Keene Publishing Corporation v. Fall Mountain Regional School District, Sau 60

Fall Mountain Regional School District in 2022 hired the law firm of Jackson Lewis PC of Portsmouth, New Hampshire to conduct a . Opening Brief, April 2, 2024 Order, p. 41. The investigation was . Id. at 56. It did not involve the District’s failure to act . Id. at 56-57.

On August 29, 2022, Keene Sentinel reporter Nail made a Right-to- Know Law request for “any and all documents from the Fall Mountain Regional School District related to the resolution of an investigation concerning Richard ‘Rick’ Elliott conducted by the law firm of Jackson Lewis P.C. of Portsmouth, New Hampshire in 2022.” Appendix I, p. 11.1 On September 13, 2022, District counsel responded stating in part: I am responding on behalf of the Fall Mountain School District to your August 29, 2022 RTK request printed below. I understand your request to be for a copy of the report and report file. Appendix I, p. 13.

District counsel provided the reporter with Jackson Lewis’ itemized bill in the amount of $17, 480.00 for the 48 hours spent on the investigation (Appendix I, p. 277) but denied the request for the report because it was exempt from disclosure as: 1 Citations to Appendix I refers to the public Appendix to Opening Brief of Plaintiff/Appellant Keene Publishing Corporation.

A confidential record disclosure of which would be an invasion of privacy, RSA 91-A:5, IV

A personnel record disclosure of which would be an invasion of privacy, RSA 91-A:5, IV; and

A record pertaining to internal personnel practices the disclosure of which would be an invasion of privacy, RSA 91- A:5, IV. Appendix I, p. 13.

District counsel also informed the reporter that “[t]he rest of the file is exempt from disclosure for the foregoing reasons and as preliminary drafts, notes and memoranda and other documents not in their final form and not disclosed or circulated to a quorum or majority of members of the school board, RSA 91-A:5, IX.” Id.

On October 21, 2022, the reporter sent an email to the Superintendent and District counsel, repeated her August 29, 2022 Right- to-Know Law request, and explained:

The Sentinel believes the public interest of the misconduct detailed in the report outweighs a public employee’s claim to privacy, and personnel records are not categorically exempt from release under RSA 91-A, as the N.H. Supreme Court ruled in Seacoast Newspapers, Inc. v. Portsmouth (2020) and Union Leader Corp. v. Salem (2020) (emphasis added). Appendix I, p. 15.

On October 26, 2022, District counsel responded again, denied the reporter’s request, and explained why the cases cited by the reporter did not require the District to disclose the requested information. Appendix I, p. 16.

Almost two months later, the reporter again emailed the Superintendent and District counsel repeating her original request and explaining why under the balancing test “[t]he public interest in disclosure of the report outweighs what minimal privacy interest a government employee may have in information about his official conduct. To the extent that the report identifies any victims or students, their privacy interests can be protected by redactions, as was the case in Provenza.” Appendix I, pp. 18-19 (emphasis added). District counsel denied the request again and explained why she disagreed with the reporter’s reading of Provenza. Appendix I, p. 20.

Three months later, the reporter emailed the Superintendent and District counsel repeating the original request and stating that privacy interests could be addressed by redacting identifying details of personnel. Appendix I, p. 22. District counsel on March 23, 2023 responded stating: “The school district is again denying your request for the reasons stated in my September 13, October 26 and December 27 emails.” Appendix I, p. 23.

Keene Publishing filed its Petition For Access to Public Records on June 2, 2023. Appendix I, p. 5. Keene’s Petition was not limited to Jackson Lewis’ report and investigation file but requested “an Order requiring SAU 60 to disclose all of the records and information in its possession relating to the investigation of Elliott.” Appendix I, Prayer for Relief B, p. 9. In response, the District provided Keene Publishing with the District’s Policies ACAB-R, and GBLB, and a RSA 91-A:4, I-a statement. Appendix I, pp. 315-329.

Mr. Elliott intervened to assert his privacy interests. Appendix I, p. 28.

The District requested that the Cheshire County Superior Court (Smith, J., presiding) review the records in camera to determine whether they were exempt from disclosure and the Court granted the District’s request. Appendix I, pp. 35-39; Opening Brief, pp. 74, 78. In order to assist the trial court and parties in understanding the basis of the District’s exemptions, the District submitted a Vaughn Index and memorandum of law. Opening Brief, pp. 75, 77, 78; Appendix I, pp. 104, 144.

After the trial court conducted its in camera review, it issued an Order stating:

The court finds that all or some of the records may be subject to exemptions under RSA 91-A, but that the plaintiff is deprived of the opportunity to make complete, informed arguments without access to the records, in redacted form. The court will redact all names, titles, addresses, and other contact or identifying information of individuals, other than the intervenor, who were interviewed as part of the investigation, Once the redactions are complete, the records will be distributed to the parties. The protective order above shall apply to these records, and further protective orders shall issue upon their disclosure to the parties. Opening Brief, October 30, 2023 Order, p. 73.

The trial court in its October 30, 2023 Order also granted the Intervenor’s motion for a protective order. Id. at 72.

After the trial court redacted the in camera records, it provided the parties with a copy of the redacted in camera records and issued a protective order for the redacted records. Opening Brief, December 8, 2023 Order, pp. 67-68. The trial court explained that it redacted documents “clearly protected by the attorney-client privilege and/or the work product doctrine” and identified those documents by the Vaughn Index pages. Id. at 67. The trial court also stated that it would address with the merits whether, as the District asserted, the attorney-client privilege or work product doctrine applied to the at pages 208-244 and whether the drafts of at pages 357-361 were exempt. Id.

At the merits hearing and in its trial memorandum, the District informed the trial court that it was no longer asserting the attorney-client privilege exemption for the at pages 208-244 because that document was provided to the complainants and respondent during the investigation process. Appendix I, pp. 257-258, 270-271; Appendix III, pp. 41-42, 46. However, the District also informed the trial court that it was still asserting that the entire document was exempt from disclosure under RSA 91-A:5, IV as a personnel record, confidential or other file whose disclosure would constitute an invasion of privacy. Appendix I, pp. 258, 271. The District also argued that the was exempt from disclosure under RSA 91-A:5, IX as preliminary documents not in their final form and not disclosed, created, or available to a quorum of a public body. 2 Appendix I, p. 271.

The trial court issued a twenty-two page Order on the Merits which denied Keene Publishing’s petition for access to the District’s public records and denied its request for attorney’s fees. Opening Brief, April 2, 2024 Order, p. 61.

The trial court in a detailed analysis properly found that the records were exempt from disclosure as personnel, confidential, or other files whose disclosure would constitute an invasion of privacy (RSA 91-A:5, IV) and exempt from disclosure under the attorney- client privilege and work product doctrine (RSA 91-A:5, XII). The Right-to-Know Law recognizes that not all governmental actions are subject to public disclosure. The exemptions in RSA 91- A:5, IV protect the interests of employees who work for the government. The exemption in RSA 91-A:5, XII protects the communications between a government client and its attorney. The records sought involve and privileged communications between the District and its counsel regarding the investigation. There is no evidence to support Keene Publishing’s assertion that the investigation involved the District’s failure to act

. The Intervenor is not a high level District employee. Rather, the investigation The public interest in disclosure is not substantial.

In contrast, the requested records include

The records include

The Intervenor, complainants and witnesses have privacy interests that would be invaded by a disclosure of the records. Disclosure of the records would subject these individuals to, .

Their privacy interests outweigh the public interest in disclosure. Given the small size of the school and small number of teachers, redaction of names would not protect the privacy interests of the employees. Redactions would also lead to information about the Intervenor being taken out of context.

The District also has an interest in protecting the confidentiality of its personnel files, the privacy interests of its employees, and addressing. In order to meet its obligations to investigate, the District needs employees to file complaints and participate in investigations. Even without the possibility that the investigation records would be released to the public, . Providing Keene Publishing access to the records would impair the District’s ability to investigate workplace misconduct.

Keene Publishing is not entitled to attorneys fees. Prior to suit, the District understood and it was confirmed by the reporter, that the request was for the investigator’s report. When the District became aware in Keene Publishing’s suit that its request was broader, the District provided Keene Publishing the RSA 91-A:4, I-a statement. The RSA 91-A:4, I-a statement by its explicit terms satisfied the requirements of RSA 91-A:4, I-a and the District was not required to disclose the or other records to satisfy the requirements of RSA 91-A:4, I-a.

The Right-to-Know Law “does not afford the public an absolute right of access to the workings of governmental bodies; it does recognize certain exceptions and exemptions.” Orford Teachers Assoc. v. Watson, 121 N.H. 118, 120 (1981) (citing RSA 91-A: 3 and RSA 91-A:5); Ortolano v. City of Nashua, 176 N.H. 175, 179 (2023).

The unsustainable exercise of discretion standard applies to a review of a trial court’s decision to conduct an in camera review to determine whether an exemption applies. See ACLU of New Hampshire v. City of Concord, 174 N.H. 653, 664 (2021). This Court defers to the trial court’s findings of fact if they are supported by the evidence and are not erroneous as a matter of law. Provenza v. Town of Canaan, 175 N.H. 121, 124 (2022). The trial court’s interpretation of the law is reviewed de novo. Id.

After the investigation, the District and Intervenor entered into 3 Appendix II, pp. 376-382. The included a document entitled “Fall Mountain Regional School District/Richard Elliot RSA 91-A:4, I-a” that would be provided to the public in response to Right-to-Know Law requests. Appendix II, pp. 378, No. 13; 381.

RSA 91-A:4, I-a requires that when a public employee resigns, is discharged, or retires, records of payments made in addition to regular salary and accrued vacation, sick, or other leave, must be made immediately available. The RSA 91-A:4, I-a statement provided to Keene Publishing stated that Intervenor resigned in July 2022, the District paid Intervenor $17, 991.77 and continues to pay its 80% share of Intervenor’s health insurance as required by the collective bargaining agreement through October 31, 2022. Appendix II, p. 381. The statement also identified the lump sum payment and health insurance as payments in addition to regular salary, accrued vacation, sick, or other leave to which Intervenor was entitled. As the trial court found, the statement by its express terms included all the information that must be provided to the public under RSA 91-A:4, I-a. Opening Brief, p. 60.

The District did not provide Keene Publishing with the RSA 91-A:4, I-a statement prior to suit. The District understood and Keene Publishing never disputed that its Right-to-Know Law request was for the investigator’s report and file. In fact, the reporter in her October 21 and December 14, 2022 emails explained why she was entitled to the report. Appendix I, pp. 15, 18-19. The District responded to the Right-to-Know Law request based on its interpretation of the request which was confirmed by the reporter. When it became clear after the Petition was filed that Keene Publishing wanted more than the report, the District voluntarily provided Keene Publishing with a copy of the RSA 91-A:4, I-a statement and other records that were not exempt from disclosure. Appendix I, pp. 315-329. The District did not provide the remainder of the because it is confidential .

Appendix II, p. 377, No. 9. In addition, as explained in Argument Section III, the trial court properly found that the was exempt from disclosure under RSA 91-A:5, IV. 4 Opening Brief, p. 59.

The trial court established a process for reviewing the records that protected the District’s interests; the privacy interests of the complainants, witnesses, and the Intervenor; and provided Keene Publishing with ample information about the records. In that process, the trial court reviewed the records in camera, redacted the in camera records, and provided Keene Publishing with the redacted records subject to protective orders. Keene Publishing also had a detailed Vaughn Index with a description of each document, its date, and claimed exemption. The trial court’s process provided Keene Publishing with more information than is required by this Court’s cases. Yet, Keene Publishing contends that the trial court erred in undertaking an in camera review without its counsel in violation of In re Keene Sentinel, 136 N.H. 121 (1992). Opening Brief, p. 6. It was proper for that trial court in its discretion to review the records in camera without the presence of Keene Publishing’s counsel. When there is a question whether documents are exempt from public disclosure under the Right-to-Know Law, “the trial judge should conduct an in camera review to determine whether portions of the [materials] meet any of the other statutory exemptions.” Professional Firefighters of New Hampshire v. Healthtrust, Inc., 151 N.H. 501, 506 (2004) quoting Orford Teachers Assoc., 121 N.H. at 122. In Professional Firefighters, 151 N.H. at 506, the New Hampshire Supreme Court found that the trial court erred when it ordered disclosure of a contract and minutes of meeting with counsel without conducting an in camera review to determine whether the records contained material exempt from disclosure.

This Court has recognized that the Right-to-Know Law “requires ‘the necessary accommodation of... competing interests.’” American Civil Liberties Union of N.H. v. City of Concord, 174 N.H. at 661 quoting Clay v. City of Dover, 169 N.H. 681, 686 (2017). Since the government has exclusive control over the information which it claims is exempt from disclosure, the government bears the burden of demonstrating that the document is exempt. Id. However, there must be a process to access the government’s claimed exemptions without disclosing the very information that is exempt. Id. That process is in camera review by the trial court of the documents at issue without the presence of counsel. Id. at 662. To assist the trial court in its review, a Vaughn Index is submitted by the government with a general description of each document withheld and the justification for its nondisclosure. Professional Firefighters of New Hampshire, 151 N.H. at 506. In camera review is plainly appropriate where the release of the records may cause an invasion of privacy. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 478 (1996) (citations and quotations omitted). In responding to Right-to-Know Law requests, the government is not required to publicly disclose the documents that would undermine the very purpose of the exemption. ACLU, 174 N.H. at 664.

In this case, the District did not request an ex parte 5 in camera hearing, but that the trial court review the requested documents in camera without the presence of counsel and the parties. In camera review was required to protect the privacy interests of the Intervenor, complainants, and witnesses interviewed in the investigation. In camera review was also required to protect attorney-client privileged records. The privacy interests of those involved in the investigation would be infringed by disclosure of the records to Keene Publishing’s counsel. Moreover, Keene Publishing has not cited any cases that provide it with the right to review attorney-client privileged records to determine whether the privilege applies. Holding a closed hearing with only counsel present or with only counsel and all parties present would not protect the privacy interests of the Intervenor, complainants or witnesses who participated in the investigation or the District’s attorney-client communications. Keene Publishing was not left in a vacuum about what the in camera records were or the exemptions asserted by the District. The trial court’s in camera review process provided Keene Publishing with a Vaughn Index and memorandum of law with detailed information about the records and claimed exemptions without destroying the District’s need to protect the confidentiality of the records. See State v. Gagne, 136 N.H. 101, 105 (1992). The trial court after its in camera review provided Keene Publishing with even more information: the in camera records with the names of and the names of nonparties and identifying information about them redacted. The redacted records

.

The in camera records also included documents that the District asserted were exempt from disclosure under RSA 91-A:5, XII as records protected by the attorney-client privilege or the work- product doctrine. The trial court correctly determined that counsel for Keene Publishing and the Intervenor should not have access to privileged communications between the District and its counsel. Rather, the trial court properly reviewed the attorney-client communications in camera without the presence of counsel or the parties.

Contrary to Keene Publishing’s argument, Petition of Keene Sentinel, 136 N.H. 121 (1992) does not require the presence of all counsel for the trial court’s in camera review of a Right-to-Know Law request for exempt documents. Petition of Keene Sentinel was a divorce case in which the Superior Court sealed the Court’s own file. Id. at 124. The New Hampshire Supreme Court set forth a process for when a member of the public or the media seeks access to a sealed court record. Id. at 130. That process is initiated with a petition for access to court records. Id. This case does not involve a request for access to sealed court records. Rather, it is a Right-to- Know Law request for access to the District’s records. The District was required to submit its records to the trial court so the trial court could determine whether the statutory exemptions asserted by the District prohibited disclosure. The District’s required submission of its records to the trial court does not transform those records into court records within the scope of Petition of Keene Sentinel. Id. The trial court records in this case are accessible to the public except for the redacted information within the scope of the protective orders.

The in camera records included

. Opening Brief, April 2, 2024 Order, p. 45. The District’s Vaughn Index described the documents and for each document listed the exemptions that applied.

For the documents that the District asserted were exempt from disclosure under one of the categories in RSA 91-A:5, IV, the trial court first determined whether the document was in one of the categories asserted and then applied the three-part balancing test to determine whether the public interest in disclosure of the document outweighed the privacy interest in nondisclosure.

A two-part analysis is used to determine whether a record is exempt from disclosure as a personnel record under RSA 91-A:5, IV. The court must determine: “(1) whether the material can be considered a ‘personnel file’ or part of a ‘personnel file’; and (2) whether disclosure of the material would constitute an invasion of privacy.” Seacoast Newspapers v. City of Portsmouth, 173 N.H.

325, 341 (2020) quoting Reid v. N.H. Attorney General, 169 N.H. 509, 527 (2016). “[R]ecords documenting the history or performance of a particular employee fall within the exemption for personnel files.” Id. at 340 (citations omitted). Keene Publishing contends that only two documents in the 389 pages of in camera documents are a “personnel file” under Lab 802.08:. Opening Brief, p. 25. Keene Publishing also contends that the records cannot be personnel records because

. Opening Brief, p. 26. The trial court found that the documents were personnel records because they are records of

Opening Brief, pp. 50-51.

The Department of Labor’s regulations, Lab 802.08, define personnel records broadly as “records created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports and performance assessments, whether maintained in one or more locations...” (emphasis added).

The records sought pertain to the Intervenor and the District continued to maintain the records . Personnel files can be maintained in more than on location.

Keene Publishing argues that are not personnel records. Keene Publishing relies upon Pivero v. Largy, 143 N.H. 187 (1998) to support that claim. The trial court thoroughly analyzed and rejected that argument and found that Keene Publishing’s reliance on Pivero was misplaced because:

Except for its reference to Fenniman in dicta, however, Pivero contains no analysis relevant to the application of the Right-to-Know Law—rather, Pivero stands solely for the proposition that an employee is not entitled to access to an investigative record under RSA 275:56 prior to the initiation of a disciplinary process. Even assuming that Keene Publishing is correct in asserting that no, the Court finds no basis in Pivero to support a ruling that, here under RSA 91-A:5, Keene Publishing is entitled to access to material that Pivero denied to the employee in the same circumstance and under the same principle of law. Opening Brief, p. 51.

The trial court found that the records at issue are confidential by applying the test established by this Court. Opening Brief, p. 52. Specifically, “[t]o establish that information is sufficiently ‘confidential’ to justify nondisclosure, the party resisting disclosure must prove that disclosure is likely: (1) to impair the government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Union Leader Corp. v. Town of Salem, 173 N.H. 345, 355 (2020) (citations omitted) (emphasis added).

Keene Publishing claims the records are not confidential because there are no facts in the record to support the trial court’s conclusion that public disclosure is likely to impair the District’s ability to obtain information in the future and likely to cause substantial harm to the competitive position of the person from whom the information was obtained. 6 However, there is ample evidence in the record to support the trial court’s finding. The records include . Appendix II, pp. 3, 7, 8, 210, 215-216. That information includes

Appendix II, pp. 3, 7, 8, 45, 210, 211, 212, 213, 214, 215, 216. The documents include

. Opening Brief, p. 53. The records also demonstrate . Appendix II, pp. 8-9, 10-11, 18, 20, 45, 46, 47, 210, 211, 214, 217-218. Based on the evidence, the trial court found that the will intensify are subject to disclosure under the Right-to- Know Law. Opening Brief, p. 52. Based on the evidence, the trial court also found that would impair the District’s ability to obtain necessary information in future investigations. Id. Keene Publishing contends that in Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 555 (2002), this Court rejected the argument that disclosure of interviews would compromise the integrity of future interviews. Opening Brief, p. 29. Goode involved a publicly released audit of the New Hampshire Casualty Loss Program which referenced interviews with governmental agencies. The interviews, however, were not disclosed to the public. The trial court found that the interview materials were exempt as confidential records and the governmental interest in nondisclosure outweighed the public interest in disclosure. Id. at 553. This Court rejected the argument that disclosure of interviews might make interviewees hesitant to provide full and candid responses if released to the public. Id. at 556. Goode does not apply because in this case the investigation report was not disclosed to the public,

, and significant privacy interests are at stake.

Redacting employees’ names is not sufficient to protect the employees because their identities can be determined by individuals familiar with the District and its staff. Moreover, redacting names does not protect the confidentiality of the employees’

Keene Publishing contends that the records are not confidential because the District’s Sexual Harassment Policy (ACAB-R) “already notifies potential complainants that their privacy rights are determined in accordance with applicable state and federal law.” Opening Brief, p. 28. That statement is not a waiver of any privacy rights. Rather, it merely recites that other laws will determine privacy rights. Here, that law is the Right-to-Know Law which recognizes privacy rights in the RSA 91-A:5, IV exemptions.

The three-step balancing test to determine whether the disclosure of public records constitutes an invasion of privacy applies to all categories of records listed in RSA 91-A:5, IV. Provenza, 175 N.H. 121 at 130 (citation omitted). The balancing test requires:

First, the court evaluates whether there is a privacy interest that would be invaded by the disclosures. Second, the court assesses the public interest in disclosure. Third, the court balances the public interest in disclosure against the government’s interest in nondisclosure and the individual’s interest in nondisclosure. Provenza, 175 N.H. at 130 (citations omitted).

The trial court found that the Intervenor had a privacy interest in the records requested. Opening Brief, p. 53. The trial court properly applied Reid, 169 N.H. at 530, in which this Court “has recognized an individual’s strong privacy interest where the disclosure of information could subject the individual to ‘stigma, embarrassment, and reputational injury’ or ‘harassment, disgrace, loss of employment or friends.’” Opening Brief, p. 53. Not only does the Intervenor have privacy interests, , the complainants, and witnesses have privacy interests. The records include . Id. As the trial court found, the context of statements attributed to the Intervenor would be missing and misunderstood to Intervenor’s detriment. Id.

The complainants and witnesses who cooperated with the District’s also have privacy interests at stake. Reid, 169 N.H. at 529 (citation and quotations omitted). Witnesses and co-workers have legitimate privacy interests in the nondisclosure of their identities, information that could identify them, and in keeping their participation in an investigation confidential. Id. (citation and quotations omitted). Complainants also have a privacy interest in not disclosing . Reid, 169 N.H. at 531. The employees involved in the investigation also have strong privacy interests in keeping confidential. Opening Brief, p. 54. There is also a strong public interest in protecting the privacy of persons who have cooperated with . Reid, 169 N.H. at 529 (citation and quotations omitted). As the trial court found, “Given the size of the institution and the relatively small number of the District’s employees, it is unlikely the privacy of these parties can be protected by a piecemeal redaction of their names.” Opening Brief, p. 54.

The District also has an interest in protecting the personnel and other confidential records of its employees, particularly when they have asserted their privacy rights. The District’s interest in the privacy of the requested records “overlaps with the strong public interest in protecting the privacy of people who have cooperated with internal investigations.” Opening Brief, p. 54. When the Petition was filed, District counsel contacted NEA-NH, the representative of the complainants and witnesses, to determine if the District could release the records. Opening Brief, p. 54. NEA-NH did not consent to the release of any of the records of its members and has intervened in this case for one of its members to prevent the disclosure of the requested records. Id.

The public interest in disclosure and the strength of that public interest depend in part upon the rank of the official being investigated and the seriousness of the alleged misconduct. Reid, 169 N.H. at 532. The public interest in disclosure also depends upon whether the information relates to a government employee while performing his official duties and interacting with a member of the public. Provenza, 175 N.H. at 130. The Intervenor is not a high ranking employee in the District or SAU. The alleged misconduct did not involve . The alleged misconduct is Rather, the allegations

. Opening Brief, p. 57. The public does not need to know about an to inform it about the conduct and the activities of their government. Keene Publishing contends that the investigation involved the failure of the District to act on.

Opening Brief, p. 56. Therefore, there is a strong public interest in disclosure. However, as the trial court stated “the record here does not bear out that assertion.” Id.

The trial court properly found that the privacy interests of the Intervenor, , complainants, and witnesses “weigh heavily on the balance” and that the balance in favor of nondisclosure was tipped by “the twin interests of the District in safeguarding the confidentiality of information that touches on employees’ and ensuring that complainants and witnesses will continue to participate in internal investigations.” Opening Brief, pp. 57-58.

The trial court found that, as asserted by the District, a number of documents were clearly protected by the attorney-client privilege and work product doctrine. Opening Brief, December 8, 2023 Order, p. 67. The trial court identified those documents as Redacted Records, pp. 189-193, 194-204, 251-255, 260-268, 280- 281, 284-306, 319-326, 335, 347-356, and 383-389. Id. The trial court appropriately redacted those documents in their entirety. The District’s Vaughn Index (Appendix I, pp. 144-158) described those documents and the parties to the documents as follows:

May 16, 2022 email from School District counsel Attorney Barbara F. Loughman to Superintendent Landry about Attorney Debra Weiss Ford’s review of complainant’s response to evidence and the responses;

Redacted Records, pp. 194-204 May 18, 2022 email from Superintendent Landry to Attorney Barbara F. Loughman with documents from investigation;

Redacted Records, pp. 251-255 June 2, 2022 email from Attorney Barbara F.

Loughman to Superintendent Landry about investigation process;

June 3, 2022 email exchange between Attorney Barbara F. Loughman and Chris Young about email received by Chris Young from Meg Cyr, representative of a complainant, about the investigation process;

Redacted Records, pp. 260-268 June 6, 2022 email from Gail Rowe to Attorney Barbara F. Loughman with draft decision;

June 6, 2022 email from Chris Young to Attorney Barbara F. Loughman requesting advice on responding to an email from Karen Ladd about investigation process;

Redacted Records, pp. 280-281 June 6, 2022 email from Attorney Barbara F.

Loughman to Chris Young and Gail Rowe, copied to Attorney Debra Weiss Ford about Karen Ladd’s email and investigation process;

Redacted Records, pp. 284-306 June 10, 2022 email exchange between Gail Rowe and Attorney Barbara F. Loughman about investigation process;

June 12, 2022 email from Attorney Barbara F.

Loughman to Gail Rowe and Chris Young with Attorney Loughman’s response to Rachel Hawkinson, the representative of a complainant, about the investigation;

June 13, 2022 email from Chris Young to Gail Rowe and Attorney Barbara F. Loughman with confidential request for information from Meg Cyr, the representative of a complainant; June 14, 2022 email from Gail Rowe to Attorney Barbara F. Loughman and Chris Young requesting Attorney Loughman’s review of draft decision;

June 14, 2022 email exchange between Attorney Barbara F. Loughman and Gail Rowe with Attorney Loughman’s review of draft decision;

June 16, 2022 email from Chris Young to Attorney Barbara F. Loughman and Superintendent Landry requesting advice about request from complainant’s representative Rachel Hawkinson related to process;

June 17, 2022 email from Chris Young to Attorney Barbara F. Loughman and Superintendent Landry with Chris Young’s response to request to document at pages 303-304;

Redacted Records, pp. 319-326 June 28, 2022 email from Attorney Barbara F.

Loughman to Superintendent Landry with draft document from Karen Ladd;

June 30, 2022 email from Chris Young to Attorney Barbara F. Loughman and Superintendent Landry requesting advice in responding to complainant’s email;

Redacted Record, p. 335 July 5, 2022 email from Superintendent Landry to Attorney Barbara F. Loughman with answers to Karen Ladd’s questions; Redacted Records, pp. 347-356 July 5, 2022 email exchange between Attorney Barbara F. Loughman and Superintendent Landry about Karen Ladd’s questions;

July 5, 2022 email from Attorney Barbara F.

Loughman to Superintendent Landry about Karen Ladd’s question;

Redacted Records, pp. 383-389 July 13, 2022 email exchange between Attorney Barbara F. Loughman and Superintendent Landry about appeal decision;

July 14, 2022 email from Superintendent Landry to Attorney Barbara F. Loughman about appeal decision; and

July 14, 2022 email exchange between Attorney Barbara F. Loughman and Superintendent Landry about appeal decision.

Superintendent Landry was the executive officer of the District. Ed 302.01(a)(1). Chris Young was the District’s Title IX Coordinator. Appendix I, Vaughn Index, p. 147. Gail Rowe was the District’s Title IX decision maker. Id. at 148. The documents that the trial court found were exempt from disclosure were emails from the District’s Superintendent, Title IX Coordinator, and Title IX decision maker requesting legal advice or emails from the District’s counsel providing the legal advice to those individuals. The trial court correctly found that the records of communications between the District and its counsel were “clearly protected by attorney-client privilege and/or work product doctrine.” Opening Brief, p. 46. The Vaughn Index identified the parties to communications with District counsel with a description of the communication that provided Keene Publishing with sufficient information to determine whether the attorney-client privilege applied without reviewing attorney-client privileged documents.

The classic articulation of the [attorney-client] privilege is as follows: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communication relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser unless the protection is waived by the client or his legal representatives. Professional Firefighters of New Hampshire v. N.H. Local Gov’t Ctr., 163 N.H. 613, 615 (2012) quoting Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966) (citing 8

RSA 91-A:5, XII exempts from public disclosure “Records protected under the attorney-client privilege or the attorney work product doctrine.” Prior to enactment of that specific exemption attorney-client communications were analyzed as confidential information under RSA 91-A:5, IV and subject to a balancing test. Michaud v. Town of Campton Police Department, 176 N.H. 542, 547 (2024). As the Michaud Court noted, the Legislature subsequently amended RSA 91-A:5 to add a specific exemption for records protected by the attorney-client privilege or work product doctrine. Id. at 548, n. 1, citing RSA 91-A:5, XII (2023); Laws 2021, 163:2. RSA 91-A:5, XII is not subject to a balancing test. Keene Publishing does not cite any case in support of its assertion that the balancing test applies to the attorney-client privilege exemption in RSA 91-A:5, XII. As the trial court stated, “Keene Publishing offers no law, nor is the Court aware of any support for such an assertion.” Opening Brief, p. 47. When asked by the trial court to cite cases to support its claim, Keene Publishing responded “[a]ll of them.” Id. at n. 5. The trial court properly rejected Keene Publishing’s claim that the balancing test applied to the attorney-client privilege. As the trial court stated,

A determination that the privilege or doctrine applies, by its nature, establishes a government interest in nondisclosure weighty enough to have moved the legislature to enumerate a specific exemption for such records in the Right-to-Know Law. Absent established precedent to the contrary, and given the clear legislative intent expressed in RSA 91-A:5, XII, the Court declines to add a requirement to the statute that the legislature did not see fit to create. See Sivalingam v. Newton, 174 N.H. 489, 494 (2021) (holding that courts interpret 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). Opening Brief, p. 47.

New Hampshire Supreme Court cases support the trial court’s finding that the balancing test does not apply to all exemptions. For instance, in Brent v. Paquette, 132 N.H. 415 (1989), the New Hampshire Supreme Court considered whether records were exempt from disclosure under RSA 91-A:5, III as personal school records. The Court did not apply the balancing test to that exemption. Id. at 426. The Court did, however, apply the balancing test to the RSA 91-A:5, IV exemption. Id. at 426-427. In ATV Watch v. N.H. Department of Transportation, 161 N.H. 746, 756-761 (2011), the New Hampshire Supreme Court did not apply the balancing test to the exemption in RSA 91-A:5, IX for preliminary drafts or the exemption in RSA 91-A:5, VIII for notes or materials for personal use that do not have an official purpose.

Keene Publishing claims that the trial court was wrong when it did not award attorneys fees because the District did not turn over records of payment to Intervenor under RSA 91-A:4, I-a immediately. Opening Brief, p. 18. The trial court properly denied Keene Publishing’s attorneys fees request.

An award of attorney’s fees under the Right-to-Know Law requires three findings by the trial court: (1) the District violated the Right-To-Know Law; (2) that plaintiff’s lawsuit was necessary to make the information available; and (3) that the defendant knew or should have known that its conduct violated the statute. 38 Endicott Street North v. State Fire Marshall, 163 N.H. 656, 669 (2012); ATV Watch, 161 N.H. at 764.

Keene Publishing’s argument ignores the facts relating to the reporter’s Right-to-Know Law request. Specifically, on August 29, 2022 the reporter requested access to “any and all documents from the Fall Mountain Regional School District related to the resolution of an investigation concerning Richard ‘Rick’ Elliott conducted by the law firm of Jackson Lewis, PC of Portsmouth, New Hampshire in 2022.” Appendix I, p. 11. District counsel responded stating “I understand your request to be for a copy of the report and report file.” Appendix I, p. 13. The District did provide Trisha Nail with a redacted version of the itemized bill from Jackson Lewis, PC. Appendix I, Petition, para. 6, p. 6.

Keene Publishing’s reporter repeated the same August 29, 2022 request in other requests and never informed the District that it’s understanding was wrong and Keene Publishing was seeking other records. To the contrary, the reporter’s emails confirmed that she was requesting the report. Appendix I, p. 15 (October 21, 2022 email that “public interest in disclosure of the report outweighs minimal privacy interest a government employee may have in information about his official conduct.”); Appendix I, pp. 18-19 (December 14, 2022 email “public interest in disclosure of report outweighs what minimal privacy interest a government employee may have in information about his official conduct. To the extent that the report identifies any victims or students, their privacy interests can be protected by redactions, as was the case in Provenza”). The Right-to-Know Law Petition was not limited to the report and report file but seeks “all of the records and information in its possession relating to the investigation of Elliott.” Appendix I, Prayer for Relief, para.

B, p. 9. It was only after the litigation was filed that the District was aware that Keene Publishing’s request was for more than just the report. When it became aware of the broader request, the District provided Keene Publishing with the RSA 91-A:4, I-a statement and the other records which were not exempt from disclosure.

The trial court also properly rejected Keene Publishing’s claim that it is entitled to attorneys fees because the District should have known that the reference in RSA 91-A:4, I-a to records relating to payment included the and other records at issue. Opening Brief, p. 60. As the trial court found the RSA 91-A:4, I-a statement by its own terms satisfied RSA 91-A:4, I-a. Id. at 60-61.

Keene Publishing is not entitled to unfettered access to the District’s internal investigation of or the District’s attorney- client communications. The Right-to-Know Law exemptions in RSA 91- A:5, IV recognize and protect the privacy interests of employees and nonemployees involved or mentioned in the investigation. Their privacy interests outweigh the public interest in access to . Keene Publishing is not entitled to access to the District’s communications with its counsel relating to the investigation.