Union Leader Corporation v. New Hampshire Department of Safety

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My name is Kathleen Sullivan. I represent Union Leader Corporation and I have reserved two minutes for rebuttal. Please. As the court knows, this case is about whether in the context of a right to know request made pursuant to a 91 A, whether the statute entitled Juvenile case and court records, RSA 1 69 B, categorically exempts public records created and maintained by a public entity, the Department of State State Police, whose records are presumed open, whether those records are made categorically exempt, if they contain facts or information that form the basis of a juvenile delinquency proceed, even if all of the identifying information about a juvenile is redacted from them. And regardless of whether disclosure would serve the public interest, and I'd submit to the court that it does not, in our view, this case is about a potential profound, extensive undermining of the public's ability to hold the government accountable. Would that argument not also apply to individual juvenile uh, records? Juvenile delinquency records public might have an interest in knowing the types of activity committed by juveniles. Generally That would apply, but if it was a 91 a request, then, so A 91, a request for hereto for confidential and sealed juvenile records could result in disclosure, redacted disclosure of those records. I think it would require the court to do a balancing act if those records are confidential. And again, this is a question of whether the records at issue in this case, which are not court records, which are not, we're not asking the juvenile court to order release of records. We've asked, So investigate investigation records for any juvenile delinquency Proceeding would fall under the same argument. It would depend on whether it is a nine one, a request of an independent public body or of the court itself. And it wouldn't be a 91 a request of the court itself because doesn't apply to the juvenile courts or any other courts. Um, so what Would break the down? What would be the elements of the balancing? Well, if the records are deemed confidential, these records and the court, which, which would submit they're not. But if there was a balancing act to be performed, this court would weigh the public's interest in holding the government accountable. And in this particular case, we're talking about the state police conduct the state police's response in a government run institution plagued by violence secrecy that the public has asked for oversight and accountability of the public interest in what happens at the Sun Youth Center is of great. It's huge. And the balancing on the other side of what there is no identified juvenile, there is no privacy interest. I I want to get your argument about the records not being confidential in the first place, but just focusing on this balancing his suggestion and petition of the state that balancing was indeed appropriate in that case. And not only that, that at least release of the error report served an important function beyond the public interest, which was the rehabilitation of the youth involved. But in that case, the only statute, the only interests being considered, the only statute was 69 Because nine one A and the only interests issue were the best interest of the juvenile. That was it. The government. So Here with the N 91 a overlay with part one article A overlay is that in, in addition to that interest, you would consider the public's interest in, in what happened that night? Is that right? It's not really even in addition to that interest, because under 91 A we're balancing some compelling government interest, and I dunno what that is. If there isn't privacy of a juvenile in this case versus the government, the, I'm sorry, the public's interest in accountability and oversight. So in, in 1 69 B, the interests that the court balanced were the attorney general saying, we want to disclose our reasons for doing what we did. That is very, very different than the public's constitutionally enshrined interest in free press and in public access to records. So there was that government interest on one hand and whether disclosure of the records would the, the best interest of the juvenile. On the other hand, and it's important to note that in that case, in petition of state, the court found that disclosure of information wasn int the best interest of the juvenile. Right. But there had already been a 25 page report right? In petition of state that had laid out the basic set of issues and discussion. Yes. Yes. So you are arguing on confidentiality arrests on one 70 GAA, is that right? No one, no one 70 GAI don't even know if that's actually the right one. 78 G eight A. Okay. GAA thank you. And It carves out police reports, But that is applicable to case records which are not an issue in this. So where Are court records defined? I'm glad you asked that because in the statute itself, the text of the statute 1 69 B 2 35, sorry, section 35 2, it mentions police records. So we're looking at the language of the statute, plain, ordinary meaning of the words used. And it says that the court records of proceedings shall be kept in books and files separate from other records and withheld from public inspection. And then it goes on it, it's directing the juvenile courts of what to do with their records. Then it goes on to, uh, provide specific individuals some access under some specific circumstances. And then it moves on and says once its 11 reaches 21 years of age, all court records and individual records, individual institutional records, including police reports, shall enclos and put in in an inactive file. It does not say court records including police reports shall be closed and put in an inactive file. It says court records and individual institutional records including police records. The statute itself distinguishes between court records and police records right in the text of the statute. But Wouldn't that become irrelevant if your client made a request prior to delinquency petition being filed, obtained those records and then, uh, had them in the public, uh, forum, In other words, be available. How, If, if the statute is directing that police agency to the child turns 21 and you're gonna steal the records, how does that work? If you've already obtained the records? It isn't directing the police, it isn't directing the public agency. This statute is only directing the court saying once child has turned 21 the court records And, And These other records, I read that as these other records that are contained in the files In the court files. But that's not what it says. It says the court records and all these other things that are related wherever they may be, sort of the way I read it, It's not inconsistent with allowing disclosure beforehand because if those records were disclosed by an individual police department before a juvenile turned 21 and that police department took their records and put it in an inactive file, it's of no consequence to the prior disclosure. Does that make sense? Mm-Hmm. And here the entire premise of the union leader's request is that any identifying information or confidential information names will all be redacted? Yes. So that's that privacy interest or interest in protecting juveniles is, um, honored by cabining your request? Yes, Except to the extent that there would be, it would be known who might have been at the center during the time in question. As far as I know it isn't. So reading what the, the government's argument is that this statute, the text of 1 69 35 B prohibits disclosure under 91 a and it, it doesn't, the text of 1 69 B 35 does not say police departments or other public entities may not disclose investigative or law enforcement records pertaining to juveniles. It does not say that it could have, it could have said when it says that court records of proceedings shall be kept in books and files separate withheld from public exp it could have said court records of proceedings including police reports. But it doesn't, and no statute in New Hampshire makes law enforcement records pertaining to juveniles 91 a five has 13 categories of records that are exempt. Some are very specific school pupil records, some are very broad information technology records. It could have said law enforcement records, public records, other entities records regarding juvenile offenses are exempt from disclosure and it has not. So, so if I understand your argument under 1 69 B 35, paragraph two, it makes statute, makes a distinction. Court records are one thing, police records are something else. And I guess individual institutional records are also something else. What happens when the police record becomes part of the court record Then under 1 69 B 35, like in the case of petition of state, if someone asks the court to release those records, then the court may decline to do so. It has the discretion to do that, but when those records are contained and requested from some other entity, it has no effect. So your analysis wouldn't change regarding, um, the request if there was or was not a delinquency petition. In other words, your argument is the same post-petition as it would be pre-petition, Correct? Yes, your Honor. I have a red Good morning, your Honor. It's Brenda O'Donnell on behalf of the Department of Safety. Uh, I'd like to start a little bit where we left off with the definition of court records. And it's true that RSA chapter 1 69 B does not expressly define what constitutes a court record, but that's what the court was faced with in the petition of state case 1 72 New Hampshire 4 93. All of the arguments that the plaintiff is raising here are arguments that the Department of Justice in that case attempted to argue in saying, um, that law enforcement investigatory records should not constitute records. They're all arguments that this court considered and rejected starting point. First was, uh, DOJ argued in petition of state that law enforcement investigatory records can't be court records because often they're created before there is even a juvenile delinquency proceeding. Again, that's an argument this court rejected. And I think it's important to go to the, the starting point of this court's decision and petition of state, which was the public policy purposes sought to be achieved by RSA 1 69 B because that really informs why the court felt the need to interpret court records expansively and broadly to include underlying law enforcement investigatory records that are relevant to and likely to be included in future court records. And that include the facts that underlie the basis the plaintiffs say there is great public interest in, uh, law enforcement investigations including with juvenile, and it's true that the public has a great interest in all criminal proceedings and that's why in ordinary course criminal proceedings are public law enforcement's, investigations are scrutinized, trials are held in public. Isn't this more of an inquiry into the operation of a government agency, not an inquiry into a particular juvenile case? Doesn't that, doesn't that bear a great distinction? I don't think it does. And I think the, the reason is that these two competing things in 91 A, the purpose of 91 A is government accountability providing access, but RSA one 16 B, the legislature carved out a very different purpose and that purpose is shielding juveniles from the ordinary public criminal process. That's, But just because an agency deals with juveniles, how then would the public oversee that agency if everything they do is shielded by the juvenile privacy provision? Just because an agency touches on a juvenile, whether it's a a school issue or an administrative issue or a funding issue, why is it all shielded or is it just in this case? Yeah, I I'm not affirming that all records that touch on a juvenile in any circumstance should be shielded, but there's a difference between annual record that touches on juvenile and specific law enforcement investigation of a juvenile that may result in juvenile delinquency proceedings under the statute. And that's what the court found. You have the underlying point to no request, which was law enforcement records related to a particular incident on a particular date that necessitated state's response. And you have the court's order that found, um, after considering some information under seal, that there were juvenile delinquency proceedings that commenced based on that singular incident that all of the records related to that singular of responsive records related to that singular incident and that those records contain the facts and information that would underlie a juvenile link. So why Doesn't redaction Why doesn't redacting those records to omit names of I individuals? Why doesn't that follow the purpose of the statute and why Link? There are sort of two pieces of that and I think the starting point, normally when we think about redaction it's under 91 a because the purpose is to provide as much information to the public. But under 1 69, B 35, there's no language regarding redaction it is. These court records are, I'm sorry, um, court records of proceedings under this chapter shall be withheld from public inspection with no exception. It is so important that there are three different statutes in that chapter. Criminalizing disclosure of this information, you've got section 34 regarding, uh, victims' families, they're entitled to get some information misdemeanor if they provide that information. You've got 35 and 36, which operate to both prohibit public disclosure and to criminalize any person revealing this information. And you've got sections 37 and 38, which go further in that media organizations, they come across this information, however they get it also criminal act for them to disclose this. It's, um, so important under the statute that they have all of those bootstraps to make sure there is no way this information is getting out publicly. But, and also It just seems to me the state's position is actually threatening to undermine the purpose of the juvenile delinquency statute, which is protection of children. I mean part one, there's a constitutional overlay here. Part one Article A guarantees the people New Hampshire that agents of our government are accountable at all times and it seems there's a particularly heightened concern when those actions of government involve youth. And how are the people in New Hampshire hold in this instance the state police accountable for what he did that night at the Sun Center? Sir, I think this was one of the questions this court addressed in petition of state and there's no denying there is a public um, right to, to understand what the government is up to. But what the court said in petition of state is the legislature made a choice. These topics, this is, this is a nine One a request directed at the Department of Safety. It's not a petition brought to the Circuit court in Claremont. That's different, isn't it? It it's different in the context there, but the, the court still looked at all of the public purposes of 91 A and the language the court used was that the legislature determined that the, um, confidentiality to juvenile proceedings prevails over the public right of access to this information. Public right of access is what we're talking about in 91 a in the context of 91 A, the statute recognizes that the public has a right to inspect all governmental records except as provided by statute left that carve out for the legislature to enact specific exemptions. And here they did that, they did that through 1 69 B 35 2 and they specifically use the language shall be withheld from public inspection. Where In the statute does it say police? Where in the juvenile delinquency statute does it say police records are confidential? What the juvenile delinquency statute 1 69 B 35 2 says, is all court records of proceedings under this chapter, this court in a prior case that is precedent construed that case as being inclusive of underlying investigatory records? Um, both because they're relevant to and likely to become part of court records and because they include the same facts that underlie the basis. So that's That same precedent also provides that there was information that could be provided consistent with the statute in that 25 page report. Wouldn't there be something similar in this case that the state could provide? So what 1 1 69 35 2 says this additional access may be provided by court order. Court is a defined term that that statute, it's in 1 69 B two is defined to be the circuit court unless, and there's um, other places that refer specifically to the superior court by name. So what that's saying is the circuit court can grant additional access and it makes sense to leave that with the circuit court under 1 69 B because we're talking about information relevant to juveniles in a delinquency proceeding. If that's the court looking at this and if you look at petition of state, the court made sure that before any information went out, went to the juvenile, it went to their counsel, it went, uh, to the court as well, and the court was able in the context of an actual proceeding look at the information and its relevance to the individual in a delinquency proceeding. Would, would You be making the same argument if there were no juvenile delinquency proceedings that came out of this? If somebody just said, I want to know what the state police did that night, I wanna, I want their records and nothing came of it, no juvenile proceedings followed. Well, it sounds like you'd be making the same argument but it it seem to have Much. No, I think maybe there's, there's three potential situations. We have a situation here where the court found that there, there were juvenile delinquency proceedings and that's pretty clear that there's a record that underlie an actual delinquency proceeding. You may of a situation where there's an investigation but no proceedings have been initiated. But, um, the state could introduce evidence to the court that says they're likely to, they're anticipated they're going to be, and then you have a third situation where there's no likelihood of, um, juvenile diplomacy proceedings. I think in that latter category, if the state couldn't come to the court and say there are, you know, we are anticipating we are planning for juvenile delinquency proceedings, you wouldn't have a good argument that those investigatory records are court records of proceedings on this chapter. But in the other two situations, if um, the state is planning on bringing juvenile delinquency proceedings like here did bring them, then these records clearly are court records of proceedings under this chapter as that phrase is construed by this court in petition of state. How Do you reconcile your argument with the language of one 70 G eight A that talks about, uh, records created by third parties, police, police officers and that the request can be made directly to the third party who created the record? You know, I, I apologize Your Honor. I didn't specifically look at, um, case records under one 70 G, so I I can't appropriately respond to that. It would seem that there's sort of a carve out there for you. You can go to the police department to get the records. And why would there the distinction in terms of the overall statutory scheme between case records and court records given that car? Yeah, I Michael, My recollection for rating petition of state and when I looked at this much earlier is that case records. Um, when was the juvenile delinquency proceeding? DHHS becomes a party case records are what they're creating and that's governed by that separate statute and that's what in petition of state, similar to here you have investigatory records by, uh, in that case it was local police, FBI, New Hampshire, DOJ and the US Attorney's Office. Those the court looked at in the terms of court records finding that they didn't constitute case records under or one 70 G. There's No further questions. I'll rest of the brief. Thank you. Thank you attorney O' Attorney Settle. Your Attorney O'Donnell just stated that if a law enforcement record documents a particular incident on a particular date and contains facts that lead to a juvenile delinquency proceeding, then publication is prohibited by 1 69 35 and by extension publication would be criminal under 1 69 36. Two days ago the state police issued a report, a press release in which it documented a car chase that troopers were involved in through Hacker and Hopkinton at a hundred miles an hour where they used tire deflation devices to disable the vehicle and took the operator into custody, charged the operator with receiving stolen property, reckless conduct with a deadly weapon, disobeying police officer, reckless operation operating without a valid license. That operator was a juvenile under the state's construction. The public information officer who published this committed a crime. These are routine reports that are published and if that's okay, if then surely the public has a right to know what the state police were doing, what they did, why they were there. So a report similar to that press release would satisfy your client. My client is entitled to all of the reports that it has requested that exist. A summary like that press release would do it though A press release may be one of the records that exist that should be disclosed, but we are asking for the incident reports and any other records that document the response. Would Your client be entitled to the underlying records from that press release? Yes. Isn't there a distinction with the motor vehicle code in a juvenile who's charged as an adult for violating the motor vehicle code? I think that receiving stolen property and uh, reckless contact with a deadly weapon wouldn't necessarily be under the motor vehicle code. Um, your right honor. Okay, thank you very much. Counsel, please may the court in brief read thank.