Grafton Cnty. Attorney's Office v. Canner

• Decision Date: 23 August 2016
• Docket Number: No. 2015-0536,2015-0536
• Parties: GRAFTON COUNTY ATTORNEY'S OFFICE v. Elizabeth CANNER & a.
• Court: New Hampshire Supreme Court

169 N.H. 319

147 A.3d 410

GRAFTON COUNTY ATTORNEY'S OFFICE

v.Elizabeth CANNER & a.

No. 2015-0536

Supreme Court of New Hampshire.

Argued: March 3, 2016

Opinion Issued: August 23, 2016

Lara J. Saffo, county attorney, on the brief, for the Grafton County Attorney's Office.

Prince Lobel Tye LLP, of Boston, Massachusetts (Robert A. Bertsche on the brief and orally), for Elizabeth Canner.

DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler on the brief, and Cabot R. Teachout orally), for John Doe.

Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer on the memorandum of law), for Town of Hanover/Hanover Police Department.

BASSETT, J.

John Doe appeals an order of the Superior Court (MacLeod, J.) ruling in favor of Elizabeth Canner. Canner requested, under the New Hampshire Right-to-Know Law, RSA chapter 91-A (2013 & Supp. 2015), access to records relating to Doe's arrest and prosecution. Prior to the filing of Canner's Right-to-Know requests, Doe had filed a petition for annulment under RSA 651:5 (2016). While Canner's request was pending, Doe's annulment petition was granted. The trial court concluded that, notwithstanding the fact that Doe's petition for annulment had been granted, records relating to Doe's arrest and prosecution are not categorically exempt from public inspection under the Right-to-Know Law. We affirm and remand for further proceedings consistent with this opinion.

This case presents an issue of first impression in New Hampshire: Whether records maintained by arresting and prosecuting agencies pertaining to an annulled arrest and the related prosecution are categorically exempt from public inspection under the Right-to-Know Law. Resolution of this case requires us to interpret several statutory provisions, including certain provisions of the Right-to-Know Law. "The ordinary rules of statutory construction apply to our review of the Right-to-Know Law." CaremarkPCS Health v. N.H. Dep't of Admin. Servs. , 167 N.H. 583, 587, 116 A.3d 1054 (2015) (quotation omitted). Thus, we are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. Id . When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id . We 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. Id . We also interpret a statute in the context of the overall statutory scheme and not in isolation. Id .

"Our 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, 992 A.2d 582 (2010) (quotation and citation omitted); see also N.H. CONST. pt. I, art. 8. "Thus, we construe provisions favoring disclosure broadly, while construing exemptions narrowly." Prof'l Firefighters of N.H. , 159 N.H. at 707, 992 A.2d 582 (quotation omitted). The party arguing for nondisclosure has the burden of proof. See id .

RSA 91–A:4, I (2013), in relevant part, states:

Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, ... except as otherwise prohibited by statute or RSA 91–A:5.

(Emphasis added.) Doe argues that the records relating to his arrest and prosecution are exempt from public inspection under RSA 91–A:4, I, because the annulment statute, RSA 651:5, prohibits their disclosure.

RSA 651:5, I, provides that:

[T]he record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this section if in the opinion of the court, the annulment will assist in the petitioner's rehabilitation and will be consistent with the public welfare.

Because the purpose of annulment is to reduce the collateral consequences of a criminal arrest and "to afford an offender ... a chance to start anew without this stigma in his records," State v. Roe , 118 N.H. 690, 692–93, 393 A.2d 553 (1978) (quotation omitted), the statute further provides that, "[u]pon entry of an order of annulment ... [t]he person whose record is annulled shall be treated in all respects as if he or she had never been arrested, convicted or sentenced," RSA 651:5, X(a).

The record reflects the following pertinent facts. In 2013, "John Doe" was indicted by a Grafton County grand jury on multiple felony counts. The Grafton County Attorney's Office prosecuted Doe. Doe was acquitted by a jury on all charges. In April 2014, Doe filed a petition in the Superior Court pursuant to RSA 651:5 to annul the records of his arrest and prosecution. In July 2014, the court granted Doe's petition.

In June 2014, while Doe's petition for annulment was pending, Canner submitted Right-to-Know requests to the county attorney's office and the Hanover Police Department. She sought "any and all documents and information related [to Doe's] [t]rial," as well as documents, audio, and video related to the Hanover Police Department's initial investigation into the allegations against Doe. In response, the county attorney filed a petition for declaratory judgment in the Superior Court seeking a ruling as to whether: (1) given Doe's then-pending petition for annulment, the records requested under the Right-to-Know Law would be exempt from public inspection if the petition were granted; and (2) based upon privacy concerns related to Doe and other persons involved in the case, many of the requested materials would be exempt from public inspection under the Right-to-Know Law. The county attorney noted that neither the annulment statute nor the Right-to-Know Law provided guidance as to "whether the prosecutorial file is available pursuant to [a] Right to Know request after annulment." The Hanover Police Department joined in the county attorney's action. Canner filed an answer and a counterclaim for declaratory judgment.

The trial court bifurcated the proceedings before it, and both the county attorney's office and Canner filed cross-motions for partial summary judgment on the threshold issue of whether, after an annulment has been granted, records pertaining to an annulled arrest and its prosecution maintained by arresting and prosecuting agencies are exempt from public inspection under the Right-to-Know Law. The trial court concluded that " RSA 651:5 does not clearly and entirely" exempt records relating to an annulled arrest and the related prosecution from disclosure under the Right-to-Know Law, observing that " RSA 651:5, X(a) treats the person, not the [annulled] record, as if he had never been arrested, and therefore the record is not necessarily ‘enshroud[ed] ... with a cloak of secrecy.’ "

The trial court provided two primary reasons for its conclusion. First, it noted that RSA 651:5 "treats prosecutor and police records differently than it treats court records or records in the state [police] criminal records unit." It also observed that, although the annulment statute provides that "court records must be sealed" and that the state police criminal records unit must "remove the annulled criminal record" from its files, "prosecuting and arresting agencies must only clearly identify on the records that the arrest is annulled." Second, the trial court concluded that RSA 651:5, XI(b) does not set forth the only circumstances under which law enforcement officials are permitted to use annulled records but, rather, it provides a "non-exclusive list clarifying law enforcement's rights to disclose information in those circumstances." After observing that its ruling did "not bear any weight on whether an RSA 91–A:5 exemption" might "preclude disclosure [of] John Doe's annulled record on privacy grounds," see RSA 91–A:5, IV (2013) (exempting from disclosure "confidential ... information" and "files whose disclosure would constitute invasion of privacy"), the trial court ruled that records maintained by arresting and prosecuting agencies relating to an annulled arrest and subsequent prosecution are not categorically exempt from public inspection under the Right-to-Know Law. After Doe's motion for reconsideration was denied, he filed this appeal.

"In reviewing the trial court's rulings on cross-motions for summary judgment, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law." CaremarkPCS Health , 167 N.H. at 586, 116 A.3d 1054 (quotation omitted). We review the trial court's application of the law to the facts de novo. Id .

Because the trial court bifurcated the proceedings before it, the narrow question before us is whether records pertaining to Doe's annulled arrest and the related prosecution maintained by arresting and prosecuting agencies are categorically exempt from public inspection pursuant to RSA 91–A:4, I. This is a question of law, which we review de novo. See id . at 586–87, 116 A.3d 1054. Because Doe argues for nondisclosure, he has the burden of demonstrating that the records are exempt from public inspection. See id. at 587, 116 A.3d 1054.

Doe argues that RSA 651:5, X(a) creates "an express statutory exemption" from the Right-to-Know Law for "arrest and prosecution records that have been annulled by court order." He also asserts that allowing public access to these records would contravene the plain language of the annulment statute and undermine the...