be with enforcement proceedings, (B) would deprive a person of a right records or information (A) could reasonably be expected to interfere only to the extent that the production of such law enforcement

this amended test, which exempts: of Homeland Sec., 488 F.3d 178, 184 (3d Cir. 2007). In p. 4 Murray, we employed

for law enforcement purposes.” Id. at p. 5 576 (quotation omitted). test exempted, under certain circumstances, “investigatory records compiled 5

In New York Civil Liberties Union v. Department of Homeland Security

771 F. Supp. 2d 289 (S.D.N.Y. 2011), the plaintiff did not contest that the ,

techniques as they are being employed.” Id In Lewis-Bey v. United States Department of Justice. (quotations and ellipsis omitted). investigations by allowing potential subjects to anticipate and identify such specific techniques” and thus “could lead to decreased effectiveness in future disclosure “would illustrate the agency’s strategy in implementing these correctly withheld, the court apparently accepted ATF’s assertion that 138 (quotation and ellipsis omitted). In holding that this information was specific location where they were employed.” Lewis-Bey, p. 5 595 F. Supp. 2d at under which the techniques were used, the specific timing of their use, and the “details of electronic surveillance techniques, specifically, the circumstances Tobacco, Firearms and Explosives (ATF) properly withheld under section (E) 120 (D.D.C. 2009), the court addressed whether the Bureau of Alcohol, , 595 F. Supp. 2d

Pub. Utils. Comm’n, 1 p. 5 52 N.H. 106, 108 (2005), we agree with the City. Looking again to cases construing the FOIA for guidance, see Lamy v. N.H. provide them with potential countermeasures to circumvent such practices. monitoring techniques law enforcement routinely implements, and thus surveillance procedures would allow suspects to draw conclusions about which commission of crime.” It argues that disclosure of detailed law enforcement the retention time for any recordings “would provide a roadmap for the specific time periods each piece of equipment is expected to be operational, and that the requested records were compiled for law enforcement purposes. See of cameras, the type of recording capabilities for each piece of equipment, the safety of any individual. The City counters that release of the precise locations Here, the petitioner does not challenge the trial court’s implicit finding proceedings, risk circumvention of the law or endanger the life or physical Murray test, contending that disclosure would not interfere with enforcement requested was exempt from disclosure under sections (A), (E), and (F) of the The petitioner challenges the trial court’s finding that the information he

Therefore, the City has satisfied the initial prong of the test. made all findings necessary to support its decree” (quotation omitted)). (1982) (noting “in the absence of specific findings, a court is presumed to have Demers Nursing Home, Inc. v. R.C. Foss & Sons, Inc., 122 N.H. 7 p. 5 57, 761

applying the Murray test. encompass investigatory files, we conclude that the trial court did not err in Accordingly, even accepting the petitioner’s assertion that his request did not Justice, 730 F. Supp. 2d 22 p. 5 5, 233 (D.D.C. 2010) (quotation omitted). of one of the subparts of” the test. Richardson v. United States Dept. of for law enforcement purposes, and that the material satisfies the requirements investigatory, but need only “establish that the records at issue were compiled p. 6 6

constitute invasion of privacy.” Id. at 440 (quotation omitted). Here, the court exemption in RSA 91-A:5, IV (2001) for records “whose disclosure would effort to withhold the photographs, the City of Manchester relied on the Union are dissimilar to those presented in this case. See id. at 439-40. In an suspects.” Id law.” Murray. at 441. Moreover, the issues of law raised in N.H. Civil Liberties part of police investigations, including pictures of victims, witnesses and “such disclosure could reasonably be expected to risk circumvention of the disclose guidelines for law enforcement investigations or prosecutions” and The “trial court explicitly exempted from disclosure photographs that . . . were Manchester Police Department. N.H. Civil Liberties Union procedures for law enforcement investigations or prosecutions, or would, 149 N.H. at 438. photographs of individuals stopped, but not arrested, that were taken by the Accordingly, the release of such information “would disclose techniques and N.H. Civil Liberties Union activity with the ability to adjust their behaviors in an effort to avoid detection., the petitioner sought access to consensual [that] were considered disclosable information” in that case. circumvention of the law by providing those who wish to engage in criminal We disagree. In the information he requests is analogous to the “police surveillance tactics is of such substantive detail that it could reasonably be expected to risk mandates disclosure of the information he seeks. He maintains that providing retention time for any recordings are exempt from disclosure. This information time periods each piece of equipment is expected to be operational, and the The petitioner nevertheless contends that N.H. Civil Liberties Union equipment, the recording capabilities for each piece of equipment, the specific We conclude that the precise locations of the City’s surveillance, 154 N.H. at 582 (quotation omitted).

Id. surveillance could be reasonably expected to risk circumvention of the law.” “satisfied that documents which disclose the location and timing of such Respect and Kindness, p. 7 730 F. Supp. 2d at 200. The court was therefore of the surveillance techniques are unknown to them.” Showing Animals on Wildlife Refuges likely know that they are subject to surveillance, the details F. Supp. 2d 180 (D.D.C. 2010), noted that “although trespassers and poachers Animals Respect and Kindness v. United States Department of the Interior, 730 thereby circumventing the law.” Id. at 292. Similarly, the court in Showing their disclosure could unquestionably aid criminals in evading detection and uses cameras . . . , the specific locations of those devices are unknown, and court disagreed, noting that “although it is publicly known that . . . [the NYPD] publicly known. N.Y. Civil Liberties Union, 771 F. Supp. 2d at 290, 291. The risk of circumvention because NYPD’s use of security cameras was already used to circumvent the law, but argued that disclosure would not increase the Lower Manhattan” by the New York City Police Department (NYPD) could be information it sought regarding “the placement of surveillance cameras in 7

personnel practices.” Hounsell, 154 N.H. at 4 (quotation omitted). investigating claimed employee misconduct was a record pertaining to “internal Precinct, 154 N.H. 1 (2006), we found that a report generated in the course of A:5, IV in Union Leader Corp. v. Fenniman internal personnel practice.” Id. Similarly, in Hounsell v. North Conway Water We first applied the “internal personnel practices” exemption of RSA 91- leading up to internal personnel discipline, a quintessential example of an ‘pertain[] to internal personnel practices’ because they document procedures within the plain meaning of the statutory language: “These files plainly themselves quite broad,” id., we concluded that the investigatory files fell exemptions narrowly. Murray that “the plain meanings of the words ‘internal,’ ‘personnel,’ and ‘practices’ are personnel practices,” under RSA 91-A:5, IV. Id We construe provisions favoring disclosure broadly, while construing. (quotation omitted). Finding such files were exempt from disclosure as “[r]ecords pertaining to internal harassing phone calls. Fenniman, 136 N.H. at 625-26. We concluded that investigation of a Dover Police Department lieutenant accused of making the defendants sought to withhold documents compiled during an internal

heavy burden to shift the balance toward nondisclosure. Id. avoid disclosure of material under the Right-to-Know Law, that entity bears a

91-A:5, IV. RSA 91-A:5, IV as records pertaining to “internal personnel practices.” RSA equipment. The court found that the information was properly withheld under disclosure the job titles of any persons who monitor the City’s surveillance The petitioner next contends that the trial court erred by exempting from

applied here and Part I, Article 8 of the New Hampshire Constitution. access to governmental records, we find no conflict between the exemption 154 N.H. at 582 (quotation omitted), is an unreasonable restriction on public that “could reasonably be expected to risk circumvention of the law,” Murray, we cannot conclude that an exemption from disclosure for certain information unreasonably restricted.” N.H. CONST. pt. I, art. 8 (emphasis added). Because public’s right of access to governmental proceedings and records shall not be public accountability than does the FOIA. Part I, Article 8 provides that “the Constitution and RSA chapter 91-A hold government to a “higher standard” of The petitioner also contends that Part I, Article 8 of the New Hampshire

applicability of the other exemptions. properly withheld under section (E), we need not further analyze the and (F) of the Murray test. In light of our ruling that these records were upheld the withholding of the requested information under exemptions (A), (E), buildings to conduct private affairs. Examples of this include

p. 8 is particularly compelling when private parties utilize public in which government conducts surveillance of the public, this right While all New Hampshire citizens have a right to know the manner

privacy rights of private parties. He argues: law,” that the City’s failure to disclose the requested information implicates the The petitioner next contends, making reference to “Federal constitutional

of an internal personnel practice” in Fenniman internal personnel discipline, which we found to be “a quintessential example practice[]” within the meaning of RSA 91-A:5, IV. They are not related to monitor the City’s surveillance equipment are not an “internal personnel In light of the foregoing, we conclude that the job titles of persons who equipment. withholding of job titles of persons who monitor the City’s surveillance 1265. Accordingly, we reverse the trial court’s ruling with respect to the within the contemplation of Exemption 2 of the FOIA. Milner, 131 S. Ct. at discipline,” which, among other things, the Supreme Court noted to be matters Nor are they akin to “such matters as hiring and firing, work rules and

help store explosives at a naval base in Washington State.” Id. that Exemption 2 “does not stretch so far” as to shield “data and maps used to the Supreme Court rejected the D.C. Circuit Court’s interpretation and held enforcement surveillance techniques.” Milner, 131 S. Ct. at 1262. In Milner, Exemption 2 to shield a manual designed to train Government agents in law 131 S. Ct. 125 p. 9 9 (2011), the D.C. Circuit Court had “approved the use of F.2d 1051 (D.C. Cir. 1981), abrogated by Milner v. Department of the Navy, footnote omitted). In Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 agency regulations or statutes.” Id. at 1263 (quotations, citation, brackets and internal materials whose disclosure would significantly risk circumvention of D.C. Court of Appeals that “Exemption 2 should also cover any predominantly benefits.” Id. at 1265. In so doing, it rejected an interpretation adopted by the matters as hiring and firing, work rules and discipline, compensation and . . . They concern the conditions of employment in federal agencies – such are its rules and practices dealing with employee relations or human resources. omitted). The Court ruled that “[a]n agency’s ‘personnel rules and practices’ Milner v. Department of Navy, 131 S. Ct. 1259, 1262 (2011) (quotation related solely to the internal personnel rules and practices of an agency.” U.S.C. § 552(b)(2) (2006), “which shields from compelled disclosure documents Supreme Court’s recent interpretation of Exemption 2 under the FOIA, see 5 interpreting the FOIA for guidance, we find instructive the United States the context of employee misconduct or discipline. Looking again to cases We have not, however, had occasion to interpret RSA 91-A:5, IV outside 9

Affirmed in part; reversed in

DALIANIS, C.J.