2011-502, 38 Endicott Street North, LLC v. State Fire Marshall, New Hampshire Division of Fire Safety

The petitioner, 38 Endicott Street North, LLC, appeals an order

___________________________ general, on the memorandum of law and orally), for the respondent. Michael A. Delaney, assistant attorney THE SUPREME COURT OF NEW HAMPSHIRE

Moeckel on the brief and orally), for the petitioner.

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as an in

p. 2 The petitioner also argues that the trial court erred in denying its requests for

could reasonably be expected to interfere with law enforcement proceedings. the materials were compiled for law enforcement purposes and that disclosure On appeal, the petitioner argues that the trial court erred in ruling that

petitioner’s request for attorney’s fees and costs. exempt from the Right-to-Know Law, denied the petition, and also denied the a hearing on June 7, 2011, the trial court ruled that the withheld records were

determined could be segregated from the records asserted to be exempt. After

2011, the Fire Marshall disclosed additional materials that the FMO had

the material was not compiled “for law enforcement purposes.” On June 6, argued that the Fire Marshal is not a law enforcement officer and, therefore, exemption for records “compiled for law enforcement purposes.” The petitioner

undisclosed materials are excluded from the Right-to-Know Law under the

bodies, and their accountability to the people.” Murray v. N.H. Div. of State

requested attorney’s fees and costs. The Fire Marshal responded that the RSA chapter 91-A, the New Hampshire Right-to-Know Law. The petitioner also directing the Fire Marshal to produce the undisclosed materials pursuant to

effectuate these statutory and constitutional objectives. Murray On May 6, 2011, the petitioner filed a petition seeking an injunction

proceedings and records shall not be unreasonably restricted. Id

91-A:4. “The purpose of the Right-to-Know Law is to ensure both the greatest inspect . . . and copy” all public records, with certain limited exceptions. RSA 581. The Right-to-Know Law guarantees “[e]very citizen . . . the right to, 154 N.H. at to-Know Law with a view to providing the utmost information in order to best unrestricted access to public records, we resolve questions regarding the Right- I. The Murray Exemption N.H. CONST. pt. I, art. 8. Although the statute does not provide for all other materials because the investigation was ongoing. disclosing the Incident Initiation Report and its supplement, but withholding.; see also constitutional requirement that the public’s right of access to governmental Police, 154 N.H. 579, 581 (2006) (quotation omitted). It thus furthers our state

well as in denying its motion for attorney’s fees and costs. letter demanding a response. On May 5, 2011, the Fire Marshal replied, camera review of the materials or the compilation of a Vaughn index, as

The petitioner did not receive a response, and on May 3, 2011, sent a second materials) related to the September 17th fire and the “investigation thereof.” a letter requesting to inspect all records, information, and documents (the

Marshal, head of the New Hampshire Division of Fire Safety (the Fire Marshal), On April 8, 2011, the petitioner sent the respondent, the State Fire p. 3 Murray

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

disclosure could reasonably be expected to risk circumvention of the law,

guidelines for law enforcement investigations or prosecutions if such for law enforcement investigations or prosecutions, or would disclose by a confidential source, (E) would disclose techniques and procedures

lawful national security intelligence investigation, information furnished

the course of a criminal investigation or by an agency conducting a

law enforcement purposes.” Montenegro

record or information compiled by criminal law enforcement authority in which furnished information on a confidential basis, and, in the case of a State, local, or foreign agency or authority or any private institution

accord Abramson, 456 U.S. at 622. Second, if the entity meets this threshold

avoid disclosure must establish that the requested materials were “compiled for accord FBI v. Abramson, 456 U.S. 615, 622 (1982). First, the entity seeking to exemption requires a two-part inquiry. See Montenegro, 162 N.H. at 646; , 154 N.H. at 582 (quoting 5 U.S.C. § 552(b)(7)). Thus, the p. 3 Murray

expected to disclose the identity of a confidential source, including a

unwarranted invasion of personal privacy, (D) could reasonably be impartial adjudication, (C) could reasonably be expected to constitute an embodied in exemption 7 of the FOIA at 5 U.S.C. § 552(b)(7) (2006). Lodge v. proceedings, (B) would deprive a person of a right to a fair trial or an “(A) could reasonably be expected to interfere with enforcement

production of such records or information: purposes” are exempt from disclosure, but only to the extent that the of Information Act (FOIA). See p. 3 Murray statutes for guidance, including federal interpretations of the federal Freedom exemption, “records or information compiled for law enforcement to exemption 7 of the FOIA). Under the exemption, which we have deemed the to the decisions of other jurisdictions interpreting similar provisions of other amended the test adopted in Lodge to be consistent with the 1986 amendment v. City of Dover, 162 N.H. 641, 645-46 (2011) (explaining that in Murray, we Knowlton, 118 N.H. 574, 576-77 (1978); Murray, 154 N.H. at 582; Montenegro

requests for law enforcement records or information, we have adopted the test Although RSA chapter 91-A does not explicitly address the treatment of

Comm’n, 152 N.H. 106, 111 (2005).

interpreting provisions of the New Hampshire Right-to-Know Law, we often look “bears a heavy burden to shift the balance toward nondisclosure.” Id. In Id. A public entity seeking to avoid disclosure under the Right-to-Know Law provisions favoring disclosure broadly, while construing exemptions narrowly. its application of the law to undisputed facts de novo. See id. We construe We review the trial court’s interpretation of the Right-to-Know Law and p. 4 4

circuits have adopted a per agency,” federal courts have applied a less demanding standard. Several purposes, federal courts follow “several overarching principles.” Tax Analysts In assessing whether records were compiled for law enforcement agency seeking to avoid disclosure. Tax Analysts functions,” federal courts apply a different standard depending on the type of enforcement and agencies with both law enforcement and administrative

enforcement officers enforcement purposes.” See

law enforcement agencies to establish a rational nexus between the records Dept., 611 F.2d 738, 7 p. 4 48 (9th Cir. 1979). The “rational nexus test” requires Where the agency claiming the exemption is primarily a “law enforcement 184-86 (3d Cir. 2007); Church of Scientology of California, Etc. v. United States Cir. 1982); Abdelfattah v. United States Dept. of Homeland Sec., 488 F.3d 179, function is law enforcement. See Pratt v. Webster, 673 F.2d 408, 413-21 (D.C. se rule, but which nonetheless gives deference to agencies whose primary nexus” test, which requires agencies to meet a higher burden than does the per distinction between agencies whose principal function is criminal law Bell, 596 F.2d 468, 472-76 (1st Cir. 1979). Other circuits employ a “rational Cir. 1994); Williams v. F.B.I., 730 F.2d 882, 883-86 (2d Cir. 1984); Irons v.

enforcement purposes on the fact that the Fire Marshal “is indeed a law se rule, under which all records compiled by law trial court based its determination that the records were compiled for law

F. Supp. 11, 17 (D.D.C. 199 p. 4 4). Third, although the exemption “makes no analysis of the authorized activities of the agency involved.” Kay v. F.C.C., 867 Second, determining whether this requirement is satisfied “demands careful enforcement purposes” includes both civil and criminal matters. Id. at 77. v. I.R.S., 294 F.3d 71, 76-77 (D.C. Cir. 2002). First, the phrase “law focused upon whether the FMO is a law enforcement agency. Similarly, the

have never before addressed how to determine whether records were “compiled See Montenegro, 162 N.H. at 6 p. 4 45-46; Murray, 154 N.H. at 582. Because we information compiled, by any type of agency, for law enforcement purposes.

enforcement purposes. Below and on appeal, both parties have primarily We first consider whether the undisclosed records were compiled for law

A. Compiled for Law Enforcement Purposes

Marshal has not satisfied either requirement. accord Abramson, p. 4 456 U.S. at 622. Here, the petitioner argues that the Fire the six enumerated adverse consequences. Montenegro, 162 N.H. at 646; requirement, it must then show that releasing the material would have one of p. 5 We have never addressed whether we follow the per

document[s].” Church of Scientology of California within its sphere of enforcement authority in compiling the particular

enforcement purposes”).

is primarily a law enforcement agency.” Jordan “There appears to be no defined test for determining whether an agency tax code that relate to qualification for tax exempt status”); cf

a mixed-function agency “must demonstrate that it had a purpose falling agency’s statutory duties to make the determination. See

agencies bear in establishing that records or information were compiled for law court declined, however, to advance any “theory as to what burden such [presumption granted to law enforcement agencies under the] per se rule”; Pol. Rev. on Race & Urb. Is. v. Weinberger, 502 F.2d 370, 373 (D.C. Cir. 1974)

the FMO is “primarily a law enforcement agency” or a “mixed-function agency.” “performs a law enforcement function by enforcing the provisions of the federal (holding that the Exempt Organization division of the Internal Revenue Service Scientology Intern. v. United States I.R.S., 995 F.2d 916, 919 (9th Cir. 1993) requested materials were “compiled for law enforcement purposes.” Generally, Church of clearly is” a law enforcement agency). However, courts appear to examine an United States, 435 F. Supp. 31, 34 (D. Minn. 1977) (stating that the “I.R.S. (“[T]he Postal Service obviously is a mixed-function agency . . . .”); Luzaich v. Birch v. United States Postal Service, 803 F.2d 1206, 1210 (D.C. Cir. 1986)

which approach to follow in this case, however, we must first consider whether rational nexus approach under the Murray exemption. Before determining

approach, where the agency involved is a mixed-function agency, the entity agency has both administrative and enforcement functions.”). Under either

668 F.3d at 1197 n.5 (explaining that under the per se rule, mixed-function enforcement duties, to claim the exemption. See, 611 F.2d at 748; cf. Jordan,

Both the per

of a law enforcement purpose serves as a condition on [the exemption] when an exemption].”); Irons, 596 F.2d at 473 (“At best, we glean that the requirement permits agencies whose primary function is not law enforcement to rely on [the of Justice, 668 F.3d 1188, 1197 n.5 (10th Cir. 2011) (“The per se rule [also]

agencies with mixed functions, encompassing both administrative and law

680 (D. Md. 2000). determinative.” Allnutt v. United States Dept. of Justice, 99 F. Supp. 2d 673, ultimately “it is the purpose of the record, not the role of the agency, that is applying the rational nexus test do consider the type of agency involved, See Church of Scientology of California, 611 F.2d at 748. While courts they seek to withhold and their authority to enforce a statute or regulation. enforcement functions, or neither. See

p. 6 is primarily a law enforcement agency, a mixed-function agency with some law

fact that the FMO is not a “law enforcement agency” does not necessarily mean

See

police, county attorney or local authorities who may assist him whether the Fire Marshal is a “law enforcement officer,” but whether the FMO authority to submit his findings of facts [regarding a particular fire] to the state enforcement purposes.” This argument is misplaced. The relevant issue is not property. RSA 153:11 (2002). The Fire Marshal then has “the option and have the power of arrest, and, therefore, the records were not “compiled for law 6 The petitioner first argues that the Murray

law enforcement agency.” However, contrary to the petitioner’s arguments, the

federal courts routinely apply exemption 7 from the FOIA to non-police entities. does not mean that other entities cannot also invoke the exemption. Further, originally adopted the exemption when the records were sought from the police

possible, the extent of damage to the property, and the insurance upon the because the Fire Marshal is not a “law enforcement officer” since he does not

and efficient operation of fire departments.” RSA 153:4-a, II.

2000). We acknowledge that the FMO cannot be characterized as “primarily a at 919; Heggestad v. U.S. Dept. of Justice, 182 F. Supp. 2d 1, 13 (D.D.C.

not supported by our case law or case law from other jurisdictions. That we

statement of facts relating to the cause and origin of the fire to the extent The petitioner next argues that the FMO is not a law enforcement agency reported in writing to the Fire Marshal, and the report must include: a fire, fire hazards and related matters.” RSA 153:4-a, I. All fires must be office[,] . . . [and assisting] . . . the officials responsible . . . for the organization 1986) (U.S. Postal Service). The Fire Marshal is also responsible for “[coordinating] the activities of his 1993) (U.S. Department of Agriculture); Birch, 803 F.2d at 1209-11 (D.C. Cir. relative to” the prevention of fires and other fire safety matters. RSA 153:4-a, I., e.g., Miller v. United States Dept. of Agriculture, 13 F.3d 260, 263 (8th Cir.

designated by statute. See

police and, therefore, does not apply to non-police entities. This assertion is

enforcing all laws of the state relative to the protection of life and property from

to “[supervise] and [enforce] local laws, bylaws, and ordinances where existent, arrest or prosecution.” Id. (emphasis added). The Fire Marshal is also required

ineligibility for governmental benefits).

shall request . . . .”). The Fire Marshal is “responsible for supervising and the state fire marshal such deputy state fire marshals as the state fire marshal powers and duties); RSA 153:8 (2002) (“There shall be appointed to the office of

a law enforcement function when it makes administrative determinations of (holding that the U.S. Department of Health, Education, and Welfare exercises p. 7 Next, in determining whether an in . . . ‘reasonable belief that this investigation will lead to criminal charges.’”

affidavit from Fire Investigator William Clark in which he stated “that he has

Marshal was acting pursuant to law enforcement duties when it credited an enforcement purposes. First, the trial court implicitly determined that the Fire Marshal’s law enforcement duties and, therefore, were compiled for law

during an investigation into potential criminal wrongdoing pursuant to the Fire

and the trial court’s other findings that the requested records were compiled which the withheld records were compiled. Even so, it is clear from the record In this case, the trial court made no findings regarding the purpose for

primary function is law enforcement.

Accordingly, we need not decide what test we would apply to an agency whose law enforcement functions, as opposed to administrative functions. by showing that the pertinent records were compiled pursuant to the agency’s

B. Adverse Consequences of Disclosure mixed-function agency, the Fire Marshal can satisfy the threshold requirement

the approach taken by most federal courts, under which, as the head of a accordingly, “compiled for law enforcement purposes.” “[assistance] in the matter in arrest or prosecution.” RSA 153:11. We adopt pursuant to the Fire Marshal’s law enforcement functions and were, findings to the state police, county attorney, or local authorities for record before us, compel the conclusion that the records were compiled

Murray consequences would follow from disclosure. This case involves prong (A) of the

that “enforcement proceedings are pending or reasonably anticipated” and that suspecting or finding criminal violations, the Fire Marshal may submit his could interfere with the investigation.” These findings, in combination with the

consider whether the Fire Marshal proved that one of the six adverse

this adverse consequence would result from disclosure, an agency must show the cause, circumstances, and origin of any fire.” RSA 153:18 (2002). Upon nature of the documents, [and] explain[ed] how disclosure of such documents exemption: interference with enforcement proceedings. To show that but also has the authority to further “investigate or cause to be investigated, agency. For example, the Fire Marshal not only receives reports on all fires, Because the Fire Marshal satisfied the threshold requirement, we next

required, the trial court explained that the Fire Marshal “precisely define[d] the

Although the FMO is not “primarily a law enforcement agency,” it clearly

dispositive.

characterization of the agency guides the determination, it alone is not that the records were not “compiled for law enforcement purposes.” While the any case because 1.) this information could be used by anyone that was

p. 8 damage our investigative ability and ultimately the ability to prosecute

to be involved in any possible criminal activity at this time would also b. Revealing contacts and interviews related to leads that are not believed

someone else reported.

own recollection or has been tainted by what they have heard that statements by bringing into question whether what they recall is their credibility of witnesses that become aware of the other witnesses

cover their tracks or to muddy the waters; . . . and 8.) . . . taint the

enable person(s) of interest to use what other witnesses have said to to our interest and make it harder to gain her or his cooperation; 2.) a. Revealing . . . information publicly would 1.) alert person(s) of interest

explained:

forth particular categories of documents. For example, Investigator Clark interfere with the ongoing investigation and any future prosecution, and he set criminal charges.” Investigator Clark also explained how disclosure would

charges might arise or by whom or where.” However, the Murray ongoing . . . [and] I have a reasonable belief that this investigation will lead to Fire Investigator William Clark “does not provide the basis for when or why the establish that proceedings were reasonably anticipated because the affidavit of

Investigator Clark specifically stated that “[t]he [f]ire investigation is open and Clark as evidence that proceedings are reasonably anticipated. In the affidavit, reasonably expected.” According to the petitioner, the Fire Marshal did not In this case, the Fire Marshal provided the affidavit from Investigator

evidentiary support or tainted by error of law. Wyle v. Lees and uphold the findings and rulings of the trial court unless they are lacking in might arise. See proceedings. We review sufficiency of the evidence claims as a matter of law

Marshal provides no evidence that enforcement proceedings could be The petitioner first claims that “other than bald assertions, the Fire are “reasonably anticipated.” Id. It merely requires the agency to demonstrate that law enforcement proceedings agency establish that law enforcement proceedings are a certainty. Id. at 583.

Murray, 154 N.H. at 583-84. It does not even require that the

does not require that the agency explain when, where, or by whom charges and that disclosure could reasonably be expected to interfere with those exemption

(2011).

evidence that enforcement proceedings are pending or reasonably anticipated, The petitioner argues that the Fire Marshal did not provide sufficient

interfere with those proceedings.” Murray, 154 N.H. at 582-83. “disclosure of the requested documents could reasonably be expected to and nature of the Government’s investigation.” Solar Sources, Inc. v. United

evidence, chilling and intimidation of witnesses, and revelation of the scope interfere with enforcement proceedings by “[resulting] in destruction of consistent with the applicable law.” Barney Federal courts have recognized that the disclosure of information may Murray the] grounds for nondisclosure, and those grounds are reasonable and “fairly describe[s] the content of the material withheld and adequately [states

[the] exemption.” Lewis cannot be “reasonably anticipated” are either inadequately developed, see

requested records are exempt from disclosure. exemption are satisfied, we affirm the trial court’s ruling that the not error. Because both prongs of the two-part inquiry required to invoke the “could reasonably be expected to interfere with enforcement proceedings” was affidavit “avers to the potential of an investigation could become very important during the prosecution phase of the case. would otherwise have” (quotations omitted)). Investigator Clark’s affidavit that the Fire Marshal demonstrated that disclosure of the requested records information or evidence that seemed unimportant at an earlier time c. . . . Depending on [the defendant’s claims or defenses against charges], 823 F.2d at 378. Accordingly, the trial court’s ruling detailed descriptions of the documents and allege[s] facts sufficient to establish The affidavit submitted by the Fire Marshal “contain[s] reasonably The petitioner’s remaining arguments that enforcement proceedings

investigation.” (Emphasis added.) this affidavit. See viability of any potential prosecution by maintaining the secrecy of the ongoing that “it is important to protect the integrity of [the] investigation and the specifically says that “the [f]ire investigation is open and ongoing,”and explains potential of a proceeding.” However, this is not accurate. The affidavit

mischaracterization of the affidavit. Specifically, the petitioner claims that the “by not allowing litigants earlier or greater access to agency . . . files than they the Matter of Martel & Martel, 157 N.H. 53, 64 (2008), or based upon a

1 p. 9 987).

id. at 1274; Lewis v. I.R.S., 823 F.2d 375, 378-7 p. 9 9 (9th Cir.

omitted). As the Fire Marshal points out, the trial court was entitled to credit

exemption 7 of the FOIA is to prevent harm to the government’s case in court 1268, 1273 (8th Cir. 1 p. 9 980) (explaining that one of the primary purposes of tainted by what they have heard that someone else reported. States question whether what they recall is their own recollection or has been, 142 F.3d 1033, 1039 (7th Cir. 1998); accord Barney v. I.R.S., 618 F.2d become aware of the other witnesses statements by bringing into

what other witnesses have said can taint the credibility of witnesses that a legitimate suspect to divert attention from themselves, and 2.) revealing broad and that, based upon Murray p. 10 The petitioner argues that the categorization within the affidavit is too

testimony, or other evidence which . . . defined these categories more precisely

and diagrams,” and “witness interviews/statements.”

respondents to meet their burden . . . [but they] offered no affidavits, specifically stated that “additional explanation might have allowed the annotations or explanations.” Id category is segregable. Some of the categories include “photographs,” “maps interfere with the investigation.” Murray. (emphasis added). Moreover, in Murray we that category would interfere with enforcement proceedings and whether the one-page document delineating twenty categories of information “without any explanation of each category, and states how disclosure of the records within agency seeking to avoid disclosure in Murray presented the court with only a ‘tax records.’” Id. However, unlike that which was presented in this case, the ‘photographs,’ ‘correspondence (letters and e-mails),’ ‘maps and diagrams’ and 584. The petitioner is correct that in Murray, we rejected “the broad terms and diagrams,” and “witness interviews/statements” are too general. See id. at identification violates” Murray, categories such as “photographs,” “maps

permit a court to ascertain how each category of documents, if disclosed, could

Clark’s affidavit breaks the records down into twelve categories, provides an distinct as to reveal the nature and scope of the investigation.” Id. Investigator judicial review.” Id. It does not require that the categories of documents be “so requires only that the categories be “distinct enough to allow meaningful

necessarily required.” Murray categorical identification of the records sought, the Fire Marshal’s categorical Here, the petitioner argues that “[a]lthough Murray

rather than file-by-file, and “[t]he categorization should be clear enough to “generic determinations” should be justified for each category of document, records were exempt from disclosure under Murray practicable approach” in cases invoking exemption 7(A) of the FOIA). Such The petitioner also argues that in determining whether the requested (1st Cir. 1987) (explaining that the use of a Vaughn index “is simply not a will suffice.” Id.; accord Curran v. Department of Justice, 813 F.2d 473, 475 (A) of the Murray exemption, “generic determinations of likely interference often

sufficient to justify an agency’s refusal to disclose, such measures are also not “While an in review or the preparation of a Vaughn index may be

28 & nn.20-21 (D.C. Cir. 1973). Marshal to produce a Vaughn index, see Vaughn v. Rosen, 484 F.2d 820, 826either conducted an in camera review of the records or required the Fire

C. Vaughn Index or In Camera Review p. 11 Affirmed

request for attorney’s fees and costs. otherwise. We, therefore, uphold the trial court’s denial of the petitioner’s

necessary to make the information available, and the petitioner does not argue

available. The trial court specifically found that the proceedings were not

costs only if the proceedings below were necessary to make the information RSA 91-A:4, IV, the trial court would be required to award attorney’s fees and records within five business days. However, even if the Fire Marshal did violate

Right-to-Know Law requiring all public agencies to respond to a request for

April 8th request for records in violation of RSA 91-A:4, IV, the provision of the should have been awarded because the Fire Marshal did not respond to its available.” On appeal, the petitioner argues that attorney’s fees and costs

costs “[b]ecause this lawsuit was not necessary to make any information

The trial court denied the petitioner’s request for attorney’s fees and

chapter 91-A.

knew or should have known that the conduct engaged in was a violation of RSA

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred. and costs, see

proof by affidavit or testimony, the trial court need not undertake an in investigation or prosecution. Where the agency has sustained its burden of “was necessary in order to make the information available”; and (3) the agency

produce the undisclosed records, the petitioner also requested attorney’s fees

explained how disclosure within each category could interfere with the that: (1) the agency violated any provision of RSA chapter 91-A; (2) the lawsuit liable for reasonable attorney’s fees and costs incurred” if the trial court finds

RSA 91-A:8, I. Pursuant to RSA 91-A:8, I, an agency “shall be

In addition to requesting that the trial court order the Fire Marshal to

II. Attorney’s Fees and Costs

inspection or order a Vaughn index. See Lewis, 823 F.2d at 378.

provided an affidavit that defined the categories with some specificity and Here, the Fire Marshal did exactly what was required under Murray

could interfere with any investigation or enforcement.” Id. [or] . . . explained how disclosure of the information within these categories