2022-0321, American Civil Liberties Union of New Hampshire v. New Hampshire Division of State Police

curiae. Michael G. Eaton on the brief), for Bl ack Lives Matter Manchester, as amicus Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown and

the defendant. general (Jessica A. King, assistant attorney general, on the brief and orally), for John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

orally), for the plaintiff. Bissonnette and Henry R. Klementowicz on the brie f, and Gilles R. Bissonnette American Civil Liberties Union of New Hampshire, of Concord (Gilles R.

No. 2022 - 0321 Merrimack

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

and the proper focus of the public interest). N.H. 509, 5 p. 2 27 - 29 (2016) (expl aining the scope of the protected privacy interests 355 (2020) (describing the three - step analysis); Reid v. N.H. Attorney Gen., 169 the records at issue.” See Union Leader Corp. v. Town of Salem, 173 N.H. 345, its heavy bur den to shift the balance in favor of nondisclosure with respect to privacy under RSA 91 - A:5, IV, and concluded that the Division “failed to carry whether disclosure of the requested records would constitute an invasion of Next, the court conducted the applicable three - step analysis to determine prohibit disclosure of the records at issue in this case under RSA 91 - A:4, I.” appropriate. The court first found that “RSA 105:13 - b does not categorically for disclosure and found the redactions proposed by the ACLU to be 105:13 - b (2023); RSA 91 - A:5, IV. The trial court granted the ACLU’s request would constitute an invasion of privacy under RSA 91 - A:5, IV. See RSA are exempt from disclosure under RSA 105:13 - b and that their disclosure The Division objected to disclosure, arguing that the requested records

complaint seeking the same information. apparently, “has no intention of doing so in the future.” T he ACLU filed its alleges that the Division had “not produced the requested information” and, relate to any adverse employment action.” (Quotation omitted.) The complaint files, personnel, and disciplinary records concerning [the former trooper] that request to the Division in August p. 2 2021, seeking “[a] ll reports, investigatory According to the complaint, the ACLU submitted a Right - to - Know Law

the Division paid $ p. 2 212,500 to settle on the trooper’s behalf. that the trooper’s conduct had given rise to a federal civil rights lawsuit that n.1 (2022) (describing the exculpatory evidence schedule). It further allege s schedule in September 2021. See Doe v. Attorney General, 175 N.H. 349, 351 been terminated in August 2021 and placed on the exculpatory evidence concerning a former state trooper. T he complaint allege s that the trooper had to - Know Law complaint against the Division seeking access to records contents of documents in the record. In January 2022, the ACLU filed a Right - The following facts were recited in the trial court’s order or relate the

the Right - to - Know Law. See RSA ch. 91 - A ( p. 2 2023). We affirm. Liberties Union of New Hampshire (ACLU), for access to public records under the relief sought in a complaint filed by the plaintiff, the American Civil (the Division), appeals an order of the Superior Court (Kissinger, J.) granting HICKS, J. The defendant, the New Hampshire Division of State Police

amici curiae. Union Leader Corporation and New England First Amendment Coalit ion, as Massachusetts (Kathleen C. Sullivan and Gregory V. Sullivan on the brief), for Malloy & Sullivan, Lawyers Professional Corporation, of Hingham, p. 3 3

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 dut y 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

RSA 105:1 p. 3 3 - b, entitled “Confidentiality of Personnel Files,” provides:

exempt from RSA chapter 91 - A.” For the reasons that follo w, we disagree. to RSA 91 - A:4, I.” It contends that such records are therefore “categorically statute that ‘otherwise prohibit[s]’ disclosure of government records pursuant RSA 91 - A:4, I (emphasis added). The D ivision asserts that “RSA 105:1 p. 3 3 - b is a

RSA 91 - A:5. minutes so inspected, except as otherwise prohibited by statute or and to copy and make memoranda or abstracts of the records or or agencies, including minutes of meetings of the public bodies, records in the possession, custody, or control of such pub lic bodies public bodies or agencies, has the right to inspect all governmental bodies or agencies, and on the regular business premises of such E very citizen during the regular or business hours of all public

provides, in relevant part: The Rig ht - to - Know Law provision at issue is RSA 91 - A:4, I, which

plain meaning of the words used.” Id. language at issue here is un ambiguous, we reach our interpretation using “the language is ambiguous.” Reid, 169 N.H. at 522. Because the statut ory objectives. Finally, w e “will consider legislative history only if the statutory information in o rder to best effectuate the law’ s statutory and constitutional regarding the Right - to - Know Law with a view to providing the utmost overall statutory scheme an d not in isolation.” Id. “We resolve questions not see fit to include.” Id. “We also interpret a statute in the context of the what the legislature might have said or add language that the legislature did “We interpret legislative intent from the statute as written and will not consider a statute, we ascribe the plain and ordinary meaning to the words used.” Id. Right - to - Know Law.” Id. (quotation omitted). “When examining the language of (2016). “The ordinary rules of statutory construction apply to our review of the to - Know Law.” Grafton C ou nty Attorney’ s Off ice v. Canner, 169 N.H. p. 3 319, 32 2 interpret several statutory provisions, including certain provisions of the Right pursuant to RSA 91 - A: p. 4 4, I. Accordingly, “[r] esolution of this case requires us to 105:13 - b does not exempt the police personnel files at issue from disclosure On appeal, the Division challenges only the trial court’s ruling that RSA 4

(2022). In no respect does this case overrule or diminish its holding. The dissent misreads our decision in Petition of State of N.H. (State v. Fuchs), 17 p. 4 4 N.H. 785 1

the public. matter. For all other reasons, the police personnel files remain closed to constitutional right to exculpatory or relevant evidence in a criminal delivering to criminal defendants the most robust realization of their confidential personnel information solely fo r the critical purpose of Constitutions. RSA 105:13 - b mandates the transfer of certain, otherwise maximum extent permitted by the United States and New Hampshire [T]he statute prohibits public disclosure of police personnel files to the

Relying on Petition of State (Fuchs), t he Division argues:

17 p. 4 4 N.H. at 793. confidentiality of those files for all other purposes.” Petition of State (Fuchs), files of any police officer testifying in the criminal case while maintaining the crimina l defendant any exculpatory or relevant evidence found in the personnel “read as a whole, the statute details the procedure for turning over to a 174 N.H. 785, 791 (2022). In Petition of State (Fuchs), we concluded that 1 Laurie, 139 N.H. 325, 330 (1995). See Petition of State of N.H. (State v. Fuchs), of disclosure under Brady v. Maryland, 373 U.S. 83, 87 (1963), and State v. We have recognized that RSA 105:13 - b is linked to the prosecutor’ s duty

RSA 105:13 - b.

returned to the police department employing the officer. remainder of the f ile shall be treated as 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 rele vant to the criminal case. 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 that probable that probable cause exists to believe that the file contains evidence that criminal case, unles s 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

exculpatory, an in camera r eview by the court shall be required. II. If a determination cannot be made as to whether evidence is p. 5 5

Hampshire Center for Public Interest Journalism v. New Hampshire Similarly, no precedent on the issue before us can be found in New

claimed the case required). at common law: materiality” and was silent as to the element defendant the case “focused on and reached a conclusion as to only one element of fraud wire fraud statutes, means fraud as it was understood at common law,” when United States Supreme Court case “held that ‘ defraud, ’ as used in the mail and Segal, 644 F.3d 364, 367 (7th Cir. 2011) (rejecting defendant ’s argument that a decline to read into [Provenza] conclusions it did not reach.” United States v. not apply to the requ ested report on the facts found by the trial court. Id. “We reach that issue when, as we held, RSA 10 p. 5 5:13 - b, “by its express terms,” did from the Right - to - Know Law by virtue of RSA 105:13 - b. We had no need to contained in Provenza’s personnel file, it would have been categorically exempt Our holding in Provenza d oes not imply that if the Report had been

part of [Provenza’ s] personnel file.” Id. (quotations omitted). “there is nothing in the record to suggest that the Report is contain ed in or is a plaintiff had not successfully challenged on appeal the trial court’ s finding that to information maintained in a police officer’ s personnel file” and that the that argument, noting that “by its express terms, RSA 10 p. 5 5:13 - b pertains only the Right - to - Know Law that applies to the R eport.” Id. at 128. We rejected plaintiff argued, in relevant part, “that RSA 105:13 - b creates an exception to still employed by the Town as a police officer.” Provenza, 175 N.H. at 123. The by the Town as a result of a motor vehicle stop in which he was involved while release under the Right - to - Know Law of “an investigative report commissioned The Division misreads Provenza. In Provenza, the plaintiff sought to bar solely criminal matters and is not applicable in the Right - to - Know context.” N.H. 121 (2022), we rejected the assertion that “RSA 105:13 - b is limited to The Division a r gues, howev er, that in Provenza v. Town of Canaan, 175

Attorney’ s Off ice, 1 p. 6 69 N.H. at 322. add language that the legislature did not see fit to include.” Grafton C ou nty construction that we “will not consider what the legislature might have said or 10 p. 5 5:13 - b ’s application to “public disclosure” violates our canon of statutory . . . prosecutor.” RSA 105:13 - b, I, III. The Division’s attempt to broaden RSA officer whose personnel file is at issue “is serving as a witness” or “serving as a statute further limits its applicability to a criminal trial in which the police context in which RSA 105:13 - b operates: a specific criminal trial. Indeed, the added) (quotation and brackets omitted). Thus, we recognized the limited and is for the explicit purpose of being used as evidence.” Id. at 792 (emphases disclosure under paragraph III is similarly “tied to a particular criminal case to a particular criminal defendant in a particular criminal case” and that emphasized that “[t] he disclosure required under paragraph I is explicitly tied to “public disclosure” that simply is not there. In Petition of State (Fuchs), we The Division’s argument, however, reads into RSA 105:13 - b a reference 6

was on whether a defendant who had received information under RSA 105:13 - b Id. at 794 (emphasis added) (quotatio n and brackets omitted). Again, our focus

released. carefully crafted statutory process by which such information is defendant in that particular case would completely destroy the interpret the statute to allow disclosure or use beyond the case, and then is to be disclosed specifically to the defendant, to determined to be exculpatory or relevant in a particular criminal [B] ecause material disclosed under RSA 105:13 - b must first be

reasoned: Id. In interpreting RSA 105:13 - b to preclude further dissemination, we therein with an yone other than Defense Counsel’ s staff and the Defendant. ’” these confidential documents and the confidential information contained would prohibit ‘ Defense Counsel ... from sharing or further disseminating State had filed motions in the underlying cases seeking protective order s “that State was entitled to the issuance of protective orders. See id. at 788. The entitled to thereafter disseminate that information to others, or whether the whether defendant s who ha d received information under RSA 105:13 - b were N.H. at 792 (emphasis added). At issue in Petition of State (Fuchs) was dissemination is either required or permitted.” Petition of State (Fuchs), 174 of State (Fuchs) means what it says and no thing more: “N o further an opinion of this court — that is not there. The quoted language from Petition Again, the Division read s meaning into operative language — here, from

outside the [enumerated] narrow exceptions.” establishes a scheme in which police personnel records may not be disc losed N.H. at 792, and asserts that our “case law recognizes that RSA 105:13 - b dissemination is either required or permitted,” Petition of State (Fuchs), 174 points to our statement in Petition of State (Fuchs) that “[n] o further personnel files by limiting inspection to certain, enumerated circumstances.” It 105:13 - b] functionally prohibits the public from inspecting the records in police The Division further contends that “[t]he process outlined in [RSA

354. personnel file outside the scope of a particular criminal case.” Doe, 1 p. 7 75 N.H. at does not authorize the trial court to review the contents of an officer ’ s limited context of a spe cific criminal trial, concluding that “RSA 105:13 - b, II Journalism and Provenza, we reaffirmed that RSA 105:13 - b operates within the Attorney General, decided after New Hampshire C ente r for Pub lic Int erest Ctr. for Pub. Int erest Journalism, 173 N.H. at p. 6 656. Moreover, in Doe v. context of a specific criminal case in which a police officer is testifying.” N. H. an exception to the Right - to - Know Law and that it applies outside of the of th [at] appeal, we assume [d] without deciding that RSA 105:13 - b constitutes Department of Justice, 173 N.H. 648, 656 (2020), in which, “[f] or the purposes 7

hold the records as a result of obtaining them under the statute. Thus, while framework, the Division ca nnot avail itself of this prohibition, as it does not to prohibit further dissemination of informati on obtained under its procedural disclosure under RSA 91 - A:4, I. And while we have interpreted RSA 105:13 - b regulate the information. Thus, it cannot provide a categorical exemption from instances, of information fo und in police personnel files and it does not further contrary to law. RSA 105:13 - b similarly does not prohibit disclosure, in all secrets,” i d. at 58 p. 7 7 (quoting RSA 350 - B:2, I), such that disclosure would be prov ides remedies for the ‘ [a]ctual or threatened misappropriation ’ of trade not prohibit the disclosure of trade secrets under all circumstances; rather, it “otherwise prohibited by statute.” We specifically noted that “[t] he UTSA does Department from releasing the information and thus the disclosure was Health is unavailing, however, because there, the UTSA prohibited the inspection provided in RSA 91 - A: 4, I.” The D ivision’s reliance on Caremark PCS process manifestly different from and in conflict with the right of general public personnel files except in limited, enumerated circumstances, pursuant to a the release of trade secre ts, here, RSA 105:13 - b prevents disclosure of police The Division argues that “[l]ike in Caremark where the UTSA prevented

exempt from disclosure under RSA 91 - A:4, I.” Id. at 590. RSA 91 - A:4, I, and, therefore, we [held] that the designated information [was] the UTSA,. . . disclosure of that information is ‘ prohibit ed by statute ’ under Department would be a misappropriation of Caremark’ s trade secrets under we concluded that “because disclosure of the designated information by the consent to disclosure of the des ignated information.” Id. at 589. Accordingly, disclose trade secrets,” and that “Caremark did not expressly or impliedly Services (Department) imposed on both parties “a duty of confidentiality not to between Caremark and the New Hampshire Department of Administrative the designated information as confidential and proprietary,” that the contract 350 - B:1, II (b),: 2, I). We further noted that Caremark had “specifically marked CaremarkPCS Health, 16 p. 7 7 N.H. at 587, 588 (emphasis omitted) (quoting RSA circumstances giving rise to a duty to maintain its secrecy or limit its use.’” reason to know that his knowledge of the trade secret was . . . acquired under consent by a person who. . . [a]t the time of disclosure or use, knew or had “‘[d] isclosure or use of a trade secret of another without express or implied ‘[a] ctual or threatened misappropriation ’ of trade secrets,” which includes (2022) (UTSA). Specifically, we noted that the U TSA “provides remedies for the RSA 91 - A:4, I. CaremarkPCS Health, 167 N.H. at 590; see RSA ch. 350 - B Trade Secrets Act (UTSA) provided an exemption from disclosure pursuant to which we held that, under the facts of the case, the New Hampshire Uniform H ampshire Dep artment of Admin istrative Serv ice s, 167 N.H. 583 (2015), in The Division next analogizes this case to CaremarkPCS H ealth v. N ew

independently may be subject to disclosure under a different statute. State (Fuchs) says nothing about whether information in a police personnel file could thereafter share that information with others. Our decision in Petition of p. 8 8

determining the privacy interests, the court considers the articulated “public disclosure of a personnel file would constitute an invasion of privacy). First, in IV. Se e Reid, 169 N.H. at 52 7 - 29 (discussing analysis for determining whether whether disclosure would constitute an invasion of privacy under RSA 91 - A:5, established three - step analysis, as the trial court did here, to determine after making the requisite preliminary findings, a court would apply the disclosure would constitute invasion of privacy.” RSA 91 - A:5, IV. In that case, likely be met with a claim of exemption for “personnel ... files whose equivalent. A person seeking disclosure under the Right - to - Know Law would under each framework and the material disclosed under each may not be Determining whether information will be disclosed will entail a different inquiry for seeking information in a police personnel file for different purposes. We see no absurdity in the coexistence of different statutory frameworks

people.” RSA 91 - A:1. discussions and records of all public bodies, and their accountabi lity to the “is to ensure both the greatest possible public access to the actions, in RSA 105:13 - b”). The purpose of the Right - to - Know Law, on the other hand, personnel file that may be obtained through the statutory procedure set forth and Federal Constitutions, and other information contained in a confidential exculpatory evidence that must be disclosed to the defendant under the State 31 p. 8 8, 321 (2006) (decided under prior statute) (noting distinction “between See RSA 105:13 - b; Petition of State of N.H. (State v. Theodosopoulos), 153 N.H. obtaining non - exculpatory evidence relevant to the defendant’s criminal case. ri ghts to disclosure of exculpatory evidence and also provides a procedure for 105:13 - b effectuates a criminal defendant’s State and Federal Constitutional The Right - to - Know Law and RSA 105:13 - b serve different purposes. RSA

We disagree.

plain statutory language of RSA 105:13 - b. public seeki ng the same documents under RSA 91 - A, defies the file within the context of his criminal case than as a member of the criminal defendant may have less right to access a police personnel public records request. The absurdity of this result, in which a afforded by statute and gain access to the records via a simple Parties in a criminal case could entirely circumvent the protections

records request would produce an absurd result.” It argues: obtained under RSA 105:13 - b, “disclosing such records pursuant to a public statutory framework under which police personn el file information may be Finally, the Division contends that in light of the carefully - drafted

RSA 105:13 - b and the Division in this case. prohibit its disclosure by the Department, the same is not true with respect to the UTSA applied to the designated information in Caremark PCS Health to p. 9 9

in criminal trial). (Fuchs), 174 N.H. at 78 8 (further disclosure of exculpatory evidence produced (2020) (arbitration decision of police officer’s grievance); c f. Petition of State department); Seacoast Newspapers v. City of Portsmouth, 173 N.H. 325, 32 p. 9 9 longer with department); Union Leader Corp., 173 N.H. at 34 8 (audit of police ex empt. See Provenza, 175 N.H. at 122 - 23 (investigative report on officer no records pertaining to law enforcement officers that it intends to be categorically action with respect to the former officer, it may wish to clarify those aspects of this case, our treatment of documents relating to any adverse employment v arious applications of the exemptions set forth in RSA 91 - A:5, IV, including, in Should the legislature disagree with th is court’s interpretations of

us, a reflection of the different purposes served by each statutory scheme. member of the public seeking the sam e documents under RSA p. 9 91 - A” — is, to access a police personnel file within the context of his criminal case than as a or, as the Division frames it, that “a criminal defendant may have less right to framework may trigger disclos ur e of certain material that the other does not — RSA 105:13 - b — is tailored to the purposes of the respective law. That one material exculpatory and/or relevant to the defendant’s criminal case under outweighs the relevant privacy interests u nder the Right - to - Know Law and disclosed under each framework — material in which the public interest relevant to his criminal case. See RSA 105:13 - b. The material that would be requisite probable cause showing, w ould obtain non - exculpatory evidence the other hand, w ould obtain exculpatory evidence, and, upon making the A defendant in a criminal case seeking material under RSA 105:13 - b, on

disclosure”). “the public’ s inte rest in disclosure outweighs the [defendant’s] interest in non court erred in ruling that materials were exempt under RSA p. 9 91 - A:5, IV where Legislative Budget Assistant, 148 N.H. 551, 556, 558 (2002) (concluding trial nondisclosure.” Union Leader Corp., 173 N.H. at 355; see Goode v. N. H. government’ s interest in n ondisclosure and the individual’ s privacy interest in step of the analysis, “the public interest in disclosure” outweighs “the to - Know Law. Id. at 532. The material would be disclosed if, under the third evaluates the strength of the public interest as tied to th e purpose of the Right reputational harm. Id. at 529 - 31 (emphasis omitted). Second, the court identifying information or subject an individual to embarrassment or interest in nondisclo sure,” and whether disclosure would release personally p. 10 10

Division objects. interpretation of the applicable statutes and we have not considered the materials to which the not in the record before the trial court, we reiterate that our decision is based solely on To the extent the Division contends that the ACLU and amici have submitted materials that were 2

to RSA 91 - A:4, I.” It contends that such records are therefore “categorically statute that ‘otherwise prohibit[s]’ disclosure of government records pursuant RSA 91 - A:4, I (emphasis added). The Division asserts that “RSA p. 10 105:13 - b is a

RSA 91 - A:5. minutes so inspected, except as otherwise prohibited by statute or and to copy and make memoranda or abstract s of the records or or agencies, including minutes of meetings of the public bodies, records in the possession, custody, or control of such public bodies public bodies or agencies, has the right to inspect all governmental bodies or agencies, and on the regular business premis es of such Every citizen during the regular or business hours of all public

provides, in relevant part: The Right - to - Know Law provision at issue is RSA 91 - A:4, I, which

Canner, 169 N.H. 319, 322 (2016). provisions of the Right – to – Know Law.” Grafton County Attorney’ s Offi ce v. this case requires us to interpret several statutory provisions, including certain issue from disclosure pursuant to RSA 91 - A:4, I. Accordingly, “[r]esolution of court’s ruling that RSA p. 10 105:13 - b does not exempt the po lice personnel files at this case under RSA 91 - A:4, I.” On appeal, the Division challenges the trial 105:13 - b does not categorically prohibit disclosure of the records at issue in The trial court granted ACLU ’s request for disclosure, ruling that “RSA

(2023). The majority affirms. I respectfully dissent. Right - to - Know Law that concern a former state trooper. See RSA ch. 91 - A Civil Liberties Union of New Hampshire (ACLU), for access to records under the granting the relief sought in a complaint filed by the plaintiff, the American State Police (the Division), appeals an order of the Superior Court (Kissinger, J.) BASSETT, J., dissenting. The defendant, the New Hampshire Division of

BASSETT, J.