2019-0279, New Hampshire Center for Public Interest Journalism & a. v. New Hampshire Department of Justice

plaintiff Union Leader Corporation. Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief), for Massachusetts (Gregory V. Sullivan on the brief and orally), and Douglas, Malloy & Sullivan, Lawyers Professional Corporation, of Hingham,

Hampshire. Inc., Keene Publishing Corporation, and American Civil Liberties Union of New Telegraph of Nashua, Newspapers of New England, Inc., Seacoast Newspapers, for plaintiffs New Hampshire Center for Public Interest Journalism, The orally), and Moir & Rabinowitz, PLLC, of Concord (James H. Moir on the brief), Bissonnette and Henry R. Klementowicz on the brief, and Mr. Bissonnette American Civil Liberties Union of New Hampshire, of Concord (Gilles R.

NEW HAMPSHIRE CENTER FOR PUBLIC INTEREST JOURNALISM & a.

No. 2019 - 0279 Hillsborough - southern judicial district

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

a list of police officers who have engaged in m isconduct reflecting negatively on The trial court recited the following facts. The DOJ currently maintains

I. Facts

constitute invasion of privacy.” RSA 91 - A:5, IV. contends, the EES constitutes an “other file[] whose disclosure would and remand for it to determine, in the first instance, whether as the DOJ practice” or a “personnel file.” Nonetheless, we vacate the trial court’s de cision exempt from disclosure under the Right - to - Know Law as an “internal personnel determination s that the EES is neither “confidential” under RSA 105:13 - b nor “personnel file” under RSA 91 - A:5, IV ( p. 2 2013). We uphold the trial court’s Right - to - Know Law either because it is an “internal personnel practice” or a under RSA 105:13 - b (2013) and that it is exempt from disclosure under the the trial court rejec ted the DOJ’s arguments that the EES is “confidential” Article 8 of the New Hampshire Constitution. In denying the motion to dismiss, public pursuant to the Right - to - Know Law, RSA chapter 91 - A, and Part I, officers with pending requests to be removed from the list, must be made the “Excul patory Evidence Schedule” (EES), excluding the names of police American Civil Liberties Union of New Hampshire, seeking a declaration that England, Inc., Seacoast Newspapers, Inc., Keene Publishing Corporation, and The Telegraph of Nashua, Uni on Leader Corporation, Newspapers of New petition of the plaintiffs, New Hampshire Center for Public Interest Journalism, order of the Superior Court (Temple, J.) denying its motion to dismiss the HICKS, J. The New Hampshire Department of Justice (DOJ) appeals an

Defense Lawyers, as amicus curiae. on the memorandum of law) for the New Hampshire Association of Criminal Brennan, Lenehan, Iacopino & Hickey, of Manchester (Jaye L. Rancourt

Association of Chiefs of Police, as amicus curiae. Daniel M. Conley, of Goffstown, on the brief for the New Hampshire

Jajuga, as amici curiae. memorandum of law), for the New Hampshire Police Association and Matthew Milner & Krupski, PLLC, of Concord (John S. Krupski on the

on the brief and orally), for the New Hampshire Department of Justice. Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general, p. 3 3

court so ordered. T his appeal f ollowed. constituted a final decision on the merits in favor of the plaintiffs, and the trial motion. The parties subsequently stipulated that the trial court’s order constitute in vasion of privacy.” RSA 91 - A:5, IV. The trial court denied the because i t constitutes a “personnel” or “other file[] whose disclosure would to - Know Law, either because it relates to “internal personnel practices,” or the DOJ maintained that the EES is exempt from disclosure under the Right argued that disclosure of the EES is barred by RSA 105:1 p. 3 3 - b. Alternatively, ground that they failed to state a legal basis for the relief sought. The DOJ The DOJ subsequently moved to dismiss the plaintiffs’ action on the

of the New Hampshire Constitution.” record that must be made public under RSA Chapter 91 - A and Part I, A rticle 8 of misconduct affecting the officer’s credibility or truthfulness,” i s “a public placement on the EES list” or for whom there has not “been a sustained finding “the unredacted EES list,” excluding officers who have “challenged their brought the instant petition seeking, among other things, a declaration that removed from the EES. The DOJ denied those requests, and the plaintiffs that would exclude information concerning officers with pending requests to be list. Some of the plaintiffs then requested an un redacted version of the EES EES that reda cted any personal identifying information of the officers on the recent version of the EES. The DOJ responded by providing a version of the The plaintiffs filed requests under the Right - to - Know Law for the most

whether an officer’s actual personnel file might contain exculpatory evidence.” reference point, to alert a prosecutor to the need to initiate an i nquiry into personnel file. Rather, according to the DOJ, the EES “functions solely as a The EES does not physically reside in any specific police officer’s

EES.” label capturing at a categorical level the behavio r that placed the officer on the specific conduct of any officer,” but rather “contains a succinct, often one - word the list. The DOJ asserts that the EES “offers no precise information as to the and (5) category or type of behavior tha t resulted in the officer being placed on department employing the officer; ( p. 3 3) date of incident; ( p. 4 4) date of notification; spreadsheet containing five columns of information: (1) officer’s name; (2) negatively on t he detective’s character and credibility”). The EES is a disclose certain employment records of a testifying detective that “reflect[ed] (1995) (overturning a defendant’s murder conviction because the State failed to List,” is now called the EES. See State v. Laurie, 139 N.H. 325, 327, 330, 333 their credibility or trustworthiness. The list, formerly known as the “Laurie 4

background and operation of the EES. See Duchesne v. Hillsborough County Before addressing the specific issues on appeal, we briefly discuss the

B. The Background of the EES

accommodation of the competing interests involved.” Id. (quotation omitted). materia, are interpretatively helpful, especially in understanding the necessary Information Act (FOIA). Id. “Such similar laws, because they are in pari acts for guidance, including federal interpretations of the federal Fre edom of at 103. We also look to the decisions of other jurisdictions interpreting similar disclosure and interpret exemptions restrictively. N.H. Right to Life, 169 N.H. interpreting the Right - to - Know Law, we broadly construe provisions favoring 103 (quotation omitted); see also N.H. CONST. pt. I, art. 8. Accordingly, when records shall n ot be unreasonably restricted.” N.H. Right to Life, 169 N.H. at requirement that the public’s right of access to governmental proceedings and A:1 (2013). “Thus, the Right - to - Know Law furthers our state constitutional records of all public bodies, and their accountability to the people.” RSA 91 ensure both the greatest possible public access to the actions, discussi ons and Unit, 169 N.H. 95, 103 (2016). The purpose of the Right - to - Know Law “is to and constitutional objectives. N.H. Right to Life v. Dir., N.H. C h aritable Trusts providing the utmost information in order to best effect uate the law’s statutory We resolve questions regarding the Right - to - Know Law with a view to

said nor add words that it did not see fit to include. Id. to modific ation. Id. We will neither consider what the legislature might have When the language of the statute is clear on its face, its meaning is not subject possible, we ascribe the plain and ordinary meanings to the words used. Id. as a whole. Id. We first examine the language of the statute, and, where the intent of the legislature as expressed in the words of the statute considered Darbouze v. Champney, 160 N.H. 695, 697 (2010). We are the final arbiter of interpretation. We review the trial court’s statutory interpretation de novo. Resolving the issues in this appeal requires that we engage in statutory

denial of a motion to dismiss. Id. at 725 - 26. susceptible of a construction that would permit recovery, we will uphold the the applicable law. Id. When the facts alleged by the plaintiffs are reasonably then engage in a threshold inquiry that tests the facts in the complaint against all reasonable inferences in the light most favorable to the plaintiff s. Id. We 172 N.H. 721, 725 (2019). We assume the pleadings to be true and construe construction that would permit recovery. Weare Bible Baptist Church v. Fuller, whether the allegations in the pleadings are reasonably susceptible of a In reviewing a trial court’ s ruling on a motion to dismiss, we consider

A. Standards of Review

II. Analysis p. 5 5

“Laurie List” procedure and, for the first time, created the state - wide EES According to the DOJ, in early 2017, the attorney general updated the

Id.

incident is ultimately determined to constitute a Laurie issue. makes a final decision, the chief notifies the county attorney if the meeting with the chief to present facts or evidence. After the chief does, the chief notifies the officer involved, who may request a determines whether the incident constitutes a Laurie issue. If it chief sends a memorandum to the chief, who reviews it and conduct identified as potential Laurie material. If so, the deputy determines whether the incident involves any of the catego ries of including investigations conducted by other police personnel, and First, the deputy chief reviews all internal investigation files,

procedure: departments to identify and re tain Laurie material in their files. Id. Under that omitted). The memo included a sample policy and procedure for police possible disclosure to a defendant in a criminal case.” Id. at 646 (quotation personnel file, “so that it is available for in camera review by a court and material, and the memo required that such material be retained in an officer’s categories of conduct that generally should be considered potential Laurie county attorneys and law enforcement agencies, the attorney general identified subject to possible Laurie disclosure. Id. at 64 p. 5 5 - 4 6. In a 2004 memo to all compile a confidential, comprehensive list of officers in each county who are 645. In 2004, the attorney general placed responsibility on county attorne ys to share information about officer conduct with prosecutors. Gantert, 168 N.H. at Hampshire law enforcement authorities began developing “Laurie Lists” to employment files and records, see Laurie, 139 N.H. at 327, 330, 333, New prosecution’s failure to disclose information found in a police detective’s After we granted the criminal defendant in Laurie a new trial due to the

(199 p. 5 5); see Duchesne, 1 p. 6 67 N.H. at 778. behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 learn of any favorable evidence known to the others acting on the government’s same office. Id. at 778. Accordingly, individual prosecutors have “a duty to information exists; rather, we imput e knowledge among prosecutors in the satisfied merely because an individual prosecutor is unaware that exculpatory defendant requests it. Duchesne, 167 N.H. at 777. Moreover, t he duty is not The duty to disclose such information applies regardless of whether the U.S. 83, 87 (1963); see also United State s v. Bagley, 473 U.S. 667, 675 (1985). State’s witnesses. Duchesne, 167 N.H. at 777; see Brady v. Maryland, 373 exculpatory information and information that may be used to impeach the 640, 645 - 47 (2016). As relevant here, prosecutors have a duty to disclos e Attorney, 167 N.H. 774, 777 - 8 0 (2015); Gantert v. City of Rochester, 168 N.H. 6

returned to the police department employing the officer. remainder of the file shall be treated a s confidential and shall be applicable rules regarding evidence in criminal cases. The case shall be released to be used as evidence in accordance with all portions of the file which the judge determines to be relevant in the contains evidence relevant to the criminal c ase. Only those the file in camera and make a determination as to whether it the officer to deliver the file to the judge. The judge shall examine cause exists, the judge shall order the police department employing relevant to that criminal case. If the judge rules th at probable that probable cause exists to believe that the file contains evidence that criminal case, unless the sitting judge makes a specific ruling purposes of obtaining or reviewing non - exculpatory evidence in witness or prosecutor in a criminal case shall be opened for the III. No personnel file of a police officer who is serving as a

is exculpatory, an in camera review by the court shall be required. II. If a determination cannot be made as to whether evidence

guilt. paragraph is an ongoing duty that extends beyond a finding of evidence that should have been disclosed prior to trial under this disclosed to the defendant. The duty to disclose exculpatory officer who is serving as a witness in any criminal case shall be I. Exculpatory evidence in a police personnel file of a police

EES. RSA 105:13 - b provides: The DOJ first argues that RSA 105:13 - b precludes the disclosure of the

C. RSA 105:13 - b

county - level Laurie lists to be public documents. inadvertently reveal an identity,” and that it has never deemed the former information on the EES, such as a name or information that might agreements. The DOJ maintains that it “has not publicly disclosed identifying arbitrations, or other appeals provi ded to police officers in collective bargaining relief from a sustained finding through union grievance procedures, occurred.” (Quotation s omitted). According to the DOJ, an officer may obtain evidenc e obtained during an investigation was sufficient to prove that the act findings against an officer warrant placement on the EES, meaning that “the of their officers’ personnel files.” The DOJ contends that only “sustained” names to be added to the EES come to the DOJ from police chiefs after review officer’s name on the list is “similar to the county Laurie lists, except that maintained by the DOJ. The DOJ asserts that the process for putting a police p. 7 7

neither consider what the legislature might have said nor add words that it did is maintained, it would have so stated. Darbouze, 160 N.H. at 69 p. 7 7 (“We will 105:13 - b to apply more broadly to personnel information, regardless of where it personnel file of a specific police officer. Had the legislature inten ded RSA The express focus of RSA 105:13 - b is on information maintained in the

relevant to the particular criminal case.” Id. finding that pr obable cause exists to believe that the file contains evidence the same for non - exculpatory evidence unless the trial judge makes a specific law, this paragraph prohibits the opening of a police personnel file to examine a case in which an officer is a witness.” Id. at p. 7 782. “Consistent with our case III covers evidence that is non - exculpatory but may nonetheless be relevant to is to be submitted to the court for in camera review.” Id. “Finally, paragraph Paragraph II “directs that, where such uncertainty exists, the evidence at issue evidence contained within police personnel files is, in fact, excu lpatory.” Id. paragraph II covers situations in which there is uncertainty as to whether requires that such information be disclosed to the defendant.” Id. “Next, the personnel files of such officers con tain exculpatory evidence, paragraph I witnesses in criminal cases. See Duchesne, 167 N.H. at 781. “First, insofar as situations involving the personnel files of police officers who appear as maintained in a po lice officer’s personnel file. RSA 105:13 - b addresses three By its express terms, RSA 105:13 - b pertains only to information

statute. testifying. Nonetheless, we reject the DOJ’s overly broad interpretation of the outside of the context of a specific criminal case in which a police officer is 105:13 - b constitutes an exception to the Right - to - Know Law and that it applies For the purposes of this appeal, we assume without deciding that RSA

pe rsonnel information from the officer’s personnel file.” “physical location of the EES in no way alters the fact that it contains reside in any one police officer’s personnel file,” the DOJ maintains that the Constitutions allow.” Although the DOJ concedes that “the EES itself does not maximum confidentiality that the United St ates and New Hampshire Otherwise, the DOJ maintains, police personnel files are “cloak[ed] . . . with the to be disclosed to a criminal defendant under certain circumstances. second allowing non - e xculpatory evidence in a testifying officer’s personnel file testifying officer’s personnel file be disclosed to a criminal defendant and the two narrow exceptions,” the first requiring that exculpatory evidence in a the DOJ, “RSA 105:13 - b makes police personnel files strictly confidential with I (2013), and avers that RSA 105:13 - b is “just such a statute.” According to s uch public bodies. . . except as otherwise prohibited by statute,” RSA 91 - A:4, right to inspect all government records in the possession, custody, o r control of The DOJ reasons that the Right - to - Know Law grants every citizen “the

RSA 105:13 - b. p. 8 8

“personnel file” is not ambiguous. v. Priceline.com, Inc., 172 N.H. 2 p. 8 8, 38 (2019). The reference to a police officer’s administrative gloss doctrine applies only when a statute is ambiguous. State such a construction conforms to the legislative intent.”). However, t he impleme ntation without any interference by the legislature is evidence that interpretation given a statute of doubtful meaning by those responsible for its principle of statutory construction that a longstanding practical and plausible v. State Tax Comm’n, 113 N.H. 511, 514 (1973) (“It is a well - established ‘administrative gloss’ on the statute.” See New Hampshire Retai l Grocers Ass’n legislature’s “lack of. . . interference” with that practice “comprises longstanding practice of keeping the EES confidential coupled with the interpretation under the admin istrative gloss doctrine. The DOJ contends its We also decline the DOJ’s invitation to defer to its long standing statutory

“information” or “practices.” certain circumstances). RSA 105:13 - b does not refer to personnel the purposes of obtaining or reviewing non - exculpatory evidence” except under (providing that the “per sonnel file of a police officer” shall not be opened “for 105:13 - b, I (concerning “[e] xculpatory evidence in a police personnel file”), III file” and the exculpatory or non - exculpatory evidence contained therein. RSA added). By contrast, RSA 105:13 - b refers only to a police officer’s “personnel file or information.” Id. at 605 (quotation and brackets omitted; emphasis broader language than RSA 105:13 - b. There, the statute referred to “personnel The court in Worcester Telegraph & Gazette was interpreting a statut e with of the language used in RSA 105:13 - b, we cannot accept the DOJ’s invitation. poli ce officer personnel files,” RSA 105:13 - b governs. Given the plain meaning “concerns officer misconduct” and “derives fro m disciplinary records within The DOJ invites us to do the same, asserting that because the EES

(quotations omitted). nature or character of the documents,” rather than “their label.” Id. at 606 determine whether the documen ts were exempt, the court examined “the “personnel file or information.” Id. at 604 (quotation and brackets omitted). To whether the documents were exempt under a statutory exemption for records law. Worcester Tel. & Gazette, 7 p. 8 87 N.E.2d at 603 - 04. The issue was of a police department internal affairs file under the Massachusetts public reliance is misplaced. In that case, a newspaper sought access to the contents & Gazette v. Chief of Police, 787 N.E.2d 602, 606 (Mass. App. Ct. 2003). Its In arguing for a contrary result, the DOJ relies u pon Worcester Telegram

disclosure of the EES is not governed by RSA 105:13 - b. itself does not reside in any one police officer’s personnel file.” Therefore, not see fit to include.” (quotation omitted)). As the DOJ concedes, “the EES p. 9 9

exemption to apply to those records because “they document[ed] procedures 136 N.H. at 62 5, 626. We broadly construed the “internal personnel practices” lieutenant who had been accused of making harassing phone calls. Fenniman, compiled” during a police department’s internal investigation of a department op. at 2). In that case, the plaintiff sought “memoranda and other records Leader Corp. v. Town of Salem, 173 N.H. ___, ___ (decided May 2 p. 9 9, 2020) (slip Portsmouth, 173 N.H. ___, ___ (decided May 29, 2020) (slip op. at 9) and Union 136 N.H. 624 (1993), overruled b y Seacoast Newspapers, Inc. v. City of “internal personnel practices” exempt ion. Union Leader Corp. v. Fenniman, Until recently, Fenniman had been our seminal case interpreting the

1. Internal Personnel Practices

privacy.” Id. We address each exemption in turn. “person nel” or “other file[] whose disclosure would constitute invasion of record pertaining to “internal personnel practices” or because it is a RSA p. 9 91 - A:5, IV. The DOJ asserts that the EES is exempt either because it is a

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, [r] ecords pertaining to internal personnel practices; confidential,

disclosure disclosure under the Right - to - Know Law. RSA p. 9 91 - A:5, IV exempts from The DOJ next argues that RSA 91 - A:5, IV exempts the EES from

racial discrimination complaint was in the interviewees’ personnel files). when there was no evide nce that the investigation report of an employee’s Texas Public Information Act for “‘information in a personnel file’” did not apply S.W.3d 876, 883 - 8 4 (Tex. App. 2013) (concluding that the exemption under the . . . f iles” (quotation omitted)); cf. Abbott v. Dallas Area Rapid Transit, 4 p. 10 10 (discussing the exemption under the Right - to - Know Law for “personnel of RSA 105:13 - b. See Reid v. N.H. Attorney Gen., 16 p. 9 9 N.H. 509, 528 (2016) on the EES. Accordingly, t he EES is not a “personnel file” within the meaning personnel office, and, as the DOJ concedes, the DOJ does not employ officers (2011). The EES is maintained by the DOJ, not by a police department’s ‘personnel department.’” Milner v. Department of Navy, 562 U.S. 562, 570 human resources office” of an employer, “otherwise known . . . as the An employee’s “personnel file” is a file that is “typically maintained in the Nor is it doubtful whether the term “personnel file” applies to the EES. 10

interest in nondisclosure and the individual ’ s privacy interest in nondisclosure. Id. not warranted. Id. Finally, we balance the public interest in disclosure against the government ’ s of their government. Id. If d isclosing the information would not serve this purpose, disclosure is Disclosure of the requested information should inform the public about the conduct and activities mandates disclosure. Id. at 383. Second, we assess the public’s interest in disclosure. Id. Convention, 157 N.H. 375, 382 (2008). If no privacy interest is a t stake, the Right - to - Know Law privacy interest at stake that would be invaded by the disclosure. Lambert v. Belknap County Our well - established three - step analysis is as follows. First, we evaluate whether there is a 1

Instead, the DOJ presses its alternative argument that the EES constitutes an court’s finding that the EES is not a “personnel file” under RSA 91 - A:5, IV. N.H., 159 N.H. at 707. On appeal, the DOJ does not directly challenge the trial privacy would result from disclosure of the EES.” See Prof’l Firefighters of “need not conduct a . . . balancing test to determine whether an invasion of meaning of RSA 91 - A:5, IV. Having so found, the trial court concluded that it The trial court found that the EES is not a “personnel file” within the

2. Personnel and Other Files

DOJ’s “interna l personnel practice” argument. adopted in Seacoast Newspapers, Inc., we need go no further to reject the Because the DOJ does not argue that the EES meets the narrow definition we Fenniman. See Seacoast Newspapers, Inc., 173 N.H. at ___ (slip op. at 9). under Fenniman. The DOJ’s argument is unavailing given that we overruled The DOJ argues that the EES pertains to an “internal personnel practice”

in an invasion of privacy). 1 (setting forth a three - step analysis t o determine whether disclosur e will result See Prof’l Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H. 699, 707 (20 p. 10 10) test we have used for the other categories of records listed in RSA 91 - A:5, IV. are categorically exempt from disclosure and are not subject to the balancing Fenniman to the extent that it decided that records related to that exemption 11). In Union Leader Corp., 173 N.H. at ___ (slip op. at 2, 11), we overruled particular employee.” Seacoa st Newspapers, Inc., 173 N.H. at ____ (slip op. at does not apply to “information concerning the history or performance of a and practices governing an agency’s operations and employee relations,” and prac tices” exemption applies narrowly to records relating to the “internal rules personnel practices” exemption. We concluded that the “internal personnel 9), we overruled Fenniman to the extent that it broadly interpreted the “internal at ___ (slip op. at 2). In Seacoast Newspapers, Inc., 173 N.H. at ___ (slip op. at Newspapers, Inc., 173 N.H. at ___ (slip op. at 9); Union Leader Corp., 173 N.H. We recently overruled both aspects of Fenniman. See Seacoast

adopted a per se rule exempting such materials from disclosure. Id. at 627. internal personnel practice.” Id. at 626 (quotation omitted). In addition, we leading up to internal personnel discipline, a quintessential example of an p. 11 11

(slip op. at 2). Seacoast Newspapers, Inc., 173 N.H. at ___ (slip op. at 9); Union Leader Corp., 173 N.H. at ___ Law, see Fenniman, 136 N.H. at 625 - 26, and that Fenniman was overruled only months ago, see Fenniman still in effect, the EES might be per se exempt from dis closure under the Right - to - Know therefore, before the “Laurie L ist” existed. See Laws 1992, 45:1. We further observe that were We observe that RSA 105:13 - b was first enacted in 1992, before we decided Laurie, and, 2

490:3, concurred. BROWN, JJ., retired superior court justices, specially assigned under RSA HANTZ MARCONI and DONOVAN, JJ., concurred; ABRAMSON and

may litigate this issue on remand. 2 instance. See Union Leader Corp., 173 N.H. at ___ (slip op. at p. 11 11). The parties upon the DOJ’s alternative argument, and we decline to do so in the first Firefighters of N.H., 159 N.H. at 707. The trial court, however, did not rule disclosure of the EES would constitute an invasion of privacy. See Prof’l A:5, IV. The DOJ then asserts that, under our customary balancing test, “other file[] whose disclosure would constitute invasion of privacy.” RSA 91 -