2024 N.H. 11, Stone v. City of Claremont

p. 3 3

to his governmental records request. Later that month, the City M anager sent the letter to the journalist responding

a brief period of time to decide whether to seek an injunction. prior to disclosing it to the requesting party, in order to give the [plaintiff] exemption and should be released, it may notify counsel for the [plaintiff] if the City determines a record does not fall within a recognized

that: journalist’s request pursuant to RSA 91 - A:4, IV (a) - (c) (202 p. 3 3) and explained complaint without prejudice. The court ordered the City to act upon the [¶7] In August, the Superior Court (Tucker, J.) d ismissed the City’s

subject to public disclosure. The City sought the court ’s guidance as to which governmental records are object to the disclos ure of these documents based upon his privacy interest. a substantial public interest, and it acknowledged that the plaintiff would likely disclosure implicated both the plaintiff’s significant privacy interest, as well as RSA 91 - A:5, IV. The City averred that under this standard, the requested pursuant to the balancing test set forth in Town of Salem, 17 p. 3 3 N.H. 345. See request, it analyze d the potential public disclosure of the requested documents respondents. In its complaint, the City explained that following the journalist’s Declaratory Judgment and name d the plaintiff and the journalist as co - [¶6] The following month, the City filed a Complaint in Equity for

plaintiff. copies of any statements that the CPD received from the PSTC regarding the statement s sent to the PSTC regarding the plaintiff ’s “moral turpitude”; and (4) administration regarding his termination; ( p. 3 3) copies of any documents or written communications to the plaintiff from the Claremont Police reports into the conduct of the plaintiff as a CPD officer; (2) copies of any RSA ch. 91 - A. The journalist requested: (1) copies of any internal investigative records related to the plaintiff under New Hampshire’s Right - to - Know L aw. See [¶5] In June 2020, a journalist sought the disclosure of governmental

the plaintiff’s negotiated resignation from the CPD. court of competent jurisdiction, or by law.” The Stipulated Award resulted in confidential . . . except to the extent required by an order of some other agency, parties agreed “to keep the existence, terms, and substance of this Award no comment. The Award also contained a confidentiality provisi on in which the newspaper or any other media outlet and, if contacted by the media, to make them.” The parties agreed not to report the disposition of the matter to the 2006, the March 27, 2006 notice of ter mination, and all events leading up to plaintiff’s] personnel file of all reference to the one - day suspension of March 8, IA Reports. As part of the Stipulated Award, the City agreed to “purge [the p. 4 4

withheld. maintained that all of the documents that the City produced should be correspondence that the plaintiff agreed could be disclosed, the plaintiff release of IA Reports Nos. 13 and 1 p. 4 4. Other than the fourth set of PSTC request for IA Reports Nos. 11 and 12, but they continued to argue for the through 14. In response, t he intervenors withdrew without prejudice their accepted. The City, h owever, argued against disclosing IA Reports Nos. 11 correspondence be released with little or no redactions, which the intervenors IA Reports Nos. 1 through 10 and 10A and the four sets of PSTC between the PSTC and the Chief of Police for the CPD. The City proposed that and redacted versions of fifteen IA Reports and four sets of c orrespondence the applicability of RSA 91 - A:5, IV. Specifically, the City produced both clean intervenors and the court could better understand the records in dispute and court (under seal) and the parties (under protective order) so that the [¶10] In June 2022, the City produced responsive records to the superior

protective order. request as well as unredacted versions of sealed pleadings, subject to a intervenors access t o the records responsive to the pending Right - to - Know from disclosure pursuant to RSA 91 - A:5, IV. The court also granted the 91 - A, but it left open the question of whether any of the records were exempt Stipulated Award would run counter to public policy reflected in RSA chapter concluded that enforcement of the confidentiality provision in the 2007 denying the plaintiff’s request for a preliminary injunction. The court [¶9] T he Superior Court (Tucker, J.) issued an order in December 2021

s uperior c ourt subsequently granted the motion to inter vene. invasion of privacy under RSA 91 - A: p. 5 5, IV); see also RSA 91 - A:5, IV. The test used to determine whether disclosure of public records constitutes an N.H. v. Local Gov’t Ctr., 159 N.H. 699, 707 (2010) (explaining the balancing “has no impact on the Right - to - Know Law analysis.” See Prof ’ l Firefighters of outweighs any privacy interest in nondisclosure, and the Stipulated Award requested records should be discl osed becaus e the public interest in disclosure the plaintiff’s case and moved to intervene. The intervenors argued that the Following these requests, the intervenors filed a Joint Statement of Interest in seeking disclos ure of certain governmental records relating to the plaintiff. October, the intervenors sent separate Right - to - Know requests to the CPD public disclosure of the records would cause him to suffer irreparable harm. In Councilor and his candidacy for a seat in the New Hampshire Legislature, Stipulated A ward. He argued that, due to his current role as a C laremont City records, arguing that an injunction was necessary given the terms of the enter an injunction prevent ing the City from disclosing any of the requested petition ing for injunctive relief. Specif ically, the plaintiff asked the court to [¶8] In September, the plaintiff commenced the instant case by 5

Stipulated A ward is unclear, but the intervenors suggest that it is. 10A, 13, and 14, but not IA Reports Nos. 1 - 7. Whether IA Report No. 9 is covered by the The plaintiff and the intervenors agree that the Stipulated Award covers IA Reports Nos. 8, 10, 2 consider the disclosure of these records in this opinion. the intervenors withdrew without prejudice their request for IA Reports Nos. 11 and 12, we do not Because the plaintiff has agreed to the disclosure of the fourth set of PSTC correspondence and 1

Monadnock Dist. Educ. Ass ’ n, 173 N.H. 411, 420 (2020). meaning of the language used in the agreeme nt. Monadnock Reg ’ l Sch. Dist. v. 70. Absent ambiguity, the parties’ intent will be determined from the plain circumstances and the context in which the agreement was negotiated. Id. at the language u sed by the parties its reasonable meaning, considering the interpreting a written agreement, we read the document as a whole and give Town of Pembroke v. Town of Allenstown, 171 N.H. 6 p. 5 5, 69 (2018). When decide, we review the trial court’s interpretation of that agreement de novo. Because the interpretation of a contract is ultimately a question of law for us to Stipulated Award protect s any of the requested records from disclosure. 2 that it covers. According ly, w e begin by considering whether the 2007 Stipulated Award and contends tha t it prohibits the disclosure of any records PSTC correspondence. The plaintiff argues for the enforcement of the 1 s pecifically, IA Reports Nos. 1 through 10, 10A, 13 and 14, and three sets of regarding the plaintiff during his time as a police officer in the CPD — [¶12] At issue on appeal is the disclosure of governmental records

and 14. This appeal followed. parties’ remaining disagreements regarding redactions to IA Reports Nos. 13 2023 order, the court reaffirmed its October 2022 order and resolved the faith to see if they can reach an agreement on the redactions.” In a January plaintiff with IA Reports Nos. 13 and 14 and the parties to “negotiate in good redactions. The court also ordered the City to provide the intervenors and the as well as all four sets of the PSTC correspondence with the agr eed - upon the City to provide the intervenors with IA Reports Nos. 1 through 10 and 10A, “public’s interest in disclosure, however, weighs heavily.” The court ordered concluded that “the Plaintiff’s privacy inter est is not weighty,” and that the the records were nevertheless exempt from disclosure by RSA 91 - A: p. 5 5, IV and policy reflected by RSA chapter 91 - A. The trial court then considered whether Stipu lated Award a re unenforceable because they are contrary to the public that the confidentiality provision, as well as the purging provision, of the Reports and the four sets of PSTC correspondence. The trial court determined plaintiff’s motion for an injunction and ordered the disclosure of the thirteen IA [¶11] In October 2022, the Superior Court (Honigberg, J.) denied the p. 6 6

91 - A:4, I. dispute, that all of the required records are subject to disclosure under RSA required by law. Here, the trial court concluded, and the plaintiff does not from disclosin g the relevant records in question if such disclosure is otherwise the confidentiality provision of the Stipulated Award does not prevent the City records if such disclosure is required by law. Accordingly, we conclude that that the confidentiality provision would not prevent disclosure of the relevant demonstrates the parties ’ recognition that the law could change over time and the Stipulated Award does not mandate wholesale confidentialit y. Rather, it agency, court of competent jurisdiction, or by law.” (Emphases added.) Thus, Award confidential . . . except to the extent required by an order of some other agents/representatives” shall keep the “existence, terms, and substance of this Indeed, the provision expressly provides that the “parties and their substance of this Award confidential,” any such confidentiality is qualified. and their agents/representatives agree to keep the existence, terms, and [¶15] Although the confidentiality provision provides that the “parties

intervenors. which includes the requirements of RSA c h. 91 - A.” We agree with the confidentiality provision applies ‘except to the extent required by . . . law,’ [the plaintiff] asserts.” Rather, the Stipulated Award “makes clear that its the confidentiality pro vision “does not provide the blanket confidentiality that will be purged from all other locations. Similarly, the intervenors argue that be purged from the plaintiff’s personnel file but does not state that the records interven ors, the Stipulated Award provides only that the relevant records will destroyed or that they will cease to exist within the CPD. According to the of the Stipulated Award does not state that the relevant records will be union and [the plaintiff].” The intervenors contend that the purging provision purge one file to put the material in another file, they should have informed the maintained only within his personnel file, and that “[i]f the City was going to plaintiff explains that he believed that the relevant documents could be that the Stipulated Award covers. Regarding the purging provision, the provisions of the Stipulated Award prohibit the d isclosure of any of the records [¶14] The plaintiff argues that the confidentiality and the purging

27, 200 p. 6 6 notice of termination, and all events leading up to them[.] of all reference to the one - day suspension of March 8, 2006, the March 5. Personnel File. The City shall purge [the plaintiff’s] personnel file

jurisdiction, or by law. the extent required by an order of some other agency, cou rt of competent other than to say, if asked, that the matter has been resolved, except to to keep the existence, terms, and substance of this Award confidential 4. Confidential. Both parties and their agents/representatives agree

[¶13] The Stipulated Award provides, in relevant part: p. 7 7

consider this issue on appeal. nor fully briefed it, and that he waived all RSA chapter 91 - A claims at oral argument, we decline to and because we have concluded that the plaintiff neither raised this issue in his notice of appeal raised the question in his notice of appeal and briefed the issue in his opening brief. We disagree, disclosed under RSA chapter 91 - A “is properly preserved for appellate review” because the plaintiff chapter 91 - A. The City ar gues that the question of whether IA Reports Nos. 13 and 14 should be that the trial court erred in ordering the disclosure of IA Reports Nos. 13 and 14 under RSA Although the City, for the most part, agrees with the intervenors and the trial court, it argues 3

Accordingly, we decline to consider the merits of these arguments. be disclosed pursuant to the Stipulated Award or RSA chapter 91 - A. fail to see how such a conclusion impacts whether the requested record s can incorrectly indicated the number of sustained reports that the City located, we aforementioned provision of the Stipulated Award and that the City M anager the City located. Even if the plaintiff is correct tha t this letter violated the the City M anager incorrectly indicated the number of sustained reports that parties will make no comment.” T he plaintiff also contends that in this letter, the newspaper or any othe r media outlet. If contacted by the media, the “[t]he parties agree that the disposition of this matter shall not be reported to argues that this letter violated the provision of the Stipulated Award that states regarding the Ci ty M anager’s August 2020 letter to the journalist. T he plaintiff [¶18] Last ly, we address the plaintiff’s remaining two arguments

RSA chapter 91 - A. intervenors’ argument that the plaintiff lacks standing to bring a claim under plaintiff waived all RSA chapter 91 - A claims, we need not consider the requested records under RSA chapter 91 - A. Given our conclusion tha t the 3 do not disturb the trial court’s decision regarding the disclosure of the waived at oral argument need not be considered by this court). Accordingly, we at oral argument. See State v. Bonalumi, 12 p. 7 7 N.H. 485, 489 (1985) (an issue appeal”). Moreover, the plaintiff expressly waived any RSA chapter 91 - A claims review any issue that is not “fully briefed” or “is not raised in a party’s notice of RSA 91 - A:5, IV. See State v. B lackmer, 149 N.H. 47, 49 (2003) (declining to nor did he fully brief, whether the records are exempt from disclosure under requested records. Indeed, the plaintiff did not raise in his notice of appeal, whether the terms of the 2007 Stipulated Award prohibit the release of the [¶17] On appeal, the plaintiff’s arguments are entirely premised upon

plaintiff’s personnel file but did not destroy them. violate the Stipulated Award when it purged the records in question from the and the events leading up to them. (Emphasis add ed.) Thus, the City did not “purge [the plaintiff’s] personnel file of all reference” to two specific incidents destruction of the records in question but, rather, only requires the City to [¶16] Similarly, the purging provision does not mandate wholesale p. 8 8

step, under the facts of this case, to preclude the use of confidential [¶ 21] I am concerned that the majority’s opinion takes an incremental

unsettled by our decision overturning 26 years of precedent. confidentiality provisions in a bargained - for settlement agreement that became disclosed in a criminal case). In this case, we are asked to address Fuchs), 174 N.H. 7 p. 8 85, 788 - 95 (2022) (maintaining confidentiality of records N.H., 176 N.H. at ___, (slip op. at 3 - 9); see also Petition of State of N.H. (State v. police personnel files by a criminal defendant. See Am. Civil Liberties Union of juxtaposition of the Right - to - Know Law with the statute governing access to Portsmouth, 173 N.H. 325, 329 (2020). We have also considered the the termination of a police officer, Seacoast Newspapers, Inc. v. City of v. Town of Salem, 173 N.H. at 3 48; and (iv) an arbitration decision concerning 12 2 - 2 3 (2022); (iii) an audit report of a police department, Union Leader Corp. with the employing department, Provenza v. Town of Canaan, 175 N.H. 121, investigative report o f a motor vehicle stop conducted by an officer no longer action against a former state trooper, id. at ___ (slip op. at 2); (ii) a n 9). Records impacted includ e: (i) records relating to an adverse employment v. N.H. Div. of State Police, 176 N.H. ___, ___ (decided Nov. 29, 2023) (slip op. at law enforcement record s in various ways. See Am. Civil Lib erties Union of N.H. exemptions set forth in RSA 91 - A:5, IV (2023) has impacted the treatment of Hampshire v. New Hampshire Division of State Police, our interpretation of the Marconi, J., dissenting). As we noted in American Civil Liberties Union of New in Union Leader Corp. v. Town of Salem, 173 N.H. 345, 358 - 62 (2020) (Hantz Leader Corp. v. Fenniman, 136 N.H. 624 (1993), as I expressed in my dissent [¶20] I continue to be concerned with the effect of our overruling Union

HANTZ MARCONI, J., concurring in the result.

concurred in the result. M AC DON ALD, C.J., and BASSETT J., concurred; HANTZ MARCONI, J.,

14 from disclosure under RSA 91 - A:5, IV is moot. memorandum of law that argue in favor of exempting IA Reports Nos. 13 and the intervenors’ outstanding m otion to strike the portions of the City’s the requested records are exempt from disclosure pursu ant to RSA 91 - A:5, IV, disclosed, subject to certain redactions. Given that we do not consider whether disturb the trial court’s order that all documents at issue in this case shall be exempt from disclosure pursuant to RSA 91 - A:5, IV, and, therefore, we do not conclude that the plaintiff waived any argument that the requested records are protect the requested records at issue on appeal from disclosure. We also [¶19] In summary, we conclude that the 2007 Stipulated Award does not

investigations). retention schedule for municipal records, including personnel files and internal affairs no less than 10 years from the date of settlement.”); RSA 33 - A:3 - a (Supp. 2023) (disposition and kept on file at the municipal clerk’s office and made availabl e for public inspection for a period of threatened lawsuit, or other claim, entered into by any political subdivision or its insurer, shall be See als o RSA p. 9 91 - A:4, VI (2023) (“Every agreement to settle a lawsuit against a governmental unit, 4

result reached by my colleagues. interests against the public’s right to know. For that reason, I concur in t he constitute a factor to be considered in the trial court’s balancing of his privacy applied retroactively or that his bargained - for confidentiality agreement should plaintiff did not argue that Union Leader Corp. v. Town of Salem should not be Town of Northumberland, 14 p. 9 9 N.H. 728, 730 (2003). In this case, however, the retroactively when doing so can cause harsh results. Lee James Enter s. v. 124 N.H. 666, 671 (1984). We al so decline to apply judicial decisions parties in place at the time the contract is made. R. Zoppo Co. v. City of Dover, interpret contracts with reference to the circumstances and intent of the reached years prior, under a prior interpretation of the then governing law. We the Right - to - Know Law, not an amendment thereto, could undo an agreement the extent required . . . by law” — provides fair notice that a reinterpretation of [¶ 22] I also do not think that the language in the agreement — “except to

records exempted pursuant to RSA p. 9 91 - A:5, IV. 4 Considering these developments, the legislature may want to examine the involve potentially exculpatory evidence. See RSA 105:13 - d, I (2023). particular, now also face the public disclosure of employment matters that the burden of the substantial cost of litigation.” Id. at 67773. Police officers, in workplace disputes at an early stage and with minimal costs” and “minimiz[e] Office of Personnel Management has noted that such agreements can “resolve Actions, 87 Fed. Reg. 67765, 67772 - 73 (Nov. 10, 2022). The United State s Performance - Based Reduction In Grade and Removal Actions and Adverse employee.” Probation on Initial Appointment to a Competitive Position, “in a manner that balances t he needs of the agency and fairness to the that agencies should have them as an option to resolve employment disputes example, in 2022 reversed a 2020 ban on “clean - record agreements,” reasoning c onsiderations beyond the outcome of this case. The federal government, for public employees, and in particular, law enforcement officers, raise policy device. Restrictions on confidential settlement agreements with respect to other record retention policies, may reduce or eliminate the availability of this important purpose, and our developing RSA 91 - A juris prudence, along with settlements by governmental entities. Such agreements can serve an