Am. Civil Liberties Union of N.H. v. N.H. Div. of State Police

• Docket Number: 2022-0321
• Decision Date: 29 November 2023
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE v. NEW HAMPSHIRE DIVISION OF STATE POLICE
• Court: New Hampshire Supreme Court

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AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE
v.
NEW HAMPSHIRE DIVISION OF STATE POLICE

No. 2022-0321

Supreme Court of New Hampshire, Merrimack

November 29, 2023

Argued: February 14, 2023

American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and Gilles R. Bissonnette orally), for the plaintiff.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor general (Jessica A. King, assistant attorney general, on the brief and orally), for the defendant.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown and Michael G. Eaton on the brief), for Black Lives Matter Manchester, as amicus curiae.

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Malloy & Sullivan, Lawyers Professional Corporation, of Hingham, Massachusetts (Kathleen C. Sullivan and Gregory V. Sullivan on the brief), for Union Leader Corporation and New England First Amendment Coalition, as amici curiae.

OPINION

HICKS, J.

The defendant, the New Hampshire Division of State Police (the Division), appeals an order of the Superior Court (Kissinger, J.) granting the relief sought in a complaint filed by the plaintiff, the American Civil Liberties Union of New Hampshire (ACLU), for access to public records under the Right-to-Know Law. See RSA ch. 91-A (2023). We affirm.

The following facts were recited in the trial court's order or relate the contents of documents in the record. In January 2022, the ACLU filed a Right-to-Know Law complaint against the Division seeking access to records concerning a former state trooper. The complaint alleges that the trooper had been terminated in August 2021 and placed on the exculpatory evidence schedule in September 2021. See Doe v. Attorney General, 175 N.H. 349, 351 n.1 (2022) (describing the exculpatory evidence schedule). It further alleges that the trooper's conduct had given rise to a federal civil rights lawsuit that the Division paid $212,500 to settle on the trooper's behalf.

According to the complaint, the ACLU submitted a Right-to-Know Law request to the Division in August 2021, seeking "[a]ll reports, investigatory files, personnel, and disciplinary records concerning [the former trooper] that relate to any adverse employment action." (Quotation omitted.) The complaint alleges that the Division had "not produced the requested information" and, apparently, "has no intention of doing so in the future." The ACLU filed its complaint seeking the same information.

The Division objected to disclosure, arguing that the requested records are exempt from disclosure under RSA 105:13-b and that their disclosure would constitute an invasion of privacy under RSA 91-A:5, IV. See RSA 105:13-b (2023); RSA 91-A:5, IV. The trial court granted the ACLU's request for disclosure and found the redactions proposed by the ACLU to be appropriate. The court first found that "RSA 105:13-b does not categorically prohibit disclosure of the records at issue in this case under RSA 91-A:4, I." Next, the court conducted the applicable three-step analysis to determine whether disclosure of the requested records would constitute an invasion of privacy under RSA 91-A:5, IV, and concluded that the Division "failed to carry its heavy burden to shift the balance in favor of nondisclosure with respect to the records at issue." See Union Leader Corp. v. Town of Salem, 173 N.H. 345, 355 (2020) (describing the three-step analysis); Reid v. N.H. Attorney Gen., 169 N.H. 509, 527-29 (2016) (explaining the scope of the protected privacy interests and the proper focus of the public interest).

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On appeal, the Division challenges only the trial court's ruling that RSA 105:13-b does not exempt the police personnel files at issue from disclosure pursuant to RSA 91-A:4, I. Accordingly, "[r]esolution of this case requires us to interpret several statutory provisions, including certain provisions of the Right-to-Know Law." Grafton County Attorney's Office v. Canner, 169 N.H. 319, 322 (2016). "The ordinary rules of statutory construction apply to our review of the Right-to-Know Law." Id. (quotation omitted). "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. "We resolve questions regarding the Right-to-Know Law with a view to providing the utmost information in order to best effectuate the law's statutory and constitutional objectives. Finally, we "will consider legislative history only if the statutory language is ambiguous." Reid, 169 N.H. at 522. Because the statutory language at issue here is unambiguous, we reach our interpretation using "the plain meaning of the words used." Id.

The Right-to-Know Law provision at issue is RSA 91-A:4, I, which provides, in relevant part:

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, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected, except as otherwise prohibited by statute or RSA 91-A:5

RSA 91-A:4, I (emphasis added). The Division asserts that "RSA 105:13-b is a statute that 'otherwise prohibit[s]' disclosure of government records pursuant to RSA 91-A:4, I." It contends that such records are therefore "categorically exempt from RSA chapter 91-A." For the reasons that follow, we disagree.

RSA 105:13-b, entitled "Confidentiality of Personnel Files," provides:

I. Exculpatory evidence in a police personnel file of a police officer who is serving as a witness in any criminal case shall be disclosed to the defendant. The duty to disclose exculpatory evidence that should have been disclosed prior to trial under this paragraph is an ongoing duty that extends beyond a finding of guilt.

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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 105:13-b.

We have recognized that RSA 105:13-b is linked to the prosecutor's duty of disclosure under Brady v. Maryland, 373 U.S. 83, 87 (1963), and State v. Laurie, 139 N.H. 325, 330 (1995). See Petition of State of N.H. (State v. Fuchs), 174 N.H. 785, 791 (2022).^[1] In Petition of State (Fuchs), we concluded that "read as a whole, the statute details the procedure for turning over to a criminal defendant any exculpatory or relevant evidence found in the personnel files of any police officer testifying in the criminal case while maintaining the confidentiality of those files for all other purposes." Petition of State (Fuchs), 174 N.H. at 793.

Relying on Petition of State (Fuchs), the Division argues:

[T]he statute prohibits public disclosure of police personnel files to the maximum extent permitted by the United States and New Hampshire Constitutions. RSA 105:13-b mandates the transfer of certain, otherwise confidential personnel information solely for the critical purpose of delivering to criminal defendants the most robust realization of their constitutional right to exculpatory or relevant evidence in a criminal matter. For all other reasons, the police personnel files remain closed to the public.

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The Division's argument, however, reads into RSA 105:13-b a reference to "public disclosure" that simply is not there. In Petition of State (Fuchs), we emphasized that "[t]he disclosure required under paragraph I is explicitly tied to a particular criminal defendant in a particular criminal case" and that disclosure under paragraph III is similarly "tied to a particular criminal case and is for the explicit purpose of being used as evidence." Id. at 792 (emphases added) (quotation and brackets omitted). Thus, we recognized the limited context in which RSA 105:13-b operates: a specific criminal trial. Indeed, the statute further limits its applicability to a criminal trial in which the police officer whose personnel file is at issue "is serving as a witness" or "serving as a . . . prosecutor." RSA 105:13-b, I, III. The Division's attempt to broaden RSA 105:13-b's application to "public disclosure" violates our canon of statutory construction that we "will not consider what the legislature might have said or add language that the legislature did not see fit to include." Grafton County Attorney's Office, 169 N.H. at 322.

The Division argues, however, that in Provenza v. Town of Canaan, 175 N.H. 121 (2022), we rejected the assertion that "RSA 105:13-b is limited to solely criminal matters and is not applicable in the...