Union Leader Corporation v. New Hampshire Department of Safety

“The reasonableness of any restriction on the public’s right of access to any governmental proceeding or record must be examined in light of the ability of the public to hold government accountable absent such access.” Associated Press v. State of New Hampshire, 153 N.H. 120, 125 (2005). This public has a right to know how the State of New Hampshire responded to the needs and behaviors of unidentified children in its custody on October 7, 2023. Plagued with crisis after crisis, and chronically understaffed, the Sununu Youth Center was regularly relying on the State Police for the safety of its inhabitants in October of 2023. (See Opening Brief of Plaintiff/Appellant, p. 11). The public has a right and a duty to know how the State Police handled the situation. How many Troopers responded? Were they in riot gear? Did the situation escalate or de-escalate in response to their presence? How long did it take them to get there? Union Leader’s request seeks information about the government’s response to events at the Sununu Youth Center on October 7th - not “court records of proceedings under [chapter 169-B]”.

The Department of Safety claims that it may not release the requested records in response to a Right-to-Know request because such release is “prohibited by statute” pursuant to RSA 91-A:4. It is not. There is no statute in New Hampshire prohibiting the Department of Safety from releasing records concerning juveniles. There is a statute prohibiting the publication of the name, address, and other identifying information about juveniles subject to prosecution pursuant to RSA 169-B, but that is not what Union Leader Corporation (hereinafter “Union Leader”) seeks to do. In withholding the records, the Department of Safety relies exclusively upon this Court’s application of RSA 169-B to the facts before it in the case of Petition of State, 172 N.H. 493 (2019). That reliance is misplaced. This case is distinguishable from Petition of State in several important ways.

Petition of State involved a request made by the Attorney General’s Office “in the context of a juvenile delinquency proceeding brought under RSA chapter 169-B” Id at 499. The request to release records originated within, and by a party to, a juvenile delinquency proceeding. It was because of the proceeding, and because of the Attorney General’s interest in contextualizing the confidential court proceeding, that the Attorney General asked the Circuit Court to release records. The analysis was framed “by balancing any release of information with the best interests of the juvenile” that was before the court (emphasis original). Id at 499-500. In this case, there was no juvenile before the Superior Court, and no analysis of what would be in the best interest of any juvenile. The framework of analysis is completely different in a case brought pursuant to RSA 91-A. In this case, the records are presumptively open and “when a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward non- disclosure.” Union Leader Corp., v. City of Nashua (141 N.H. 573, 476).

The Court is directed to “broadly construe provisions favoring disclosure and interpret the exemptions restrictively”, “with a view to providing the utmost information, in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents.” Union Leader Corp. v. New Hampshire Housing Finance Authority, 142 NH 540 (1997). The State has advanced no privacy interests or any other compelling governmental interest that can overcome the presumption of openness and the public benefit in being able to scrutinize the conduct of its public agents. See Union Leader Corp. v. Town of Salem, 173 NH 345 (2020).

Additionally, it is important to note that, in Petition of State, separate from its request to release a four hundred (400) page report, the Attorney General had already been allowed to release a twenty five (25) page report detailing the facts of the juvenile offense, its conclusions based on those facts, and detailing the scope of its investigation. In the case at hand, however, the state’s conduct is shrouded in complete secrecy. II. Release of redacted records is the reasonable result of a non- contradictory construction of RSA 91-A and 169-B, consistent with the legislative purposes of both statutes. “When interpreting two statutes which deal with a similar subject matter, we will construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statute." State v. Farrow, 140 N.H. 473, 475 (1995). The legislative purpose of 169-B is “to shield children under eighteen from the environment surrounding adult offenders and inherent in the ordinary criminal processes.” State v. Smith, 124 N.H. 509, 512-513 (1984).

Releasing redacted records in this case does not thwart the purpose of 169-B. The identities of the juveniles in custody at the Sununu Youth Center are unknown and will remain unknown. No juvenile will be subjected to an environment surrounding adult offenders or inherent in the ordinary criminal process. The record is completely void of any evidence that release of the information sought in this case will have any effect at all on any individual delinquent minor.

On the other hand, withholding the information sought in this case will completely thwart the legislative purpose of 91-A. That purpose is to provide oversight and accountability. The “ultimate goal in construing the Right-to-Know Law is to further the statutory and constitutional objectives of increasing public access to all public documents and governmental proceedings, and to provide the utmost information to the public about what its government is up to....” Prof'l Firefighters of N.H. v. Local Gov't Ctr., 159 N.H. 699, 705 (2010) (internal citations and quotations omitted). The tension between the desire to rehabilitate juvenile offenders, and desire to maintain open government is resolved by RSA 169- B:37, which makes it unlawful for any newspaper to publish, or any radio or television station to broadcast or make public the name or address or any other particular information serving to identify any juvenile arrested, without the express permission of the court; and it shall be unlawful for any newspaper to publish, or any radio or television station to make public, any of the proceedings of any juvenile court. (Emphasis added).

Redaction of information identifying a juvenile is the reasonable result that renders RSA 169-B:35 and RSA 91-A non-contradictory and furthers the legislative purpose of both statutes.

For the reasons set forth herein, the trial court erred in dismissing the Complaint and the Appellant therefore asks this Honorable Court to reverse the Order of the Merrimack Superior Court (Kissinger, J.) dated March 31, 2023, and grant Union Leader access to the requested records.

I hereby certify that a copy of the foregoing was served this 25th day of December, 2023, through the electronic filing system on all counsel of record.

I, Kathleen C. Sullivan, hereby certify that this brief contains approximately 1, 561 words, which is fewer than the 3, 000 word limit permitted by Supreme Court Rule 16(11). Counsel relied upon the word count of the computer program used to prepare this brief.