Petition of State of New Hampshire

II. Whether the superior court erred when it concluded that police personnel records are presumptively public records under RSA 91-A:4.

III. Whether the superior court unsustainably exercised its discretion when it sua sponte transformed routine, non-adversarial, assented-to criminal discovery motions into RSA 91-A proceedings and delayed three criminal cases. RSA 105:13-b, RSA 91-A:4, and precedent from this Court, provided a clear basis to grant the parties’ assented-to motions.

The State preserved these issues in the assented-to motions for a protective order and the motions for reconsideration submitted in each of the three cases. SD 151-52, 54-59, 61-62, 64-65, 67-72, 75-76, 78-84.

Statutes: RSA 105:13-b, Confidentiality of Personnel Files

II. If a determination cannot be made as to whether evidence is exculpatory, an in camera review by the court shall be required. III. No personnel file of a police officer who is serving as a witness or prosecutor in a criminal case shall be opened for the purposes of obtaining or reviewing non-exculpatory evidence in that criminal case, unless the sitting judge makes a specific ruling that probable cause exists to believe that the file contains evidence relevant to that criminal case. If the judge rules that probable cause exists, the judge shall order the police department employing the officer to deliver the file to the judge. The judge shall examine the file in camera and make a determination as to whether it contains evidence relevant to the criminal case. Only those portions of the file which the judge determines to be relevant in the case shall be released to be used as evidence in accordance with all applicable rules regarding evidence in criminal cases. The remainder of the file shall be treated as confidential and shall be returned to the police department employing the officer.

RSA 91-A:4, I: Minutes and Records Available for Public Inspection

original records by whatever method, including but not limited to photography, photostatic copy, printing, or electronic or tape recording.

RSA 91-A:5, IV: Exemptions

The following governmental records are exempted from the provisions of this chapter:

IV. Records pertaining to internal personnel practices; confidential, commercial, or financial information; test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations; and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy. Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a public body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected.

This is a Petition for Original Jurisdiction pursuant to Supreme Court Rule 11 from a ruling of the Merrimack County Superior Court (Schulman, J.). The appeal involves a series of orders issued in three criminal cases that involve the same legal issue and the same legal reasoning. In each case, the superior court denied an assented-to motion for a protective order for potentially exculpatory evidence from police officers’ personnel files that the State was disclosing as required by Brady/Laurie 2 and RSA 105:13-b, I. The court issued a common narrative order in all three cases denying nearly identical motions for reconsideration.3 The State will first summarize the relevant facts and issues in each case and then provide a brief overview of subsequent procedural developments.

defense counsel in order to meet its Brady/Laurie obligations. SD51-52. See Brady, 373 U.S. at 83, Laurie, 139 N.H. at 325; RSA 105:13-b, I; see also N.H. R. Crim. P. 50(c)(2)(A) (defining “Confidential information” to include “Information that is not public pursuant to state or federal statute, administrative or court rule..., or case law”). The State also filed a motion to seal on the basis that the protective order described the confidential and statutorily protected materials. See N.H. R. Crim. P. 50(d). SA5. On February 25, 2021, the court denied the motions without prejudice on the basis that “[p]olice personnel records and documents related to police internal personnel practices are presumptively public records under RSA 91-A:4, unless for particularized reasons, the public release of the records would result in an invasion of privacy. See Union Leader Corp. v. Town of Salem, 173 N.H. 345, 357 (2020).” SD52. The court invited the State or the witness to argue “that such particularized privacy concerns are present in this case” and stated that if “the court finds that the records are not public records, then the court will comsoder [sic] issuing a protective order of appropriate scope.” SD52. The court concluded that “if the records fall within the scope of 91-A:4, meaning that that [sic] any member of the public is entitled to the records upon demand, the court will NOT issue a protective order.” SD52.

On March 4, 2021, the State filed a motion for reconsideration arguing that the court had: (1) erred in analyzing the assented-to request for a protective order under 91-A instead of RSA 105:13-b; (2) misinterpreted RSA 105:13-b; (3) misapprehended RSA 105:13-b and RSA 91-A:5, IV when it ruled that “police personnel records... are presumptively public records under RSA 91-A:4”; (4) overlooked the unsettled but related question of law regarding whether the Exculpatory Evidence Schedule (“EES”) was subject to disclosure under RSA 91-A:5, IV. SD 54-57. The State also argued that (1) several Freedom of Information Act (“FOIA”) exemptions4 and (2) the law enforcement privilege supported keeping the disclosed documents confidential pre-trial to the broadest extent possible. On March 16, 2021, the court denied the motion by margin order stating a narrative order was forthcoming. SD54.

On March 18, 2021, the court issued its narrative order explaining that because “the court would not ordinarily issue a protective order that gags the parties and counsel from sharing what is otherwise available to the general public upon demand, ” a protective order “is inappropriate” if the State “provides discovery of documents that are subject to mandatory public disclosure under the Right to Know statute.” SD89. The court reasoned that after the 2020 overrule of Fenniman, 5 “the practice of willy- nilly issuing protective orders to gag the defense whenever the State provides exculpatory evidence of police misconduct is no longer tenable” and that “a knee-jerk protective order based on the provenance rather than the substance of the discovery is unwarranted and could amount to a prior restraint of lawful speech.” SD91. According to the court, nothing in RSA 105:13-b—a statute that requires the State to disclose to the defense exculpatory evidence in the personnel file of a police officer witness— “suggests that such exculpatory evidence, once disclosed, must be kept confidential.” SD91. The court asserted that the public has a strong interest

4 5 U.S.C. § 552, et seq.

5 Union Leader Corp. v Fenniman, 136 N.H. 624 (1993). in the disclosure of information related to police misconduct and in allowing members of the defense bar to share information that “casts doubt on the credibility of particular police witnesses.” SD93. The court invited the State “to make a fact-specific case that public disclosure of the information would result in an invasion of privacy” but concluded, “the court will not issue gag orders in blank.” SD93. The court’s narrative order also denied the motion to seal on the basis that “the filings at issue do not contain any factual information from a police personnel file.” SD95. The name and department of the police officer involved became a part of the public record when the court denied the motions to seal because the motions identified the officer. Therefore, on March 22, 2021, the State filed an emergency motion asking the court to reseal the proceedings, redact the officer’s name, and stay the proceedings for thirty days to allow the State to decide whether to pursue an appeal. SA6-8. On April 1, 2021, the court granted the motion in part, holding that the discovery at issue did not need to be provided pending appeal, and setting May 17, 2021 as a status conference. SA6. On April 9, 2021 the State filed a motion asking the court to accept redacted copies of the prior filings; the court granted the motion on April 19, 2021. SA9-10, 15.

The court held the status conference on May 17, 2021, and issued an order confirming that the case is stayed pending the State’s appeal. SA11.

25, 2021, the State filed two assented-to motions for protective orders to maintain the confidentiality of potentially exculpatory evidence from the personnel file of two named police officers that the State needed to disclose to defense counsel to meet its Brady/Laurie obligations. SD62-64, 65-68. See Brady, 373 U.S. at 87; Laurie, 139 N.H. at 327; RSA 105:13-b, I; N.H.

On February 25, 2021, the court issued two margin orders denying the motions. SD61, 64. The court explained: Police personnel files may be public records under RSA 91- A:4 and 5 unless there is a particularized concern of invasion of privacy. If the records could be accessed by any member of the public, the court will not issue a protective order. But, the State may renew the motion if it believes the records are not public records under RSA 91-A:4 and 5, as construed by the N.H. Supreme Court in the Town of Salem case last year.

SD61 (citing Town of Salem, 173 N.H. at 357); see also SD64. The State filed a motion for reconsideration on March 4, 2021 raising the identical arguments that it raised in Fuchs. SD67-72. On March 18, 2021, the court denied the motion by a margin order that referenced the same narrative order as issued in Fuchs. SD67, 86-96. On March 22, 2021, the State filed an emergency motion seeking a stay pending appeal, and asking the court to reseal pleadings identifying the officers at issue or redact the officer’s names. SA18-20. The court granted the emergency motion on April 1, 2021 and stayed the case. SA18. On April 9, 2021 the State filed a motion asking the court to accept redacted copies of the prior filings; the court granted the motion on May 12, 2021. SA21. On April 19, 2021, Jacob Johnson, through counsel, filed a motion stating that he wished to “clarify” his position on the protective orders and withdraw his earlier assent to the protective order because he “agrees with the [superior court’s] reasoning and analysis in its March 18th Order.” SA23-24. The State moved to strike the defendant’s pleading on the basis that the defendant had numerous opportunities to clarify his position while the case was before the court, did not do so in a timely manner, and is estopped from changing his position now when the case has been stayed. SA25-29. As of July 12, 2021, the court had not ruled on this issue. SA33- 34.

50(c)(2)(A). The State also filed a motion to seal on the basis that the protective order described the confidential and statutorily protected materials. SA35. See N.H. R. Crim. P. 50(d).

On March 9, 2021, defense counsel filed an unsealed motion in limine asking to be allowed to inquire whether the officer named in the State’s motion for a protective order “is on the Laurie list and how and why [he] got there.” SA36-44. The State filed a sealed response and asked the court to deny the defendant’s motion without prejudice pending his receipt of the potentially exculpatory evidence at issue. On March 16, 2021, the court issued a margin order indicating that it would hear defendant’s motion prior to jury selection. SA36. The court noted that the “mere status of being on the so-called Laurie list (which (a) is not required by Laurie and (b) is not a list) is not something that may be inquired into.” SA36. On March 16, 2021, the court denied the State’s motion for a protective order, the motion to seal that motion, and the motion to seal the State’s response to the motion in limine by margin orders that referenced the narrative order the court issued in Fuchs and Johnson. SD75, SA35, 36, SD86-96.

On March 22, 2021, the State filed an emergency motion seeking a stay pending appeal, and asking the court to reseal pleadings identifying the officers at issue or redact the officer’s names. SA45-47. The defense objected on the basis that jury selection was scheduled for April 20, 2021, that granting a stay was against the public interest, and that granting a stay would violate the defendant’s speedy trial right. SA48-53. On March 23, 2021, the court issued an order ruling that the State’s motion would be granted if the State appealed. SA45. On March 31, 2021, the court stayed the case pending this appeal. SA58.

The court also held that the State’s motions which named the officer could be sealed if the prosecutor filed versions that redacted the officer’s name. SA47. The prosecutor filed the redacted versions. SA57-58 The court denied the State’s request to seal or redact the defendant’s motion in limine, which also included an officer’s name. SA57. On March 29, 2021, the State filed a motion for reconsideration raising the identical arguments raised in the motions for reconsideration in Fuchs and Johnson. SD78-84. The court denied the motion that same day and stated: The court remains willing to make a fact-based determination of whether a sufficiently compelling privacy interest exists to warrant a protective order. But the court will not issue a protective order in blank, sight unseen, merely because the substance of the information has to do with alleged misconduct on the part of a police officer. A blanket, one-sized fits all approach is unwarranted, unsupported by statute, and likely unconstitutional for the reasons set forth in the court’s narrative order.

SD78.

In response, the defendants/respondents moved for summary dismissal, or in the alternative summary affirmance. SA115-144. The defendants argued that the State raised the appeal under the wrong appellate vehicle, and urged the court to summarily affirm the superior court based on the plain language of RSA 105:13-b, and the interaction between the statute and the Right-to-Know Law. SA123-37. The defendants also argued that the court correctly denied the motions to seal. SA137-40. The defendants also filed a limited objection to the State’s Motion to redact officers’ identifying information. SA145-48.

The State objected to the defendant’s motion, arguing that the case presented substantive questions of statutory interpretation that this Court had yet to fully consider or resolve and that the resolution of these questions will have broad implications for criminal discovery and civil right-to-know request throughout the State. SA 164-67, 169-72. The State withdrew its request for this Court to review the superior court’s denial of the motions to seal on the basis that the superior court had subsequently granted motions to accept redacted copies of the pleadings. SA172-76. On June 10, 2021, this Court accepted the State’s petition for original jurisdiction and denied the defendants’ motion for summary disposal. SA178. This Court also granted the State’s motion to redact police officers’ names and departments from documents in the State’s appendix. SA179.

Certiorari is an “extraordinary remedy that is not granted as a matter of right, but rather at the court's discretion.” Petition of New Hampshire Division of State Police, ___ N.H. at ___, ___ A.3d ___, 2021 WL 1152119 (slip op. at 3) (issued Mar. 26, 2021); see Sup. Ct. R. 11(1). This court’s review of the superior court’s decision on a petition filed pursuant to Supreme Court Rule 11 “entails examining whether the court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously.” Id.

The superior court decided a question of substance—whether materials taken directly from a police personnel file are “presumptively public documents” or confidential within constitutional limitations—in a manner that overlooks the plain language of RSA 105:13-b, upends long- standing practice in cases involving similar discovery, and transforms an undisputed criminal-discovery request into a fact-specific, highly litigated 91-A case. The court’s disagreement with the New Hampshire Legislature’s decision to make police personnel files confidential by statute—a matter of public policy—does not give the court the discretion to effectively abrogate RSA 105:13-b and introduce otherwise unnecessary delays and civil legal issues into criminal cases. This Court should exercise its discretion and reverse the superior court’s denials of the protective order in each of the three criminal cases.

THAT RSA 105:13-b PROVIDES NO CONFIDENTIALITY TO

Although this Court “generally review[s] trial court decisions regarding discovery management and related issues deferentially under [the] unsustainable exercise of discretion standard, where, as here, the court’s ruling is based on its construction of a statute, [this Court’s] review is de novo.” Petition of New Hampshire Division of State Police, ___ N.H. at ___, 2021 WL 1152119 (slip op. at 7) (quotation omitted). This Court is the final arbiter of the intent of the Legislature as expressed in the words of a statute considered as a whole. State v. Proctor, 171 N.H. 800, 805 (2019). This Court first looks to the language of the statute itself, and, if possible, construes that statutory language according to its plain and ordinary meaning. Id. This Court interprets legislative intent “from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. This Court “must give effect to all words in a statute, and presume that the legislature did not enact superfluous or redundant words.” Id. This Court “interpret[s] a statute in the context of the overall statutory scheme and not in isolation.” Id. This enables the Court “to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme.” Hogan v. Pat's Peak Skiing, LLC, 168 N.H. 71, 73 (2015). This Court “construe[s] all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Petition of Carrier, 165 N.H. 719, 721 (2013).

RSA 105:13-b, titled “Confidentiality of Personnel Files, ” is “designed to balance the rights of criminal defendants against the countervailing interests of the police and the public in the confidentiality of officer personnel records.” Duchesne v. Hillsborough Cty. Att’y, 167 N.H. 774, 780 (2015). RSA 105:13-b makes police personnel files strictly confidential with two narrow exceptions that relate specifically to the discharge of prosecutors’ Brady and Laurie obligations. Beyond those obligations, police personnel file material remains confidential unless a defendant meets a high burden of probable cause that a file contains relevant information. In all other instances, the file remains confidential. The first paragraph of the statute identifies the first exception:

“Exculpatory evidence in a police personnel file of a police officer who is serving as a witness in any criminal trial shall be disclosed to the defendant.” RSA 105:13-b, I (emphasis added).

The third paragraph of the statute delineates the only other exception to police personnel file confidentiality, stating that no police personnel file of an officer serving as a witness in a criminal case will be disclosed unless the “sitting judge makes a specific ruling that probable cause exists to believe the file contains evidence relevant to that criminal case.” RSA 105:13-b, III. In that event, “[t]he judge shall examine the file in camera and make a determination whether it contains evidence relevant to the criminal case, ” and, then, “only those portions of the file which the judge determines to be relevant in the case shall be released to be used as evidence....” Id. The statute closes by reaffirming the strict confidentiality of police personnel files: “The remainder of the file shall be treated as confidential and shall be returned to the police department employing the officer.” Id.

The plain language of the statute, in short, makes police personnel files broadly confidential with limited exceptions to protect a defendant’s constitutional right to discovery. This Court’s decisional law recognizes this basic principle. See Gantert v. City of Rochester, 168 N.H. 640, 646 (2016) (citing RSA 105:13-b for the proposition that “police personnel files are generally confidential by statute”); see also In re Petition of State, 153 N.H. 318, 321 (2006) (citing RSA 105:13-b and repeatedly referring to police personnel files as “confidential personnel files”). When RSA 105:13-b, I is read within the context of the statute as a whole, the statutory language and scheme makes plain that a defendant has a right to receive exculpatory evidence. The State readily recognizes this right. However, a defendant’s right to receive potentially exculpatory material as a matter of statute and constitutional law, does not equate to a right to redistribute that material, especially when the legislature has explicitly decided to make materials contained in police personnel files confidential. The statute mandates disclosure to the defendant. But the statute does not provide the defendant with an express disclosure right, but instead makes clear that police personnel file material must otherwise remain confidential.

Accordingly, the superior court erred when it denied the assented-to motions for protective orders in each case on the basis that “[n]othing in [RSA 105:13-b, I], or the statute as a whole, suggests that such exculpatory evidence, once disclosed, must be kept confidential.” SD91. The court’s novel statutory interpretation is erroneous because it does not construe RSA 105:13-b, I, together with the rest of the statute to effectuate the statute’s overall purpose. See Carrier, 165 N.H. at 721. As this Court explained in Duchesne, the Legislature enacted RSA 105:13- b “to balance the rights of criminal defendants against the countervailing interests of the police and the public in the confidentiality of officer personnel records.” 167 N.H. at 780 (emphasis added). The court’s interpretation of RSA 105:13-b, I as “nothing more than a statutory command to the prosecutor to provide discovery, ” SD91, is therefore erroneous because it overlooks the statute’s plain language, statutory purpose, and disregards the context of the statute as a whole. See Carrier, 165 N.H. at 721.

The court’s interpretation, which allows a defendant to do whatever he or she wants with potentially exculpatory evidence from a police personnel file, also renders an absurd and unjust result. See id. It would be absurd if the only people in New Hampshire with the power to undercut the confidentiality that the Legislature elected to extend to police personnel files were criminal defendants who received strictly limited disclosures for the specific purpose of their particular criminal defense. Moreover, it would be unjust if a defendant—who may believe that selective disclosure could assist his case—released confidential information to the public before a trial court has even ruled on its admissibility or materiality. Such revelations could interfere with the judicial process by tainting the jury pool and interfering with the parties’ ability to try the case. This Court should reverse the superior court’s interpretation of RSA 105:13-b and conclude that the statute’s plain language and purpose do not give a defendant unbridled discretion to redistribute confidential materials from a police officer’s personnel file pretrial.

The superior court erred when it treated the criminal discovery matter as a 91-A request and concluded that police personnel records are presumptively public records under RSA 91-A:4 because it: (1) misinterpreted the applicability of the Right-to-Know Law to criminal discovery in general; (2) overlooked the fact that RSA 105:13-b constitutes a specific statutory exemption to 91-A; and, (3) failed to recognize that even setting aside the statutory exemption, under RSA 91-A:5, “personnel” records are “exempted” from per se disclosure and information compiled for law enforcement purposes receives additional protections under the Murray exemption.

The superior court erred as a matter of law when it analyzed the assented-to discovery requests under a 91-A framework instead of the applicable rules of criminal procedure. As this Court held in New Hampshire Right to Life, the Right-to-Know Law “should not be used to circumvent... discovery rules.” New Hampshire Right to Life v. Dir., New Hampshire Charitable Trusts Unit, 169 N.H. 95, 106 (2016). Federal courts interpreting FOIA, a body of law this Court frequently considers when construing RSA 91-A, have also long-held that public record requests do not extend the scope of discovery permitted under the applicable rules of criminal procedure in pending criminal matters. See, e.g., N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (providing that “FOIA was not intended to function as a private discovery tool”); United States v. U.S. Dist. Court, et al., 717 F.2d 478 (9th Cir. 1983); Fruehauf Corp. v. Thornton, 507 F.2d 1253 (6th Cir. 1974); United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1978).

The reasoning in United States, 717 F.2d at 480-81, as expressed by then Ninth Circuit Court of Appeals Judge Anthony Kennedy is particularly helpful in demonstrating why the orderly and efficient operation of the criminal justice system requires that the Right-to-Know Law not be used to transform otherwise routine, and statutorily-governed criminal discovery. In the Ninth Circuit case, a criminal defendant awaiting trial made a public record request pursuant to FOIA. Id. at 479. The prosecutor did not turn over the requested records because they were not “material to the preparation of the defense, ” which is the standard for discovery established by Fed. R. Crim. P. 16. Id. at 480. In the criminal matter, the defendant moved to compel the government to produce the requested FOIA records. Id. The superior court conducting the criminal case ordered the United States to release the documents to the court for inspection or file a detailed index of the documents and any claimed FOIA exemptions. Id. at 479. The United States Court of Appeals for the Ninth Circuit held that it was improper for the trial court to order the production of the FOIA records in the criminal matter, because “in criminal cases the Freedom of Information Act does not extend the scope of discovery permitted under Rule 16.” Id. at 480. The Ninth Circuit took the unusual step of intervening in the trial court matter because the “necessary consequence of the trial court’s ruling would be that, as a routine discovery device in criminal cases within this circuit, counsel would request disclosure under [FOIA], a substantial displacement of the balance established for criminal discovery by Rule 16.” Id. at 481. The Ninth Circuit explained that the “harm to the Government in allowing FOIA discovery to override Rule 16 would be substantial in this case and in all later criminal cases…compel[ing] [it] to devote its scarce resources to screen and process FOIA material.” Id. The Court noted that allowing FOIA to supplement criminal discovery would also impose asymmetric burdens on the litigants: “the prosecution, instead of concentrating on the criminal case, would be compelled to devote its scarce resources to screen and process FOIA material” but “[d]efense counsel would not be under a similar burden.” Id. The Ninth Circuit issued a Writ of Mandamus and directed the district court to vacate the orders requiring the Government to comply with FOIA requests in the middle of a criminal discovery matter. Id.

Circuit Courts throughout the country have similarly concluded that public records requests do not alter or expand a criminal defendant’s discovery rights beyond those already provided by statute and the Rules of Criminal Procedure. For example, the Fifth Circuit Court of Appeals explained that “[a]lthough information obtained through the FOIA may be useful in a criminal trial, ... FOIA was not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided by the Federal Rules of Criminal Procedure.” United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977). The United States Court of Appeals for the D.C. Circuit has similarly observed that “FOIA is not a substitute for discovery in criminal cases or in habeas proceedings.” Roth v. U.S. Dep’t of Just., 642 F.3d 1161, 1177 (D.C. Cir. 2011); see also United States v. Brooks, 449 F. App’x 91, 93 (3d Cir. 2011) (“Nor does FOIA otherwise expand the scope of discovery available in a criminal case.”); Fruehauf, 507 F.2d at 1254 (“We are of the view that the Freedom of Information Act was not intended to serve as a substitute for criminal discovery.”).

Here, the superior court—as opposed to the defendants—interjected a right to know analysis in the middle of the criminal case. But the fact that the court, as opposed to the defendant, introduced the inapplicable analysis is of no moment: the principles of substantive law and judicial efficiency that led the Circuit Courts in the cases cited above to reject the application of FOIA into criminal discovery apply with equal force. Just as FOIA was not intended to delay litigation, impose asymmetric burdens during criminal discovery, or enlarge the scope of documents available to a defendant during criminal discovery in federal cases, RSA 91-A was not intended to delay litigation, impose additional pleading burdens on the State, or enlarge a defendant’s discretion to disclose confidential documents to the public pending trial.

Furthermore, if this Court affirms the superior court’s application of the Right-to-Know framework in this otherwise routine, assented-to discovery request, the harm to the State’s orderly and efficient criminal justice operation will be substantial and similar to the disruptions experienced in the cases cited above. The necessary consequence of such a ruling “would be that, as a routine device in criminal cases... counsel would request disclosure under the [Right to Know Law], a substantial displacement of the balance established for criminal discovery.” United States, 717 F.2d at 481. In the absence of instruction from the Legislature that it intends for rules of criminal procedure and discovery to be replaced by the RSA 91-A framework, this Court conclude find that the superior court erred as a matter of law when it sua sponte interjected a RSA 91-A balancing analysis into a criminal discovery matter. To be sure, a criminal defendant—like any member of the public— retains the right to seek information pursuant to Right to Know Laws. See Morgan v. U.S. Dep't of Just., 923 F.2d 195, 198 (D.C. Cir. 1991) (noting that “a defendant’s right to obtain information from the government in discovery under the Federal Rules of Criminal Procedure is separate and independent from his right to obtain the information under the FOIA”). However, “the disclosure obligation that Brady [and Laurie] imposes at a defendant’s criminal trial based on constitutional considerations is not the same disclosure obligation imposed under FOIA [and 91-A] by Congress [and the New Hampshire Legislature].” Boyd v. Crim. Div. of U.S. Dep’t of Just., 475 F.3d 381, 390 (D.C. Cir. 2007). “In other words, the disclosure requirements are not coextensive.” Id. A criminal defendant—like any other individual—may make a Right to Know request pursuant to the 91-A statutory scheme and government agencies can respond as they would for any other member of the public. See U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 771 (1989) (noting that “the identity of the requesting party has no bearing on the merits of his or her FOIA request”). However, because Right to Know Requests and criminal discovery remain separate and independent legal frameworks, a trial court errs if it conflates the two by applying a public records request analysis to expand or alter criminal discovery. Therefore, this Court should hold that the superior court erred as a matter of law when it conflated an assented-to criminal discovery matter governed by statute and long-standing court practice with RSA 91-A and ordered the parties to treat the assented-to criminal discovery matter as if it were a disputed, civil Right to Know case.

The superior court erred when it concluded that police personnel records are presumptively public records because it overlooked the fact that RSA 105:13-b constitutes a statutory exemption to the Right-to-Know Law. RSA 91-A:4, I, states that citizens may inspect governmental records “except as otherwise prohibited by statute....” RSA 105:13-b is just such a statute. See New Hampshire Ctr. for Pub. Int. Journalism v. New Hampshire Dep't of Just., 173 N.H. 648, 656 (2020) (assuming without deciding that “RSA 105:13-b constitutes an exception to the Right-to-Know Law and that it applies outside of the context of a specific criminal case in which a police officer is testifying”).

As stated above, RSA 105:13-b prohibits even a criminal defendant from accessing or inspecting police personnel files outside of the narrow constitutional disclosures required by Brady/Laurie. Other than the limited and narrow disclosure provisions, the statute expressly states that materials from personal files shall remain confidential. RSA 105:13-b, III. The statute establishes, therefore, that the public has no right to access or inspect police personnel files. Had the Legislature intended for members of the public to be able to review a police officer’s personnel file under the Right-to-Know law, it would have so stated. Instead, the Legislature placed police personnel files beyond the scope of an RSA 91-A request by enacting a statute that ensured limited disclosure to meet a constitutional requirement to a particular criminal defendant in a particular criminal case. RSA 105:13-b, III. Otherwise, even within the context of that particular criminal case, the file “shall be treated as confidential.” RSA 105:13-b, III. Therefore, the court erred when it denied the assented-to protective order for materials taken directly from police personnel files on the basis that these documents “are subject to mandatory public disclosure under the Right to Know statute.” SD89.

The court’s interpretation of RSA 105:13-b as “nothing more than a statutory command to the prosecutor to provide discovery, ” SD91, also leads to an absurd result. State v. Gallagher, 157 N.H. 421, 423, 951 A.2d 130, 131 (2008) (“We do not presume that the legislature would pass an act leading to an absurd result.....”) (quotation omitted)). If this Court affirms the superior court’s construction of RSA 105:13-b, and interjection of RSA 91-A in the context of criminal discovery, a criminal defendant could circumvent the threshold probable cause requirement in RSA 105:13-b by simply requesting a police officer’s entire personnel file under the Right-to- Know Law during the pendency of the criminal discovery process. The absurdity of this result, in which a criminal defendant would have less right to discovery within the context of his criminal case than as a member of the public seeking the same documents, provides additional evidence that the legislature intended RSA 105:13-b to constitute a statutory exemption to the Right to Know Law. Accordingly, the superior court erred as a matter of law when it disregarded RSA 105:13-b as “nothing more than a statutory command to the prosecutor to provide discovery, ” SD91, and failed to conclude that RSA 105:13-b constitutes a statutory exemption to the Right to Know law.

Even if the Legislature had not enacted RSA 105:13-b and statutorily exempted police personnel records from the Right-to-Know law, the Right-to-Know law itself recognizes that personnel records are not—as the superior court claims—“presumptively public records.” SD52. RSA 91-A:4, I, states that citizens may inspect governmental records “except as otherwise prohibited by... RSA 91-A:5.” RSA 91-A:5 provides that certain government records are exempt from disclosure, including: “[r]ecords pertaining to internal personnel practices; confidential, ... personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute an invasion of privacy.” RSA 91- A:5, IV. In May 2020, this Court affirmed “records documenting the history or performance of a particular employee fall within the exemption for personnel files.” Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 325, 340 (2020); RSA 91-A:5, IV.

Personnel records, like the other categories of records in RSA 91- A:5, IV, are not per se exempt from disclosure or per se available to the public. Rather, personnel records are “sufficiently private” so as to trigger this Court’s well-established three-step 91-A analysis. Reid v. New Hampshire Att'y Gen., 169 N.H. 509, 528 (2016). This fact-specific balancing test assesses and balances an individual’s privacy interest and the government’s interest in nondisclosure against the public interest in disclosure. Id. at 528-29. To the State’s knowledge, this Court has never concluded that the balance weighs in favor of disclosure in a case involving materials contained in a police officer’s personnel file. Indeed, it remains an open question of law whether even information that is derived from, but not contained within, a police personnel file is subject to unredacted disclosure under 91-A:5, IV. See New Hampshire Ctr. for Pub. Int. Journalism, 173 N.H. at 651 (holding the EES “is neither confidential under RSA 105:13-b nor exempt from disclosure under the Right-to-Know law as an ‘internal personnel practice’ or a ‘personnel file’” but remanding to the trial court to evaluate under the 91-A three-part balancing test). 7 Therefore, even setting aside the statutory protections contained in RSA 105:13-b, police personnel records are not "presumptively public records” because members of the public are not entitled to these documents on demand.8 Federal cases interpreting FOIA provisions similar to the personnel exemption in RSA 91-A also support the proposition that police personnel records are not “presumptively public records” but instead fall within an exemption to a public records request. Seacoast Newspapers, Inc., 173 N.H. at 338. See, e.g., Reporters Comm. For Freedom of Press, 489 U.S. at 755-56 (noting “Exemption 3 applies to documents that are specifically exempted from disclosure by another statute. [5 U.S.C.] § 552(b)(3). Exemption 6 protects ‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’ [5 U.S.C.] § 552(b)(6) Exemption 7(C) excludes records or information compiled for law enforcement purposes, ‘but only to the extent that the production of such [materials]... could reasonably be expected to constitute an unwarranted invasion of personal privacy.’ [5 U.S.C.] §552(b)(7)C).”).

To the State’s knowledge, individuals and entities in New Hampshire have submitted few, if any, Right-to-Know requests for material contained in police personnel files. This procedural reality means that few, if any, trial courts in New Hampshire have had the opportunity to analyze whether RSA 105:13-b constitutes a statutory exemption to RSA 91-A or whether this Court’s balancing test weighs in favor of disclosure. This

within the 91-A:5, IV exemptions. Nevertheless the court contends that it would be “inappropriate” and a “prior restraint on speech relating to a matter of public record” for the court to grant a protective order for personnel files in the absence of a fact-specific 91- A argument. SD89. The 91-A statute treats medical records and personnel records the same: both are “exempted from the provisions of this chapter.” RSA 91-A:5. Therefore neither are “presumptively public records” that are per se available to any member of the public upon request. procedural reality also necessarily means that this Court has not had the opportunity to provide guidance on these issues of statutory interpretation and the applicability of other exemptions and privileges. For example, this Court has adopted the “Murray exemption” to 91-A requests. See Murray, 154 N.H. at 582; Montenegro v. City of Dover, 162 N.H. 641, 645 (2011). This exemption mirrors FOIA exemption 7 and exempts “records or information compiled for law enforcement purposes” from disclosure in six circumstances including when production of records would “constitute an unwarranted invasion of personal privacy, ” “disclose the identity of a confidential source, ” or “information furnished by a confidential source.” Murray, 154 N.H. at 582, see also 5 U.S.C. 552 (b)(7)(C)(D). According to Federal Guidance, personnel investigations of government employees fall within this exemption “if they focus on ‘specific and potentially unlawful activity by particular employees’ of a civil or criminal nature.” Freedom of Information Act Guide, 2004 Edition: Exemption 7 published by the United States Department of Justice, https://www.justice.gov/oip/foia-guide-2004-edition-exemption-7 (quoting Stern v. FBI, 737 F.2d 84, 89 (1984)). Although the “line between mere employee monitoring and an investigation of an employee that satisfies the threshold requirement of Exemption 7 is narrow, ” many courts have concluded that documents identifying a particular employee as having committing wrongdoing, documents detailing investigations into public employees, or documents identifying individuals who provided information about public employees on a confidential basis fall within the exemption. See, FOIA Guide, 2004 Edition: Exemption 7 (explaining when the exemption applies and collecting cases in footnotes 42 through 87).

Simply put, appeal of an assented-to criminal discovery request is not the appropriate avenue to resolve the complex, fact-intensive issues of first impression that arise when the parties’ assented-to motions are reframed and analyzed as Right-to-Know requests. In a properly raised 91- A request for police personnel records, individual officers, police unions, and other stakeholder groups who believe they would be affected by any court-ordered disclosure could ask the court’s permission to join the case or submit amicus briefs on the issues raised therein. The court could then issue a briefing schedule, make findings of fact, and resolve legal questions within the context of a fully litigated case. In addition, the contested, complicated, and likely lengthy civil case could proceed with no deleterious effect on the state’s criminal justice system.

The superior court erred when it reframed the assented-to criminal discovery motions as a 91-A case. The court deepened its error when it summarily concluded that police personnel files are presumptively public documents that must be disclosed to the defendant absent a protective order—and thereby to the public—unless the State makes a fact-intensive 91-A argument. No New Hampshire legal authority has ever determined that materials from a police personnel file are subject to either unredacted or redacted disclosure under RSA 91-A. Therefore, this Court should hold that the superior court—in concluding that the Right-to-Know Law applied in the context of the assented-to criminal discovery requests and required the State to make a fact-specific argument as to why documents in police personnel files should not be publically disclosed—erred as a matter of law.

The assented-to motions for protective orders in all three cases cited RSA 105:13-b as the basis for the parties’ understanding that the materials from the police officers’ personnel files are confidential by statute. SD53, 61, 64, 67, 74, 75, 78, 86. The proper and long-standing interpretation of RSA 105:13-b supports the parties’ understanding that the documents from police personnel files were confidential by statute. No statute, court practice, or rule prevented the court from granting the assented-to request. To the contrary, p rosecutors, criminal defense attorneys, and the courts have uniformly understood RSA 105:13-b as a statutory privacy right for police personnel files and have uniformly granted protective orders in cases involving potentially exculpatory evidence for the last twenty- five years. Unbroken trial court practice of granting protective orders in similar cases, together with several memoranda to State law enforcement agencies illustrate this understanding.

By way of background, in 1996, in response to this Court’s decision in State v. Laurie, 139 N.H. at 325, then Attorney General Jeffrey Howard distributed a memo to all law enforcement agencies about the disclosure of exculpatory and impeachment evidence. SA180- 85. That memo noted that “The New Hampshire Legislature created a statutory privacy right for police personnel files, RSA 105:13-b, that is similar to the privacy right afforded DCYF child abuse and neglect investigation records.” SA181.

In 2004, then Attorney General Peter Heed issued another memorandum establishing standardized guidelines and polices followed throughout the State to identify, manage, and disclose exculpatory evidence contained in police personnel files. SA186. The memo instructed county attorneys and law enforcement agencies to identify officers who were subject to possible Laurie disclosures and reiterated that a police officer’s “personnel file is confidential by statute, ” RSA 105:13-b. SA188, see also SA193, 198. The memo also included a sample motion that law enforcement could use when asking a trial court to authorize the State to disclose confidential materials to a defendant “subject to a protective order barring the parties from further disclosing the information in any form, or using the information for any purpose other than the pending litigation.” SA200-01.

In 2017, in response to changes in RSA 105:13-b and new case law, then Attorney General Joseph Foster issued a law enforcement memorandum which created a state-wide list of officers with exculpatory evidence in their police personnel files. SA203-07. The memo directed that “[i]n compliance with RSA 105:13-b, prosecutors will provide potentially exculpatory evidence directly to the defense for any law enforcement witnesses in the case. This disclosure should be done in conjunction with a protective order until it is determined that the information is admissible at trial.” SA206. The memo included a sample motion for a protective order and sample protective order. SA224-26, 227.

The assented-to motions for protective filed in the three cases at issue in this appeal followed the standard template and argued:

confidential with the exception of production for discovery in an on-going criminal matter. See RSA 105:13-b. The proposed protective order is necessary to ensure the confidentiality of the law enforcement officer’s personnel records while meeting the State’s competing interest in providing exculpatory evidence in a criminal matter, enabling the Defendant and his counsel to review complete discovery and prepare for trial. See generally, State v. Laurie, 139 N.H. 325 (1995); N.H. R. Prof Conduct 3.8(d).

SD51-52, 61-62, 64-65, 75-76. The proposed protective orders would prohibit defense counsel “from sharing or further disseminating these confidential documents and the confidential information contained therein with anyone other than Defense Counsel’s staff and the Defendant.” SD53, 63, 66, 77. The proposed order would also require defense counsel to file a motion with the court before “any of the materials contained within the personnel file be discussed in open court or used in this matter as evidence.” SD53, 63, 66, 77. To the best of the State’s knowledge, trial courts in New Hampshire have, without exception, granted protective orders in cases involving pre-trial disclosure of potentially exculpatory evidence contained within a police officer’s personnel file. C.f. Union Leader Corp. v. Town of Salem, No. 218-2018-CV-01406, at *27-28, (Rockingham Cty. Super. Ct. Jan. 21, 2021) (holding that an Internal Affairs Investigative Report that does not appear to have been contained within any individual officer’s personnel file must be disclosed with limited reactions); Provenza v. Town of Canaan, No. 215-2020-CV-155, at *14, DM 139 (Grafton Cty. Super. Ct. Dec 2, 2020) (holding that RSA 105:13-b did not shield public disclosure of an investigative report because “even if the Court was to “assume without deciding that RSA 105:13-b constitutes an exception to the Right-to-Know Law and that it applies outside of the context of a specific criminal case in which a police officer is testifying, an argument the plaintiff does not making, there is nothing in the records to suggest that the Report is contained in or is a part of the plaintiff’s personnel file”); Salcetti v. City of Keene, No. 213-2017-CV- 00210, at *4-5, DM 150-51 (Cheshire Cty. Super. Ct. Jan. 22, 2021) (not addressing RSA 105:13-b but ordering unredacted disclosure of a “[c]itizen [c]omplain file[s]” after noting that the “File” is “not a personnel file”). The superior court’s order suggests that it reads this Court’s opinion in Town of Salem as fundamentally changing the law with regard to materials contained within police personnel files. The court’s order states that: “the practice of willy-nilly issuing protective orders to gag the defense whenever the State provides exculpatory evidence of police misconduct is no longer tenable” because “the Town of Salem case did away with the categorical approach taken in Fenniman and replaced it with a fact-specific balancing test.” SD90-91; citing Town of Salem, 173 N.H. at 347; see also Fenniman, 136 N.H. at 624.

This Court’s opinion in Town of Salem did not change the legal landscape with regard to the proper interpretation of RSA 105:13-b or the applicability of RSA 91-A to materials contained within a police officer’s personnel file. Simply put, Town of Salem involved: 1) different facts—an audit report of an entire police department that was not contained within an individual officer’s personnel files; 2) a different procedural posture—a properly raised civil Right-to-Know Request as opposed to an assented-to criminal discovery matter; and 3) a different Right-to-Know exemption— the internal personnel practices exemption instead of the personnel practices exemption. Furthermore, because the document in Town of Salem was not contained in a police officer’s personnel file, the case did not trigger the heightened protections the Legislature extended to police personnel files by enacting RSA 105:13-b. See New Hampshire Ctr. for Pub. Int. Journalism, 173 N.H. at 656 (RSA 105:13-b “pertains only to information maintain in a police officer’s personnel file”). Therefore, this Court’s decision in Town of Salem does not provide a legal basis for the superior court’s unprecedented decision to deny assented-to discovery motions that found ample support in statute and judicial practice. The superior court plainly believes, as a matter of policy, that police personnel file materials should be available to the public, stating: While every case is different, and while there are factual exceptions to every rule, there is a strong and compelling public interest in disclosure of information relating to dishonest and assaultive behavior committed by police officers in the course of their official duties. The public has an interest in seeing how its police department investigates and disciplines its own. After all, it is the public, through its representatives that determines who will serve as police chief and how internal discipline will be monitored. The public interest is also served by preventing precisely what the State’s motions would accomplish, i.e. the inability for the defense bar in a particular locality to share information that casts doubt on the credibility of particular police witnesses.

SD93. And: [T]he motions for protective orders in these cases touch on public policy concerns that may be addressed in other fora, such as the Legislature, city councils, town select boards and police commissions. The nation as a whole is presently wrestling with the manner in which police misconduct is redressed and prevented. How can the public do its job if it does not know how the present system is functioning? SD94 (emphasis in the original). However, this Court has frequently recognized that “[m]atters of public policy are reserved for the legislature.” See, e.g., Doe v. Comm'r of New Hampshire Dep't of Health & Hum. Servs., ___ N.H. at ___, ___ A.3d ___, 2021 WL 1883165 (slip op. at 18) (issued May 11, 2021); CaremarkPCS Health, LLC v. New Hampshire Dep't of Admin. Servs., 167 N.H. 583, 591 (2015); see also Dolbeare v. City of Laconia, 168 N.H. 52, 56-57 (2015) (holding that to the extent to which a plaintiff relied upon public policy to support her statutory construction, the plaintiff made her argument in the wrong forum).

The judiciary’s function “is not to make laws, but to interpret them, [and] any public policy arguments relevant to the wisdom of the statutory scheme and its consequences should be addressed to the General Court.” Appeal of New England Police Benevolent Ass'n, Inc., 171 N.H. 490, 497 (2018) (quotation omitted). The legislature, by enacting a specific statute on the issue of the confidentiality of police personnel records, see RSA 105:13-b, and including an exemption for medical, personnel, and other confidential records in the Right-to-Know law, see RSA 91-A:5, IV, made the policy determination that police personnel records are confidential—not presumptively public.

The superior court may disagree with the Legislature’s policy determination, or believe that overriding policy reasons favor disclosure in cases involving police misconduct; however, disagreement on a matter of public policy does not give the court the discretion to disregard the Legislature’s choice and effectively amend the statutory scheme as it sees fit. C.f. Appeal of New England Police Benevolent Ass’n, Inc., 171 N.H. at 497 (analyzing a statute under the normal canons of statutory interpretation and noting that “[i]f the legislature disagrees with our interpretation, it is free to amend the statutory scheme as it sees fit”). The Legislature remains responsible for enacting statutes that balance policy considerations and it is currently working to do so on the very matters implicated by these cases. 9 As both this Court and the United States Supreme Court have observed, the “‘adversary process functions most effectively when we rely on the initiative of lawyers, rather than the activism of judges to fashion the questions for review.’” Hodges v. Johnson, 170 N.H. 470, 490-91 (2017) (Bassett, J., dissenting) (quoting Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 195 n.4 (1994) (Stevens, J., dissenting) (quotations omitted). The superior court unsustainably exercised its discretion when it denied the State’s assented-to requests for protective orders—requests supported by statute and long-standing precedent—and refashioned the matters into complex, fact-specific, civil Right-to-Know proceedings in order to advance the court’s public policy preferences. The superior court’s unsustainable exercise of discretion has undermined judicial effectiveness and the adversary process, has delayed discovery in all three criminal cases, and has resulted in a stay in a case that was previously set for jury selection on April 20, 2021. See SA45, 58. This Court should reverse the superior court’s narrative order, order the court to grant the assented-to requests for a protective order, and remand so that the defendants’ criminal cases can proceed.

WHEREFORE, the State requests that this Court order the Superior Court to grant the motions for a protective order in each case, and remand so the criminal cases can proceed.

The State requests a fifteen-minute argument.

The appealed decisions are in writing and appended to this brief.

I, Elizabeth C. Velez, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 9, 487 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

July 14, 2021 /s/Elizabeth Velez Elizabeth Velez

I, Elizabeth C. Velez hereby certify that a copy of the State’s brief shall be served on the following parties of record, through the New Hampshire Supreme Court’s electronic filing system: Alexander J. Vitale, Esquire, counsel for Jacob Johnson Peter R. Decato, Esquire, Henry R. Klementowicz, Esquire, Gilles R. Bissonnette, Esquire, Albert E. Scherr, Esquire, and Robin D. Melone, Esquire, counsel for Jeffrey Hallock- Saucier Carl D. Olson, Esquire, counsel for Nicholas Fuchs

July 14, 2021