2015-0499, Thomas Reid v. New Hampshire Attorney General

General Joseph Foster, to produce unredacted records of the Attorney Law, RSA chapter 91 - A, to compel the defendant, New Hampshire Attorney S uperior C ourt (Smukler, J.) denying his petition under the Right - to - Know LYNN, J. The plaintiff, Thomas Reid, appeals the decision of the

brief, and Mr. Fredericks orally), for the defendant. attorney general, and Nancy Smith, senior assistant attorney general, on the Joseph A. Foster, attorney general (Francis C. Fredericks, assistant

plaintiff. Reid L aw, PLLC, of Concord (Thomas Reid on the brief and orally), for the

No. 2015 - 0499 Merrimack

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, Concor d, 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

The attorney general and the county commissioners did appeal to this court county commissioners to appeal and request a further stay from this court. stayed its order for thirty days so as to permit the attorney general and the Rockingham County Attorney and allowed access to his office. The court suspension from office was unlawful, and that he must be reinstated as By order of April 10, p. 2 2014, the court ruled that Reams’ s continued

for discovery in Reams’ s lawsuits seeking reinstatement to office. investigation was concluded, the trial court determined that there was no need charges had been or would be brought against Reams. Because the criminal that the criminal investigation had been concluded and that no criminal RSA 661:9, IV ( p. 2 2008). On March 26, the defendant informed the trial court complaint asking the superior court to remove Reams from office pursuant to On March 11, 2014, the defendant and the county commissioners filed a

preliminary injunctive relief and to conduct discovery. investigation, the Superior C ourt (McNamara, J.) denied Reams’ s requests for attorney and access to his offic e. Based, in part, o n the ongoing criminal actions were unlawful and seeking reinstatement to his position as county against the defendant and the county commissioners, asserting that their While the criminal investigation was ongoing, Reams instituted lawsuits

county attorney on January 17, p. 2 20 14. approximately March of 2014. The plaintiff resigned his position as deputy Investigation, conducted a criminal investigation of Reams that lasted until conjunction with the U.S. Attorney’s Office and the Federal Bureau of Rockingham County. See RSA 7:33 (2013). The defendant, acting in appointed an assistant attorney general to serve as interim county attorney for the defendant’s behest. Also at the defendant’s request, the superior court the plaintiff also was barred from the Rocking ham County Attorney’s Office at memorandum of law filed by the county commissioners in a related case that from entering his office. It appears from the plaintiff’s allegations and a defendant’s request, the Rocking ham County Commissioners barred Reams S imultaneously, the defendant placed the plaintiff on paid suspension. At the the criminal law enforcement authority of the county attorney. authority granted by RSA 7:6 (2013), 7:11 (2013), and 7:34 (2013), suspended County Attorney Reams. On that date, the defendant, cl aiming to act under plaintiff served as the Deputy County Attorney for Rockingham County under The pertinent fac ts are as follows. Prior to November 6, 2013, the

Attorney James Reams. We vacate and remand. General’s investigation into alleged wrongdoing by former Rockingha m County p. 3 3

appellants. appealed, we would then reactivate the appeal in Case No. 2014 - 0247 at the request of the this court, we would consolidate the appeals in both cases, and that if the removal action was not superior court. We ruled that if the court’s final decision in the removal action was appealed to did, however, stay processing of the appeal pending the conclusion of the removal action in the Attorney v. New Hampshire Attorney General, No. 2014 - 0247 (N.H. April 24, 2014). Our order See Rockingham County Attorney v. Rockingham County Commissioners; Rockingham County 1

Reams had retaliated against any County Attorney’s Office  any and all doc uments, interviews or records showing that press and/or to State Representative Laura Pantelakos; and leaks about the Human Resources investigation made to the employee) against Reams, as well as information concerning the employee’s girlfriend (also a County Attorney’s Office Office employee for an earlier discrimination complaint ma de by Department of a retaliation claim against a County Attorney’s with respect to a referral to the County Human Resources General’s Office by Rockingham County Commissioner Barrows  any and all information related to a 2012 c all to the Attorney Attorney’s Office during the years 2012 and 201 p. 3 3; discrimination that occurred at the Rockingham County  records, interviews or reports reflecting any acts of to the plaintiff; therefrom, a listing of the se ized items, and return of said items to the search of the plaintiff’s office and the seizure of items  copies of any and all warrants, consents, or reports pertaining the attorney general; him from his office on their own initiative or at the request of  information clarifying whether the county commissione r s barred prevent tampering with records; Courthouse over the evening of November 6 - 7, 2013, to assignment of a state trooper to the Rockingham County  all information, documents and records that justified the investigation of Reams should be initiated; November 6, 2013, that led him to conclude that a criminal  a recitation of all information possessed by the defendant on suspending the plaintiff’s law enforcement authority; recordings or othe r records relied upon as the basis for  investigative reports, interview notes, memos, emails,

plaintiff sought the following materials: defendant’s records concerning the investigation of Reams. Specifically, the On April 17, 2014, the plaintiff submitted a request for dis closure of the

201 p. 4 4, both proceedings were settled. and sought an extension of the stay — relief which we denied. On June 18, 1 4

attorney’s fees on the grounds that the plaintiff was se lf - represented. defendant had not acted in bad faith. In addition, the court denied the plaintiff’s request for The court also denied the plaintiff’s request for the assessment of a civil penalty, finding that the 2

determine whether the defendant had sustained his burden of proof. 2 supporting his redactions, which the court indicated it would review to camera. Instead, it directed the defendant to provide a “thoro ugh affidavit” his costs. However, the court declined to review redacted documents in response to the plaintiff’s requests. As relief, the court awarded the plaintiff had violated the Right - to - Know L aw by failing to timely supplement his By order dated January 1 p. 4 4, 2015, t he trial court ruled that the defendant

form, so as to determine the propriety of the redactions. camera materials that he had submitted or proposed to submit in redacted of 1293 pages of documents. The defendant requested that the court review in first phase of a “rolling production” of materials that consisted of the disclosure The defendant represented that, as of December 20, 2 0 1 p. 4 4, he had begun the otherwise acted reasonably and had not improperly withhe ld any information. had not timely supplemented hi s initial response, but arguing that he had the present action. The defendant moved to dismiss, acknowledging that he defendant for a period of ap proximately seven months, the plaintiff instituted See RSA 91 - A:4, IV (2013). When no further response was received from the require a minimum of 30 days to compile and review the requested records. The defendant timely responded to the requests, indicating that he would

he had compiled during his tenure as Deputy County Attorn ey.  the return to the plaintiff of the personal and supervisory notes and another job she held after leaving the County Attorney’s Office; alleged actions in causing this employee to be terminated from employees by Reams, as well as records regarding Reams’ s General’s Office about the sexual harassment of female Office employee who, in 1999, had complained to the Attorney modification of the supervisory duties of a County Attorney’s  all records, reports or interviews related to Reams’ s alleged

sought additional materials, including: In a second request to the defendant, dated April 2 p. 4 4, 2014, the plaintiff

position. retaliated against if Reams was allowed to return to his believe employees of the County Attorn ey’s Office would be D epartment investigation or showing that there was reason to employee as a r esult of the 2012 County Human R esources p. 5 5

of RSA 91 - A: p. 5 5, IV.” This appeal followed. The court concluded that “[t]he defendant’s redactions fall within the purview

reports to the Rockingham County. . . human resources office. instances of conduct involving employee discipline and certain County Attorney’s Office’s personnel practices, including specific former employees. The subject directly involved the Rockingham Rockingham County, consisted of interviews with present and Reams. This investigation, which was conducted jointly with investigation into misconduct alleged to have been committed by Here, the records at issue relate to the defendant’s

from disclosure under the Right - to - Know Law. Specifically, the court ruled: unredacted documents on the basis tha t the documents sought we re exempt production of an index.” I t denied the motion to compel production of defendant has already complied with a previous court order requiring court denied the motion for production of a more detailed index “[b]ecause the On July 10, 201 p. 5 5, the trial court denied the plaintiff’s motions. The

both motions. under RSA 91 - A: p. 5 5, IV for “personnel information.” The defendant objected to of the defendant’s asserted bases of exemption; namely, the exemption claimed compel production of documents, the plaintiff specifically challen ged only one a motion to compel production of unredacted documents. In his motion to plaintiff filed a motion to compel production of a complete index of records and status report.” The request for additional ti me was granted and, thereafter, the time “to review the voluminous materials and provide a more comprehensive The plaintiff objected, and requested, among other things, additional

Order” of January 14, 201 p. 5 5. claimed, it had “now responded fully to Mr. Reid’s request and the Court Finally, the defendant requested that the case be dismissed because, it for exemption was claimed for each document or category of documents listed. exhibit to the affidavit, indicated which one or more of the foregoing legal bases RSA p. 6 651:5. A master list of Bates - numbered documents, submitted as an RSA 91 - A:5, IV and VII; and (9) confidential records, under RSA 91 - A:5, IV and 91 - A:5, IX; (7) notes, under RSA 91 - A:5, VIII; (8) attorney work product, under constitute an invasion of privacy, under RSA 91 - A:5, IV; (6) drafts, under RSA IV; (5) “[i]ndividual citizens’ private information,” the disclosure of which would jury records, under RSA 91 - A:5, I; (4) financial information, under RSA 91 - A:5, under RSA 91 - A:5, IV; (2) medical information, under R SA 91 - A:5, IV; (3) grand which information had been withheld or redacted: (1) personnel information, A ttorney G eneral Anne Edwards, identified the following nine legal bases upon request for dismissal on February 13, 2015. The affidavit, by A ssociate The defendant responded by filing a final status report, affidavit, and 6

Fundamentally, t he plaintiff’s argument is that records of the defendant ’s that term and interpreted the statute so as t o render the term superfluous. issue is “internal,” and argues that the trial court both “failed to give weight” to particular, the plaintiff contends that the “operative term” in the exemption at matter exemption contrary to the plain language of RSA 91 - A:5[,] IV.” In The plaintiff argue s that the trial court erroneously “applied a subject

practices.” at issue “directly involved the Rockingham County Attorney’s Office’s personnel Precinct, 154 N.H. 1 (200 p. 6 6), found that the subject of the investigative records Corp. v. Fenniman, 136 N.H. 624 (1993), and Hounsell v. North Conway Water RSA 91 - A:5, IV. The trial court, relying upon our decisions in Union Leader

constitute invasion of privacy. videotape sale or rental, and other files whose disclosure would examinations; and personnel, medical, welfare, library user, examination, examination for employment, or academic and other examination data used to administer a licensing commercial, or financial information; test questions, scoring keys, Records pertaining to internal personnel practices; confidential,

pertinent part, an exemption from disclosure under the R ight - to - K now Law for: At issue is the interpretation of RSA 91 - A:5, IV, which provides, in

citations omitted). Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (199 p. 6 6) (quotation and

broadly and exemptions narrowly. Right - to - Know Law, we construe pr ovisions favoring disclosure plain meaning of the words used. To advance the purposes of the review of the Right - to - Know Law, and we accordingly look to the court. The ordinary rules of statutory construction apply to our The interpretation of a statute is to be decided ultimately by this

argument, which raises an issue of statutory interpretation. County, 1 p. 6 63 N.H. 320, 322 (2012), we will first address the plaintiff’s second cases on constitutional grounds only when necessary,” Chatman v. Strafford Reams was “conducted jointly with Rockingham County.” “Because we decide the trial court erred in finding that the attorney general’s investigation of attorney general’s investigation cannot be considered “internal”; and (3) that pertaining to internal personnel practices,” RSA 91 - A:5, IV (2013), because the erred in determining that the investigative records at issue were “[r]ecords Part I, Article 8 of the New Hampshire Constitution; (2) that the trial court On appeal, the plaintiff argues: (1) that the trial court’s ruling violates

Cover, 168 N.H. 6 14, 618 (2016) (noting that when interpreting a statute, “we disclosure would constitute invasion of privacy.” RSA 91 - A:5, IV; s ee Appeal of particula r, the language exempting “personnel. . . and other files whose A: 5, IV at issue in the context of the remainder of the statutory language — in apply the exemption. In addition, we did not interpret the portion of RSA 91 narrowly and declining to employ a balancing test in determining whether to R ight - to - K now Law jurisprudence by declining to interpret the exemption practices” exemption in Fenniman, we twice departed from our customary As the fore going demonstrates, in interpreting the “internal personnel

categorically exempt.” Id. at 62 p. 7 7 (citations omitted). has plainly made its own determination that certain documents are disclosure, such an analysis is inappropriate where, as here, the legislature to judge whether the benefits of nondisclos ure outweigh the benefits of at 626. We further held that “[a] lthough we have often applied a balancing test quintessential example of an internal personnel practice.” Fenniman, 136 N.H. document procedures leading up to internal personnel discipline, a file s at issue “plainly ‘pertain[] to inte rnal personnel practices’ because they chapter 91 - A” (quotation and brackets omitted)). We then concluded that the swallow the rule and is inconsistent with the purposes and objectives of RSA A:5, IV] must be avoided, since to do otherwise would allow the exemption to construction of the [] terms [‘ confidential, commercial, or financial ’ in RSA 91 - N.H. Housing Fin. Auth., 142 N.H. 540, 552 (1997) (stating that “[a] n expansive quite broad.” Id. at 626 (citation omitted). B ut cf., e.g., Union Leader Corp. v. meaning s of the words ‘internal,’ ‘personnel,’ and ‘practices’ are themselves 91 - A restrictively to further the purposes of the Right - to - Know Law, the plain stated that “[a] lthough we generally interpret the exemptions in RSA chapter and, therefore, we relied upon the plain meaning of the words used. Id. We construed by this court and is neither explained nor defined by the statute,” We noted that “[t] his particular portion of. . . [the statute had] not been

omitted). internal personnel practices” under RSA 91 - A:5, IV. Id. at 626 (quotation that the documents fell within the exempt ion for “[r]ecords pertaining to department lieutenant accused of making harassing phone calls.” Id. We held The documents had b een “compiled during an internal investigation of a of” the Dover Police Department and its chief. Fenniman, 136 N.H. at 625. the R ight - to - K now Law of “certain investigatory documents under the control The first is Fenniman, in which the plaintiff sought the disclosure under

which the trial court relied. To explain our reasoning, however, we must first examine the two cases upon interpretation and, therefore, we vacate and remand for further proceedings. County Attorney’s employer.” We agree with the plaintiff’s statutory 91 - A:5, IV (emphasis added), because “[t]he Attorney General is simply not the investigation of Reams do not “pertain [] to internal personnel practices,” RSA p. 8 8

§ 552(b)(2), Rose, 425 U.S. at 367, which gave, as examples of material covered by Exemption The Rose Court relied upon the Senate Report on the bill enacted and codified as 5 U.S.C. 3

interest”); Milner v. Department of Navy, 562 U.S. 562, 566 (2011) (reaffirm ing 3 matter in which the public could not reasonably be expected to have an agencies of the burden of assembling and maintaining for public inspection general thrust of the [5 U.S.C. § 552(b)(2)] exemption is simply to relieve See Dep t. of Air Force v. Rose, 425 U.S. 352, 369 - 70 (1976) (not ing that “the States Supreme Court’s interpretation of that exemption’s federal counterpart. practices” exemption in RSA 91 - A:5, IV is markedly broader than the United § 552(b)(2) (2012). Nevertheless, o ur construction of the “internal personnel to the internal personnel rules and practices of an agency.” 5 U.S.C. specifically, it exempt s from disclosure under the FOIA matters “related solely § 552(b)(2) is worded similarly to the portion of RSA 91 - A:5, IV at iss ue here; The F reedom of Information Act (FOIA) exemption contained in 5 U.S.C.

Lebanon School Bd., 112 N.H. 160, 162 - 63 (1972). Freedom of Information Act, 5 U.S.C.A. [§] 552(b)(2), (4) and (6),” Mans v. of our right - to - know law, RSA 91 - A:5, IV (sup p.), are similar to the F ederal Dover, 162 N.H. 641, 650 (2011), having noted that “[t]he exemption provisions Specifically, we have looked to federal law, see, e.g., Montenegro v. City of accommodation of the competing interests involved” (quotation omitted)). interpretatively helpful, especially in understanding the necessary jurisdictions, since other similar acts, because they are in pari materia, are interpreting the R ight - to - K now Law, “[w] e also look to the decisions of other Murray v. N.H. Div. of State Police, 154 N.H. 579, 5 p. 8 81 (2006) (noting that in jurisprudence, we did not conduct such an inquiry in Fenniman. See, e.g., jurisdictions interpreting simil ar statutes is common in our R ig ht - to - K now Law Moreover, although the practice of consulting decisions from other

purposes”). and practices] to protect any records that are used only for ‘personnel’ - related [which shields, inte r alia, records that relate solely to internal personnel rules . . . would have little purpose if agencies could simply invoke Exemption 2 which would constitute a clearly unwarranted invasion of personal [privacy]’ which shields ‘personnel and medical files and similar files the disclosure of 2016) (noting that “Exemption 6 [of the federal Freedom of Information Act], words”); cf. Shapiro v. U.S. Dept. of Justice, 153 F. Supp. 3d 253, 2 p. 8 80 (D.D.C. and presume that the legislature did not enact superfluous or redunda nt “[w]hen construing a statute, we must give effect to all words in [the] statute Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 51 p. 9 9, 525 - 26 (2002) (noting that invasion of privacy” in any way redundant or superfluous. See Winnacunnet render the exemption for “personnel. . . fil es whose disclosure would constitute a broad, categorical interpretation of “internal personnel practices” might the statute a s a whole” (quotation omitted)). Thus, we did not examine whether do not consider words and phrases in isolation, but rather within the context of 9

undermining the Rose holding.” Shapiro, 153 F. Supp. 3d at 27 p. 9 9. difference in judicial approaches taken in the Rose and Milner decisions does not come close to broader interpretation of Exemption 2 than that in Rose, it has been noted that “[t]he modest and human resources.” Milner, 562 U.S. at 581. While this statement may appear to suggest a ‘personnel rules and practices,’ encompasses only records relating to issues of employee relations In so holding, the Court stated that “Exemption 2, consistent with the plain meaning of the te rm 4 Sess., 8 (1965)). policy as to sick leave, and the like.’” Id. at 363 (quoting S. Rep. No. 813, 89t h Cong., 1st 2, “‘rules as to personnel’s use of parking facilitie s or regulations of lunch hours, statements of

Nevertheless, we decline to extend Fenniman and Hounsell beyond the ir own misconduct — as a personnel practice. Fenniman, 136 N.H. at 626. personnel discipline” — in particular, an investi gation into employee Fenniman and Hounsell in treating “procedures leading up to internal not do so sua sponte. A t this juncture, stare decisis impels us to follow Neither party has asked us to reconsider Fenniman or Hounsell, and we will personnel practices” portion of RSA p. 9 91 - A:5, IV exempts the materials at issue. Against this legal backdrop, we now consider whether the “internal

Id. at 5. petitioners have presented no legal authority in support of their contentions.” or agency from asserting an exemption under these circumstances, and the because nothing in the plain language of RSA p. 9 91 - A:5, IV r estricts a public body outside investigators.” Id. at 5. We found that argument “unpersuasive. . . ‘ internal status ’ because,” among other things, “the precinct contracted with We also rejected the petitioners’ co ntention that “the investigation lost its misconduct, was a record pertaining to ‘internal personnel practices.’” Id. at 4. was generated in the course of an investigation of claimed employee ho ld ing, in relevant part, that, “as in Fenniman, the Hunt - Alfano report, which We affirme d the trial court’s denial of the R ight - to - K now petition, i d. at 7,

recommendations (Hunt - Alfano report).” Id. which they summarized the investigation and made findings and Hunt and Alfano interview ed precinct employees and then “prepared a report in “retained Jack Hunt and John Alfano to investigate the complaint.” Id. at 2. been threatened and harassed by a co - worker,” the precinct’s legal counsel at 2 - 3. Specifically, following an allegation by a precinct employee “that he had Conway Water Precinct (precinct) by outside investigators. Hounsell, 154 N.H. K now Law request for a n investigative report prepared for the defendant North court: Hounsell v. North Conway Water Precinct. Hounsell involved a R ight - to personnel practices” exemption in the second case relied upon by the trial We continued our broad interpretation of RSA p. 9 91 - A:5, IV’s “internal

statute s” (quotations, citation, footnote and brackets omitted)). 4 disclosure would significantly risk circumvention of agency regulations or a so - called “High 2” exemption for “any predominantly internal materials whose the narrow scope of Exemption 2 by rejecting a line of federal cases recognizing p. 10 10

personnel practices,” to mean practices that “exist[] or [are] situated within the e d. 2002). Employing the foregoing definitions, we construe “internal something.” Webster’s Third New International Dictionary 1180 (unabridged “Internal” is defined to mean “existing or situated within the limits . . . of

(emphasis added)). employee misconduct, was a record pertaining to ‘internal personnel practices ’” Alfano report, which was generated in the course of an investigation of claimed See, e.g., Hounsell, 154 N.H. at 4 (noting that, “as in Fenniman, the Hunt this is the meaning we implicitly gave the term in Fenniman and Hounsell. 570. In general, then, the term “personnel” relates to employment. Indeed, hiring and firing, work rules and discipline, compensation and benefits.” Id. at concern the conditions of employment in federal agencies — such matters as and practices dealing with emp loyee relations or human resources. . . . They rules and practices,’” for purposes of exemption 2 of the FOIA, “are its rules 1687 (1966)). The Court accordingly determined that “[a]n agency’s ‘personnel representa tives.’” Id. (quoting Webster’s Third New International Dictionary procedures, and relations with [or involving] employees or their placement, and training of employees and . . . the formulation of policies, resources matters. ‘Personnel,’ in this common parlance, means ‘the selection, Court noted that “[w]hen used as an adjective, . . . th [e] term refers to human In construing the term “personnel” as used in the FOIA, t he Supreme

provision’s boundaries”). and practices’” and t hat the ter m is “the one that most clearly marks the § 552(b)(2) uses the term “‘personnel’ . . . as an adjective .. . to modify ‘rules the provision’s scope. Cf. Milner, 562 U.S. at 569 (observing that 5 U.S.C. “internal” and “personnel” modify the word “practices,” ther eby circumscribing Looking now to how the words are used in the statute, we note that the terms no further in defining or examining those terms. Fenniman, 136 N.H. at 626. the word s ‘internal, ’ ‘personnel,’ and ‘practices’ are . . . quite broad,” but went (2011) (quotation omitted). In Fenniman, we stated that “the plain meaning s of ambiguous.” Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 676 words used and will consider legislative history only if the statutory language is “When interpreting a statute, we first look to the plain meaning of the

“internal.” RSA 91 - A:5, IV. distinguishable and that the distinction turns upon the statutory term a record pertaining to ‘internal personnel practices.’ W e agree that Hounsell is disciplinary action, standing alone, is not enough to qualify an investigation as employer.” He argues that “[t] he mere fact that an investigation could result in investigators had been retained by the e mployer and acted on behalf of the The plaintiff distinguishes Hounsell by noting that in that case, “the

to our customary standards for construing the Right - to - Know Law. factual contexts and, in further interpreting RSA 91 - A:5, IV herein, we return p. 11 11

purposes, but rather, that they acted solely on behalf of the precinct. See id. that the outside investigators neither initiated the investigation nor conducted it for their own employee’s] complaint of harassment” by a co - worker. Hounsell, 154 N.H. at 2. The implication is In Hounsell, the precinct’s legal counsel “retained” t he outside third parties “to investigate [an 5

power to set his sala ry, hire or fire him. These fu nctions were to exercise fiscal or managerial control over the plaintiff, nor the control. During his service there, the county did not have the right courts generally consider factors such as managerial and fiscal In determining whether an employer - employee relationship exists,

employee of Grafton County.” Samaha, 126 N.H. at 586. We reasoned: employed as clerk of superior court sitting in Grafton County, “was not an Grafton County, 126 N.H. 583 (1985), we held that the plaintiff, when would be “properly recoverable from the State or the county”). In Samaha v. recoverable for county attorney’s alleged bad faith litigation, whether such fees (199 3) (finding it unnecessary to decide, even assuming attorney’s fees were employees of the attorney general. Cf. State v. Dexter, 136 N.H. 669, 673 We have not previously decided whether the county attorneys are

authority.” prosecutorial effectiveness is within the [attorney general’s office ’s] statutory investigation into management and operational issues that im pact the office’s general’s office] did not employ the witnesses at issue is. . . in error because an plaintiff’s “argument that the records are not exempt because the [attorney from the interests of an employer.” The defendant further asserts that the effective operation of the [Rockingham County Attorney’s Office] do not differ Rather, the defendant contend s that the attorney general’s interests “in the a sserts that he was Reams’s employer nor explicitly concedes that he was not. defendant, who was not Reams’s employer. The defendant neither directly misconduct was not an “internal” one because it was conducted by the The plaintiff argues that the investigation into Reams’s alleged

omitted). documents.” N.H. Retirement Sys., 162 N.H. at 676 (quota tion and brackets statutory and constitutional objective of facilitating access to all public view to providing the utmost information in order to best effectuate the our practice of “resolv [ing] questions regarding the Right - to - Know law with a not only consistent with the plain language of RSA 91 - A:5, IV, but also follows investigation’s target. See Hounsell, 154 N.H. at 2, 4 - 5. Such a construction is conducted by, or as in Hounsell, on behalf of, the em ployer of the 5 of an employment relationship. In other words, the investigation must be practice, we now clarify that the investigation must take place within the limits Hounsell in treating an investig ation into employee misconduct as a personnel limits” of employment. Id. A ccordingly, while we follow Fenniman and p. 12 12

attorney. “Although the county attorney . . . may be engaged primarily in supervision of the attorney general is not the sole duty or function of a county 101 N.H. at 490. N ev ertheless, the prosecution of criminal cases under the county attorneys in cases where he deems it in the public interest.” Wyman, him the power to control, direct and supervi se criminal law enforcement by the re sponsibility for criminal law enforcement in the Attorney General, and to give cited provisions “demonstrate a legislative purpose to place ultimate direction of the attorney general.” RSA 7:34. “Construed together,” the above - RSA 7:34 specifies that “[t]he county attorney of each county shall be under the N.H. at 489 (quoting RSA 7:11) (emphasis omitted); see RSA 7:11. Similarly, the discretion of the latter he shall see fit to exercise the same. ’” Wyman, 101 criminal law ‘shall be subject to the control of th e attorney general whenever in state.” RSA 7:6. “RSA 7:11 provides that officers charged with enforcing county attorneys, the attorney general shall enforce the criminal laws of the before the supreme and su perior courts of the state, and with the aid of the shall have and exercise general supervision of the criminal cases pending N.H. 487, 490 (1958). RSA 7:6 provides, in part, that “[t] he attorney general some supervisory authority over county attorneys. See Wyman v. Danais, 101 As the defendant points out, however, the attorney general does posses s

commissioners”). paid from the county treasury in equal payments as determined by the county RSA 23:5 (2000) (providing that “[t] he salaries of county attorneys . . . shall be compensation paid to elected county officers including the county atto rney”); county convention shall have the power to establish salaries, benefits and other attorneys ’ salar ies. See RSA 23:7 (2000) (providing, in part, that “[e]very misconduct”). Finally, the attorney general neith er sets nor pays the county officer of a county . . . may be removed by the superior court for official vested in the superior court.” Id. at 91, 93; RSA 661:9, IV (providing that “[a]ny authority,” but the “power to re move [a] county attorney from office . . . is suspend [a] county attorney from exercising his criminal law enforcement the county attorney from office). The attorney general may “temporarily 115 N.H. 91, 93 (1975) (noting that attorney general has no power to remove general have the authority to fire a county attorney. See Eames v. Rudman, with the provisions of RSA 7:33 and RSA 661:9 (2016). Nor does the attorney or by majority vote of the members of the county convention, in accordance absences in the office of count y attorney are filled either by the su perior court RSA 7:33 (2013); see also RSA 653:1, V (2016). Vacancies or temporary Rather, each county attorney is “elected biennially by the voters of the county.” instant case, we note that the a ttorney g eneral does not hire county attorneys. Considering the factors we employe d in Samaha with respect to the

Id. (citations omitted).

N.H. [CONST.] pt. II, art. 82. performed by the superior court, acting as a body. RSA 499:1, : p. 12 12. p. 13 13

of their right to have their personnel information protected.” does not divest the affected [Rockingham County Attorney’s Office] employees argues: “[T] he fact that the [attorne y general’s office’s] investigation occurred but for the benefit of protecting the privacy rights of the employee.” Thus, he RSA chapter 91 - A personnel exemptions is not for the benefit of the employer, The defendant nevertheless contends that “the protection provided by the

employment relationship, we vacate its decision. exemption to records of an investigation conducted o utside the limits of an b ecause the trial court applied RSA 91 - A:5, IV’s “internal personnel practices” our decision, we decline to address the plaintiff’s third claim of error; moreover, finding of joint participation with th e county commissioners would not affect application of RSA 91 - A:5, IV’s personnel exemptions.” Accordingly, because a investigation was conducted with Rockingham County is what justifies the w ith Rockingham County,” it “does not claim that the fact that the defendant maintains that it view ed its investigation as “a joint investigation “internal investigation exemption” as applied in Hounsell. Rather, although the investigation should be treated as conducted on their behalf for purposes of the outside counsel to the Rockingham County Commissioners such that its T he defendant makes no argument on appeal that it acted as agent or

participation is not sufficient. Cf. id. inv estigation’s target. See Hounsell, 154 N.H. at 2, 4 - 5. Mere joint “internal,” as applied in Hounsell, if conducted on behalf of the employer of the jointly with Rockingham County.” As noted above, an investigation is erred in finding that the defendant’s investigation of Reams was “conducted Hounsell, nor must we address the plaintiff’s argum ent that the trial court purposes of the “internal personnel practices” exemption as applied in Rockingham County Commissioners could be considered Reams’s employer for We need not decide, and express no opinion upon, whether the

employer for purposes of the “internal personnel practices” exemption. characteristic s noted above, to warrant treat ing the defendant as Reams’s la w enforcement by the county attorney is not sufficient, in light of the absent further conclude that the attorney general’s supervisory authority over criminal agree with the plaintiff that the defendant was not Reams’s employer. We as the “power to set [the] salary, hire or fire,” Samaha, 126 N.H. at 586, we attorney lacks the usual attributes of an employer - employe e relationsh ip, such Because the relationship between the attorney general and a county

which the county is interested”). commissioners [the county attorney] shall prosecute or defend any suit in that “[i]f no other representation is provided, under the dir ection of the county v. LaBelle, 109 N.H. 184, 185 (1968) (citation omitted); see RSA 7:34 (providing the county and other miscellaneous civil matters.” New Hampshire Bar Ass’n criminal prosecutions, his duties and functio ns also include civil litigations for p. 14 14

of privacy,” RSA 91 - A:5, IV, we have had occasion to “d efine w ith some exemption for “personnel . . . files whose disclosure would constitute invasion following guidance. Although we have not specifically interpreted the For the benefit of the parti es and the court on remand, we provide the

make that determination in the first instance. materials fall within the latter exemption and we leave it to the trial court to Accordingly, on remand, the parties may litigate whether any of the disputed whose disclosure would constitute invasion of privacy.” RSA 91 - A:5, IV. whether any of the disputed materials were exempt as “personnel . . . files personnel practices” exemption, and it is not evident that the court considered court’s decision, however, ap pears to be based exclusively on the “internal internal personnel practices,’ as well as employees’ personnel files.” The exemptions, as it noted that RSA 91 - A:5, IV exempts “‘[r]ecords pertaining to The trial court also seems to have recognized two personnel - related

constitute invasion of privacy.” RSA 91 - A:5, IV. practices” — and the exemption for “personnel . . . files whose disclosure would 91 - A:5, IV — the exemption for “[r]ecords pertaining to internal personnel defendant claimed exemption under both personnel - related exemptions in RSA addition, personnel records are also exempt.” Thus, it appears that the personnel practices are exempt from disclosure under Right to Know. In defendant asserted: “Under RSA 91 - A:5, IV, records related to internal of materials he called “Personnel Information.” (B olding omitted.) The the information he withheld or redacted, including an exemption for a category As previously note d, the defendant claimed a number of exemptions for

‘medical’ files”). merely because it is stored by an agency i n records other than ‘ personnel’ or “information about an individual should not lose the protection of Exemption 6 broadly construing the term “similar files” in the FOIA’s Exemption 6, that Dept. of State v. Washington Post Co., 456 U.S. 595, 601 (1982) (stating, in “personnel, medical . . . and other files” exemption. RSA 91 - A:5, IV; cf. U.S. because we believe that argument, too, is more suited to an analysis under the alter the fact that the information is su bstantively personnel in nature,” [Rockingham County Attorney’s Office] to the [a ttorney g eneral’s o ffice] does n ot the defendant ’s contention that the “transfer of personnel information from the disclosed” (quotation omitted)). Similarly, we decline to con sider at this time and other information necessary to an individual’s priv acy need not be the Right - to - Know Law means that financial information and personnel files Charitable Trusts Unit, 169 N.H. 95, 110 (2016) (noting that “[t]his section of invasion of privacy.” RSA 91 - A:5, IV; see N.H. Right to Life v. Dir., N.H. “personnel, medical, . . . a nd other files whose disclosure would constitute more properly be addressed under the portion of RSA 91 - A:5, IV that exempts rath er, highlights that whether the disputed material may be withheld should The defendant ’s argument does not alter our above conclusion, but, p. 15 15

defendant’s ability to assert such a claim on remand. RSA 91 - A:5, IV (emphasis added). or applica tion of that claimed exemption and our decision herein has no effect up on the files whose disclosure would constitute invasion of privacy,” w e express no opinion up on the scope omitted.) To the extent that claim was intended to be an invocation o f the exemption for “other exemption for “records whose disclosure would constitute an invasion of privacy.” (Quotation exempti on for “Personal Information.” (Bolding omitted.) In particular, the defendant claimed an redaction of information subject to the plaintiff’s Right - to - Know Law request, including an We again note that the defendant claimed a number of exemptions for its withholding and 6

“confidential, commercial, or financial information”). Specifically, “[w]e engage Fin. Auth., 142 N.H. at 553 (discussing RSA 91 - A:5, IV exemption for must be balanced against the public ’ s interest in disclosure.” N.H. Housing the information is per se exempt, but rather that it is sufficiently private that it material s, “th [e] categorical exemption [] [in RSA 91 - A:5, IV] mean [s] not that not automatically exempt from disclosure. RSA 91 - A:5, IV. F or those eschewed the customary balancing test in Fenniman, “personnel . . . files” are that, unlike materials pertaining to “internal personnel practices,” for which we prong of the inquiry would constitute an invasion of privacy. W e now clarify next require s determin ing whether disclosure of any material meeting the first The analysis of whether the exemption for “personnel . . . files” applies

employees] is in the interviewees’ personnel files”). report [regarding an employee’s racial discrimination complaint against two co evidence in the record before us that [Dallas Area Rapid Transit’s] investigation personal privacy’” did not apply to information at issue where there wa s “no file, the disclosure of which would constitute a clearly unwarranted invasion o f exemption under Texas Public Information Act for “‘information in a personnel Rapid Transit, 410 S.W.3d 876, 883 - 84 (Tex. App. 2013) (noting that “personnel . . . files” exemption does not appl y. Cf. Abbott v. Dallas Area 6 any of the disputed material is, or is contained in, a personnel file. If not, the . . . file s” exemption on remand, the trial court must first determine whether personnel, medical or similar files). Accordingly, in analyzing the “personnel two - part test for exemption under Connecticut’s Freedom of Information Act for Information Com’n, 774 A.2d 957, 96 3 - 6 4 (Conn. 2001) (describing similar FOIA for personnel, medical and similar files); Rocque v. Freedom of 550 (6 th Cir. 2001) (describing similar two - part test for exemption under the an invasion of privacy. Cf., e.g., Rugiero v. U.S. Dept. of Justice, 257 F.3d 534, of a “personnel file”; and (2) whether disclosure of the material would constitute analysis of: (1) whether the material can be considered a “personnel file” or part constitute invasion of privacy,” RSA 91 - A:5, IV, also requires a two - part subject to the exemption for “personnel . . . files whose disclosure would Id. Similarly, we now hold that the determination of whether material is information,’ and whether disclosure would constitute an invasion of privacy.” both whether the information sought is ‘confidential, commercial, or financial We noted that “[w]e ha ve interpreted our statute . .. as requiring analysis of information’” in the same provision. N.H. Housing Fin. Auth., 142 N.H. at 552. specificity the statutory exemption for ‘confidential, commercial, or financial p. 16 16

claims or arguments on remand. no thing in the guidance we provide herein is intended to constrain the scope of the defendant ’ s on appeal, we do not address whether the defendant ’s brief fully develop s his privacy claim. Thus, involving an asserted invasion of privacy, or made any ruling on that issue that is now before us Because the trial court appear s not to have engaged in the balancing test for an exemption 7

privacy,’” the court in Fine recognized “a strong public interest in protecting the whose production would “‘ co nstitute an unwarranted invasion of personal exemption for “‘investigatory records compiled for law enforcement purposes,’” alleg ed wrongdoing by public employees. Thus, in analyzing the FOIA nondisclosure has been noted where records relate to the investigation of participation in an investigation confidential”). In addition, a public inter est in privacy interests in the nondisclosure of their identities and in keeping their (M.D. Fla. 1994) (noting that “[w] itnesses and co - workers have legitimate Cappabianca v. Commissioner, U.S. Customs Service, 847 F. Supp. 1558, 1564 Fine v. U.S. Dept. o f Energy, 823 F. Supp. 888, 897 (D.N.M. 1993); see also concerning alleged employee violations do have privacy interests at stake.” have recognized that “[w] itnesses who cooperate with internal investigations see Murray, 154 N.H. at 581, we note that federal courts applying the FOIA office] investigators.” Looking t o cases from other jurisdictions for guidance, pregnan cy discrimination, discipline, and retaliation to [attorney general’s [employment - related] information, including allegations of sexual harassment, [Rockingham County Attorney’s Office] employees who provided their Reams, but rather cites “the privacy rights of the former and present 7 The defendant does not appear to assert a privacy interest on behalf of

omitted). Lambert v. Belknap County Convention, 157 N.H. 375, 382 - 83 (2008) (citations

privacy interest in nondisclosure. the government ’s interest in nondisclosure and the individual’s Finally, we balance the public int erest in disclosure against

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

stake, the Right - to - Know Law mandates disclosure. would be invaded by the disclosure. . . . If no privacy interest is at First, we evaluate whether there is a privacy interest at stake that

The three - step analysis is well - established:

p. 16 169 N.H. at 110. constitutes an invasion of privacy under RSA 91 - A:5, IV.” N. H. Right to Life, in a three - step analysis when considering whether disclosure of public records p. 17 17

expected to become public in due course, should not give rise to the same N.H. at 383. Thus, inf ormation that, under an objective standard, would be it can be considered private for purpose s of RSA 91 - A:5, IV. See Lambert, 157 suggests, however, the nature of the information itself may bear upon whether have reasonably expected to keep his or her ‘application’ private”). As Lambert Lambert, 157 N.H. at 383 (noting that candidate for an elected office “could not expectations.” N.H. Retirement Sys., 162 N.H. at 679 (quotation omitted); cf. private is judged by an objective standard and not by a party’s subjective Moreover, “[w] hether information is exempt from disclosure because it is

kind of embarrassment or reputational harm described above. court should consider whether disclosure would subject an individual to the whether any privacy interests are at stake in the disputed materials, the trial unnecessary disclosure of personal information”). Thus, in determining individuals from the injury and embarrassment that can result from the suggests that the “primary purpose . . . [of] Exemption 6 was to protect also Washington Post Co., 456 U.S. at 599 (noting that legislative history whether documents were “similar files” under Exemption 6 of the FOIA); see v. Federal Bureau of Investigation, 658 F.2d 71, 75 (2d Cir. 1981) (determining embarrassment, harassment, disgrace, loss of employment or friends.” Brown public disclosure could subject the person to whom they pertain to held t o apply to the “kinds of facts [that] are regarded as personal because their reputational injury. Id. at 477 - 78. Similarly, the FOIA’s Exemption 6 has been such records could subject individuals to stigma, embarrassment, and N.H. at 477. We cited cases from other jurisdictions noting that disclosure of interests . . . in law enforcement investigatory records.” City of Nashua, 141 Law i n City of Nashua, where we recognized “that there may be strong privacy We addres sed a law enforcement exemption under the Right - to - Know

Court has construed the 7C exemption to be broader than Exemption 6). Judicial Watch, Inc., 365 F.3d at 1125 (also noting, however, that the Supreme unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C) (2012). Cf. to the extent their production “could reasonably be expected to constitute an exemption for investigatory records “compiled for law enforcement purposes,” F.3d 1108, 1125 (D.C. Cir. 2004), as the privacy inquiry under the FOIA’s noted to be “essentially the same,” Judicial Watch, Inc. v. Dept. of Justice, 365 under the comparable provision of the FOIA (Exemption 6), however, has be en be asserted under the precise circumstances at issue here. The privacy inquiry We have not yet considered the nature of a ny privacy interest that might

“internal” one. explained above, the investigation by the attorney general’s office was not an we note that they are arguably distinguishable from this case because, as 5 U.S.C. § 552(b)(7)(C)(1977)). Although these cases provide helpful guidance, improper conduct by fellow employees.” Fine, 8 23 F. Supp. at 90 7 - 0 8 (quoting privacy of persons who have cooperated with internal investigations of possible p. 18 18

relied upon by the Attorney General.” W e recognize that “[t] he public has a unilaterally remove an elected official . . . [and] in disclosing the information “public interest in determining if the Attorney General had grounds to Turning to the second step of the balancing test, t he plaintiff claims a

irrespective of the particular facts of a case”). complaint and related informa tion are always exempt from disclosure, court’s ruling that the identity of a complainant in a sexual harassment required in each case. Cf. Rocque, 774 A.2d at 959 (disagreeing with “trial circumstances”). Accordingly, we emphasize that a fact - specific inquiry is interest in DOJ’s decision not to prosecute him, considering the misconduct ‘is of a highly personal nature,’ the public has a substantial [defendant, Department of Justice (DOJ),] argues that Senator Ensign’s alleged disclosure. Cf. CREW I, 978 F. Supp. 2d at 12 (noting that “[a]lthough the on balance, that interest is outweighed by the public’s c ognizable interest in information imbued with a legitimate privacy interest is subject to disclosure if, comprising sexu ally descriptive information”). On the other hand, even from disclosure” but “limit[ing] the exempt portions of the records to those issue . . . [and] certain other information concerning the investigation is exempt “that the identity of the complainant in the sexual harassment investigation at substantive information. Cf. Rocque, 774 A.2d at 95 9 (agreeing with trial court and interviewees in this case will have no pri vacy interest in any of the alleged misconduct, we cannot say as a matter of law that third party witnesses In contrast to CREW I, id., however, and given the nature of Reams’s

substance of the files, unless the substance could reveal their identities”). such as informants, witnesses, and investigators, “lack a privacy interest in the taken to cover up an extramarital affair, that third parties mentioned in files, (finding, with respect to investigative files on senator’s alleged criminal actions CREW v. U.S. Dept. of Justice, 978 F. Supp. 2d 1, 11 (D.D.C. 2013) (CREW I) interest in the substantive information the witnes s or interviewee imparts. Cf. interviewee’s name and identifying information will likely differ from the privacy Nevertheless, we note that the privacy interest in a witness’ s or investigation exemption for records c ompiled for purposes of law enforcement). Dept. of Justice, 684 F. Supp. 2d 149, 160 (D.D.C. 2010) (discussing the FOIA interest in personal privacy [even] by testifying at a public trial,” Sellers v. U.S. Rugie ro, 257 F.3d at 550, and that “[a] witness does not waive his or her information even where such information is already publicly available,” respect to such information as names, addresses, and other identifying We recognize case law holding that “[a] clear privacy interest exists with

after an investigation ran its course. an elected official could objectively have been expected to become public as or allegations of misconduct potentially rising to the level of criminal actions by never be anticipated. Here, it may be that certain information regarding privacy interest as information for which public exposure would, objectively, p. 19 19

implicates the policy concern noted in Hounsell; n amely, that “disclosure of defendant ’s contention, and the trial court’s consonant finding, that this case In light of the foregoing, our decisio n is not undermined by the

remand. determine and weigh t he applicable interests as the case may require on or exhaustive, and we leave it to the trial court, in the first instance, to The foregoing considerations are n ot intended to be either comprehensive

Nashua, 141 N.H. at 476. entity bears a heavy bu rden to shift the balance toward nondisclosure.” City of entity seeks to avoid disclosure of material under the Right - to - Know Law, that their accountability to the people.” RSA 91 - A:1 (2013). Thus, “[w] hen a public public access to the actions, discussions and records of all public bodies, and society. The purpose of this chapter is to ensure both the greatest possible “Openness in the conduct of public business is essential to a democratic N.H. at 476. Specifically, the preamble to RSA chapter 91 - A provides: purpose of the Right - to - Know Law in” the statute itself. City of Nashua, 141 provided the weight to be given one side of the balance[] [by] declaring the interest in nondisclosure.” I d. We have stated that “[t]he legislature has against the government’s interest in nondisclosure and the individual’s privacy The third step requires balancing “the public interest in disclosure

irrelevant to the question of access.” Lambert, 157 N.H. at 383. omitted). Conversely, “an individual’s motives in seeking disclosure are Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106, 111 (2005) (quotation nonetheless prefer, albeit for other reasons, that the information be released.” purpose, disclosure will not be warranted even though the public may at 111 (quotation omitted). “If disclos ing the information does not serve this to the public about what its government is up to.” N.H. Right to Life, 169 N.H. the Right - to - Know Law ’s purpose, which is “to provide the utmost information The legitimacy of the public’s interest in disclosure, however, is tied to

public corruption about an elected official.” CREW II, 840 F. Supp. 2d at 234. manner in which the [Department of Justice] handled high profile allegations of not be a substantial public interest in disclosure of documents regarding the 226 (D.D.C. p. 20 2012) (CREW II), found it “difficult to understand how there could Thus, for instance, the court in CREW v. U.S. Dept. of Justice, 840 F. Supp. 2d the seriousness of the m isconduct alleged” (quotation and brackets omitted)). the private interest in exemption, the rank of the public official involved and ordinarily considers, when balancing the public interest in disclosure against L appin, 680 F. Supp. 2d p. 19 192, 199 (D.D.C. 2010) (stating that “[t]he Court misconduct will bear upon the strength of the public interest. Cf. Coleman v. the rank of the official being investigated and the seriousness of the alleged comprehensive and accurate.” Fine, 823 F. Supp. at 898. We also note that significant interest in knowing that a governm ent investigation is 20

HICKS, CONBOY, and BASSETT, JJ., concurred.

argument. See Chatman, 163 N.H. at 326. In light of our decision, we need not address the plaintiff’s constitutional

“not. . . outweigh[] the public’s interest in disclosure”). responses could be released to the public,” but finding that this possibility did reluctant to disclose information to investigators” ou t of concern “that their possibility that an audit investigation may be compromised if interviewees are Legislative Budget Assistant, 148 N.H. 551, 556 ( p. 20 2002) (acknowledging “a test adequately addresses any concerns about deterrence. Cf. Goode v. N.H. nondisclosure against the public’s interest in disclosure under our established balancing of the employees’ interests in privacy and the State’s interest in r etaliation.” Hounsell, 154 N.H. at 5. We are confident that the proper investigations, for fear of public embarrassment, humiliation, or even deter the reporting of misconduct by public employees, or participation in such records underlying, or arising from, internal personnel investigations would