2021-0146, Petition of the State of New Hampshire

brief), for defendant Nic h olas Fuchs. Law Office of Carl D. Olson, of Londonderry (Carl D. Olson, on the joint

Hallock - Saucier. Peters, of Manchester (Robin D. Melone on the joint brief), for defendant Jeffrey brief; Albert E. Scherr, of Concord, on the joint brief; and Wadleigh, Starr & and Henry R. Klementowicz orally); R. Peter Decato, of L ebanon, on the joint Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief, American Civil Liberties Union of New Hampshire Foundation, of

State. brief, and Samuel R.V. Garland, assistant attorney general, orally), for the John M. Formella, a ttorney g eneral (Elizabeth Velez, attorney, on the

No. 2021 - 0146 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

“Thus,” t he court elaborated, “if the State provides discovery of documents that from sharing what is otherwise available to the general public upon demand.” however, “ordinarily issue a protective order that gags the parties and counsel cases by issuing protective orders, the court explained that it would not, Acknowledging that it had the authority to supervise discovery in criminal seal and associated motions for reconsideration in all three cases. reconsideration in the cases against Fuchs and Johnson; and (3) motions to protective order in the case against Hallock - Saucier; ( p. 2 2) motions for day.” In that subsequent order, the court denied the State’s: (1) motion for a margin o rder, referencing a “separate narrative order to be issued within the In the case against Hallock - Saucier, the court denied the motion by

showing. In both cases, the State moved for reconsideration. privacy. The court implicitly invited the State to make such a particularized or particularized reasons, their disclos ure would result in an invasion of to - Know Law, see RSA chapter 91 - A ( p. 2 2013 & Supp. 202 1), unless, for specific material may constitute public records subject to disclosure under the Right by margin orde r, without prejudice. In each case, the court opin ed that the In the cases against Fuchs and Johnson, the court denied the motions,

State’s motions for protective orders.” denied those motions, Johnson filed a notice that “he no longer assents to the protective order append ed to the State’s motion although, after the court and the Defendant.” Counsel for each defendant assented to the proposed information contained therein with anyone other than Defense Counsel’s staff or further disseminating these confidential documents and the confidential case, seeking an order that would prohibit “Defense Counsel. . . from sharing t he State filed a motion for a protective order of discovery materials in each court’s authority under New Hampshire Rule of Criminal Procedure 1 p. 2 2(b)(8), N.H. 325, 330 (199 5); Brady v. Maryland, 373 U.S. 8 3, 87 (1963). Citing the because the information was potentially exculpatory. See State v. Laurie, 139 defen dant with information from one or more police officer’s personnel file s In each case, the Stat e determined that it was required to provide the arises out of three separate criminal cases, each against one of the defendants. contents of documents in the record. This petition for original jurisdiction The following facts were recited in the trial court’s order or relate the

We reverse and remand. t he defendants, Nicholas Fuchs, Jacob Johnson, and Jeffrey Hallock - Saucier. J.) denying the State’s motions for protective orders in separate cases against R. 11, seeking certiorari review of a decision of the Superior Court (Schulman, HICKS, J. The State filed a petition for original jurisdiction, see Sup. Ct.

joint brief, for defendant Jacob Johnson. Alexander J. Vitale, New Hampshire public defender, of Concord, on the p. 3 3

confidentiality of the law enforcement officer[s’] personnel records while orders at issue, t he State con tended that they were “necessary to ensure the under RSA 105:1 p. 3 3 - b. In requesting that the trial court grant the protective personnel file information is not confidential once it is disclosed to a defendant The State first argues that the trial court erred in concluding that police

is de novo.” Id. (quotation s omitted). ruling is based on its construction of a statute,” however, “our review of discreti on standard.” Id. at 184 (quotation omitted). When “the court’s management and related issues deferentially under our unsustainable exercise G enerally, we “review trial court decisions regarding discovery

exercised its discretion or acted arbitrarily, unreasonably, or capriciously.” Id. respect to jurisdiction, authority or observance of the law, or unsustainably for writ of certiorari entails examining whether the court acted illegally with 174 N.H. 176, 180 (2021). “Our review of the trial court ’ s decision on a petition right, but rather at the court ’ s discretion.” Petitio n of N. H. Div. of State Police, “Certiorari is an extraordinary remedy that is not granted as a matter of

only the trial court’s rulings on the protective orders are now at issue. review of the trial court’s de nials of the State’s motions to seal. Accordingly, this court, which we accepted. Thereafter, the State withdrew its request for Hallock - Saucier. Th e State then filed it s petition for original jurisdiction with pleadings, and denied the State ’s motion to reconsider in the case against the State to seek review in this court, accepted redacted copies of prior T he trial court subsequently stayed the proceedings in each case to allow

on RSA 105:1 p. 3 3 - b to be “misplaced.” See RSA 105:13 - b (2013). “not issue gag orders in blank.” The court als o considered the State’s reliance the information would result in an invasion of privacy,” but stated that it would court invited t he State “to make a fact - specific case that public disclosure of practices and officer discipline] would constitute an invasion of privacy.” The whether the release of. . . records [relating to police internal personnel with a fact - specific balancing test” that “requires the court to determine “did away with the categorica l approach taken by Fenniman and replaced it and discipline records.” It then note d that our decision in Union Leader Corp. “fostered a culture of confidentiality with respect to internal police misconduct “Fenniman did not actually require the issuance of protective orders,” it v. Town of Salem, 173 N.H. 345, 357 (2020). The court observed that while Portsmouth, 173 N.H. 325, 337 (2020), and our decision in Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993), overruled by Seacoast Newspapers v. City of Right - to - Know Law had recently changed with our overruling of Union Leader The court observed sua sponte that the legal landscape regarding the

RSA 91 - A: p. 4 4, a protective order is inappropriate.” are subject to mandatory public disclosure under the Right to Know statute, 4

the file in camera and make a determination as to whether it the officer to deliver the file to the judge. T he judge shall examine cause exists, the judge shall order the police department employing relevant to that criminal case. If the judge rules that probable that probable cause exists to believe that the file contains evidence that criminal case, unless the sitting judge makes a specific rul ing 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

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

guilt. p aragraph 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

Confidentiality of Personnel Files.

RSA 105:13 - b provides:

the statutory scheme.” Id. statutory language in light of the policy or purpose sought to be advanced by which enables us to better discern the legislat ure’ s intent and to interpret phrases in isolation, but rather within the context of the statute as a whole, absurd or unjust result.” Id. “Moreover, we do not consider words and all parts of a statut e together to effectuate its overall purpose and avoid an add language that the legislature did not see fit to include.” Id. “We construe statute as written and will not consider what the legislature might have said or to its plain and ordinary meaning.” Id. “We interpret legislative intent from the language of the statute itself, and, if possible, construe that language according Petition of N. H. Div. of State Police, 17 p. 4 4 N.H. at 184. “We first look to the legislature as expressed in the words of the statute considered as a whole.” When engaging in statutory interpretation, we discern “the intent of the

context of the statute as a whole.” overlooks the statute’s plain language, statutory purpose, and disregards the that the trial court’s interpretation of RSA 10 p. 5 5:13 - b is “erroneous because it evidence, once disclosed, must be kept confidential.” The State now contends concluding that nothing in that statute “suggests that . . . exculpatory the confidentiality of police personnel files. The trial court disagreed, evidence in a criminal matter.” The State cited RSA 105:1 3 - b as authority for meeting the State’s competing interest in providing potentially exculpatory 5

N.H. 136, 142 (2009) (quotation omitted). We conclude that the title evinces legislature’ s intent in enacting the statute.” Garand v. Town of Exeter, 1 p. 5 59 conclusive of its interpretation, it provides significan t indication of the Files.” RSA 105:13 - b (bolding omitted). “While the title of a statute is not 174 N.H. at 184. We begin with the statute’s title: “Confidentiality of Personnel the context of the statute as a whole. See Petition of N. H. Div. of State Police, and Gantert, they are consistent with the statute’s language considered within Even if, as the defendants argue, these statements are dicta in Duchesne

confidential by statute.” RSA 10 p. 5 5:13 - b for the proposition that “police personnel files a re generally Similarly, i n Gantert v. City of Rochester, 168 N.H. 640, 646 (2016), we cited then yields to the rights of criminal defendants under Brady and Laurie. acknowledged the general confidentia lity of police personnel records, which officer personnel records.” Duchesne, 167 N.H. at 780. In so doing, we tacitly countervailing interests of the police and the public in the confidentiality of which is designe d to balance the rights of criminal defendants against the constitutional magnitude, the legislature has enacted a statute, RSA 105:13 – b, disclosure under Brady and Laurie: “Although the prosecutorial duty. . . is of recognized the link between RSA 105:13 - b and the prosecutor’s duty of In Duchesne v. Hillsborough County Attorney, 167 N.H. 774 (2015), we

advanced by the statutory scheme.” Id. interpretation likewise fails to consider “the policy or purpose sought to be whole. See Petition of N. H. Div. of State Police, 174 N.H. at 184. Their because it fails to place that sentence within the context of the statute as a in particular, the word “remainder.” We decline to adopt their interpretation The defendants’ construction focuses on the statute’s final sentence and,

criminal case.” file — that which is not produced to the defense — is to remain confidential in the text of the statute is clear that only the remainder of a police officer’s personnel confidentiality of exculpatory evidence.” Rather, the defendants argue, “the hand, agree with the trial court that nothing in the text of th e statute “requires defendant’s constitutional rights to discovery.” The defendants, on the other personnel files broadly confidential with limited exceptions to protect a The State argues that RSA 10 p. 5 5:13 - b’s plain language “makes police

RSA 10 p. 5 5:13 - b.

returned to the police department employing the officer. remainder of the file shall be treated as confidential and shall be applicable rules regarding evidence in criminal cases. The case shall be released to be used as evid ence in accordance with all portions of the file which the judge determines to be relevant in the contains evidence relevant to the criminal case. Only those p. 6 6

while maintaining the confidentiality of those files for all other purposes. found in the personnel files of any police officer testifying in the crimi nal case turning over to a criminal defendant any exculpatory or relevant evidence department. Thus, r ead as a whole, the statute details the procedure for retains its general confidentiality and is to be returned to the employing police merely states that material not required to be disclosed to the defendant officer.” RSA 105:13 - b, III (emphasis added). Read in context, this sentence confidential and sh all be returned to the police department employing the The final sentence states: “The remainder of the file shall be treated as

other use is either required or permitted. explicit purpose of “be[ing] used as evidence.” Id. No further dissemination or added). Again, disclosure is tied to a partic ular criminal case and is for the all applicable rules regarding evidence in criminal cases.” Id. (emphasis relevant in the case shall be released to be used as evidence in accordance with added). “Only those portions of the file which the judge determines to be contains evidence relevant to the criminal case.” RSA 105:13 - b, III (emphasis cause, he or she is to review the file in camera to determine “whether it Duchesne, 1 p. 6 67 N.H. at 782; see RSA 105:13 - b, III. If the judge finds probable believe that the file contains evidence relevant to the particular criminal case.” unless the trial judge makes a specific finding that probable cause exists to of a police personnel file to examine the same for non - exculpatory evidence 167 N.H. at 782; see RSA 105:13 - b, III. “[T] his paragraph proh ibits the opening nonetheless be relevant to a case in which an officer is a witness.” Duchesne, “Finally, p aragraph III covers evidence that is non - exculpatory but may

N.H. at 781 (c itation omitted); see RSA 105:13 - b, II. issue is to be submitted to the court for in camera review.” Duchesne, 1 p. 6 67 exculpatory. It directs that, where such uncertainty exists, the evidence at whether evidence contained within police personnel files is, in fact, “[P] aragraph II covers situations in which there is uncertainty as to

required or permitt ed. defendant in a particular criminal case. No further dissemination is either disclosure required under paragraph I is explicitly tied to a particular criminal disclosed to the defendant.” RSA 105:13 - b, I (emphases add ed). The a police officer who is serving as a witness in any criminal case shall be at 781. Under paragraph I, “[e]xculpatory evidence in a police personnel file of police officers who appear as witnesses in criminal cases.” Duchesne, 1 p. 6 67 N.H. that the statute “addresses three situations that may exist with respect to Turning to RSA 105:13 - b ’s substantive provisions, we noted in Duchesne

confidentiality. disclosure under RS A 105:13 - b start with a presumption of general the legislature’s intent that police personnel files potentially subject to p. 7 7

Evidence Code[,]” it would be illogical to interpret, as defendants case” is prohibited “except by discovery pursuant to. . . the of such information from police officer personnel records “[i]n any sought is material to his or her defense.. . . Because the disc losure scheme, a defendant must convince a court that the information camera hearing under [the California Evidence Code]. Under such co nfidential unless ordered disclosed pursuant to a motion and in records and any information obtained from such records balanced statutory scheme that declares police officer personnel [the California Evidence Code] are part of an overall carefully It has repeatedly been stressed that the protective order sections of

Id. at 252, 253 (footnote omitted). The court reasoned: the use of disclosed Brady material from one public defender case to another.” case specific limit,” and that a protective order could not, for instance, “restrict specific court proceeding evidenced the Legislature ’ s i ntent not to impose a “the lack of language in such subdivision limiting use of the material to the California Evidence Code). The court rejected the defendants’ conten tions that pursuant to applicable law. ’” Id. at 259 (quoting pertinent provision of the disclosed material ‘ not be used for any purpose other than a court proceeding The provision construed in Alford requires a court “to order that the

persuasive. those duties, the Cal ifornia Court of Appeal employed reasoning that we find any particular case.” Id. at 262. Nevertheless, in interpreting the scope of “both broad discretionary and mandatory duties to issue a protective order in Unlike RSA 105:13 - b, the California statute explicitly imposes upon courts 2001) (quotation omitted), rev ’ d on other grounds, 63 P.3d 228 (Cal. 2003). personnel records.” Alford v. Superior Ct., 10 p. 7 7 Cal. Rptr. 2d 245, 255 (Ct. App. relevant information and the legitimate concerns for confidentiality of police respects, is also “intended to balance the need of criminal defendants to construing a California statute that, while different from RSA 105:13 - b in many S upport for the foregoing statutory interpretation in cludes a case

exclusio alterius (‘ the mention of one thing excludes another ’)”). N.H. 2 p. 8 80, 282 (2012) (noting “[t] he familiar doctrine of expressio unius est generally confidential. See Gentry v. Warden, N. N. H. Corr ectional Facility, 163 legislature directed that for all other purposes, the information remains directing limited disclosure to specific persons for specific purposes, the statute as a whole. By starting with a presumption of confidentiality and then legislature did not see fit to include). Moreover, the defendants fail to read the N.H. at 184 (noting that we will not add language to a statute that the mandate appears in the statute. See Petition of N.H. Div. of State Police, 1 p. 7 74 confidentiality o r that a protective order be issued for” such evidence. No such disclosure of exculpatory information without conditions” and “does not require The defendants argue, to the contrary, that RSA 105:13 - b “mandates 8

Law] case.” when it sua sponte “reframed the assented - to criminal discovery motions as a [Right - to - Know In light of this holding, we need not address the State’s contention that the trial court erred 1

and “are unconstitutionally one - sided.” proposed protective orders impermissi bly act as a prior restraint on speech” Article 22 of the New Hampshire Constitution.” They contend that “the under the First Amendment to the United States Constitution and Part I, under the circumstances presented in these three cases is unconstitutional Finally, t he defendants argue that “the issuance of the protective order [s]

protective orders in the cases now before us. 1 the State has shown good cause, as a matter of law, for the issuance of confidentiality accorded police personnel files by RSA 105:13 - b, we hold that re stricted, or deferred, or make such other order as is appropriate.”). G iven the court may at any time order that discovery required hereunder be denied, See N.H. R. Crim. P. 12(b)( p. 8 8) (“Upon a sufficient showing of good cause, the failing to find good cause for the issuance of protective orders in these cases. interpretation of RSA 105:13 - b. We also conclude that the trial court erred in For all of the above reasons, we conclude that the trial court erred in its

[such] information is released.” Alford, 107 Cal. Rptr. 2d at 260. completely destroy the carefully crafted statutory process by which disclosure or use beyond the defendant in that particular case “would disclosed specifically to the defendant, to interpret the statute to allow exculpatory or relevant in a particular criminal case, and then is to be because material disclosed under RSA 105:13 - b must first be determined to be Much like the California Court of Appeal in Alford, we conclude that

471 P.3d 3 p. 8 83, 392 n.6 (Cal. 2020). 2003), disapproved on other grounds by Facebook v. Superior Ct. of San Diego, the peace officer.” Alford v. Superior Ct., 63 P.3d 228, 234 (Cal. its effectiveness by furthering the legitimate interests of both the defendant and California Evidence Code] harmonizes the entire statutory scheme and retains we find instructive: “As the Court of A ppeal reasoned, its interpretation of [the reversed Alford on other grounds, it approved the interpretive reasoning that Id. at 260 (citations omitted). Although the Supreme Court of California

process by which [such] information is released. interpret would completely destroy the carefully cra fted statutory any defendant and for use in any other court proceeding. To so released to one defendant, the information is free to be shared with pursuant to applicable law” to mean that once information is would have us do, the phrase “other than a court p roceeding p. 9 9

State has shown good cause, as a matter of law, for the issuance of protective g iven the confidentiality accorded police personnel files by RSA 105:13 - b, the 12(b)(8) also requires good cause for the issuance of a protective order and, Mass. 2012). As noted previously, New Hampshire Rule of Criminal Procedure Procedure 26(c). See, e.g., United States v. Bulger, 283 F.R.D. 46, 5 1 - 5 2 (D. Federal R ule of Criminal Procedure 16 (d) for that of Federal Rule of Civil t he criminal context by, in particular, substituting the good cause standard o f Although Seattle Times involved civil litigation, courts have applied it in

Cir. 1 p. 9 986). obtained from other sources.” Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st context; and (3) the order does not restrict the dissemination of information Rule of Civil Procedure 26(c)]; (2) the restriction is limited to the discovery criteria are met: (1) there is a showing of good cause as required by [Federal Appeals, Seattle Times “held that the first amendment is not offended if three Id. at 32 (citation omitted). As summarized by t he First Circuit Court of

control might suggest in other situations. not raise the same specter of government censorship that such Thus, continued court control over the discovered information does to information made available only f or purposes of trying his suit. legislative grace. A litigant has no First Amendment right of access state legislature, the processes thereunder are a matter of processes. As the Rules authorizing discovery were adopted by the wish to disseminate on ly by virtue of the t rial court’ s discovery As in all civil litigation, petitioners gained the information they

d istinct character istic rel evant to a First Amendment analysis: Id. at 22. The court specifically noted that discovery materials possess a in advance of trial, information gained through the pretrial discovery process.” whether parties to civil litigation have a First Amendment right to disseminate, In Seattle Times, the United States Supreme Court addressed “the issue

on remand and adequately address any First Amendment concerns. v. Rhinehart, 467 U.S. 20 (1 p. 9 984), and its progeny should guide the trial court are insufficient to trigger review. Nevertheless, we note that Seattle Times Co. record.” (Citation omitted.) Such oblique reference s to constitutional concerns order would be a prior restraint on speech relating to a matter of public mandatory public disclosure under the Right to Know s tatute, . . . [a protective] that “if the State provides discovery of documents that are subject to defendant did not raise before the trial court.”) The trial court hypoth esized N.H. 47, 48 (2003) (noti ng that, generally, “we will not review any issue that the because they were not presented to the trial court. See State v. Blackmer, 149 We decline to address the merits of the se constitutional arguments p. 10 10

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

requisite protective orders in these cases. orders in the cases now before us. We remand for the trial court to issue the