Hounsell v. N. Conway Water Precinct

• Decision Date: 01 August 2006
• Docket Number: No. 2005–505.,2005–505.
• Citation: 903 A.2d 987,154 N.H. 1
• Court: New Hampshire Supreme Court
• Parties: Mark HOUNSELL and another. v. NORTH CONWAY WATER PRECINCT.

154 N.H. 1

903 A.2d 987

Mark HOUNSELL and another.

v.NORTH CONWAY WATER PRECINCT.

No. 2005–505.

Supreme Court of New Hampshire.

Argued: March 9, 2006.

Opinion Issued: Aug. 1, 2006.

Upton & Hatfield, LLP, of North Conway (Robert Upton, II on the brief and orally), for the petitioners.

Wadleigh, Starr & Peters, P.L.L.C, of Manchester (Kathleen C. Peahl on the brief and orally), for the respondent.

DALIANIS, J.

The petitioners, Mark Hounsell and Joseph Smith, appeal an order of the Superior Court(O'Neill, J.) denying their request for disclosure of certain documents under the control of the respondent, North Conway Water Precinct (precinct).We affirm.

I.Background

The following facts were found by the trial court or appear on the record.In June 2003, the precinct, which is governed by a three-member board of commissioners, retained Municipal Resources, Inc.(MRI) to investigate the alleged mismanagement of the precinct.The precinct disclosed the resulting MRI report to the public.In November 2003, the New Hampshire Attorney General initiated an investigation concerning allegations of criminal behavior described in the MRI report to determine "whether the conduct of any public official or employee of [the precinct] warranted the commencement of criminal charges for theft, public corruption, or witness tampering."

In July 2004, an employee of the precinct alleged that he had been threatened and harassed by a co-worker, petitioner Smith.The precinct, through its legal counsel, Andrea Johnstone, retained Jack Hunt and John Alfano to investigate the complaint of harassment.Hunt and Alfano conducted interviews of each precinct employee as part of their investigation.During the investigation, the precinct placed Smith on paid leave.While some employees were reluctant to participate in the investigation, Commissioner James Umberger advised them and their union representative, Brian Mitchell, that there would be no retaliation for their participation, and he encouraged them to tell Hunt and Alfano "whatever was on their minds."The precinct permitted Mitchell to be present during the interviews.It also permitted petitioner Hounsell and another individual, Ted Sares, neither of whom were employees or agents of the precinct, to be present during some of the interviews at the request of the employees.

Following the conclusion of the interviews, Hunt and Alfano prepared a report in which they summarized the investigation and made findings and recommendations (Hunt–Alfano report).The record does not indicate the date of the report.Johnstone instructed them to release the report only to her; she, in turn, provided the report to the commissioners.Without the knowledge or authorization of the commissioners, and contrary to Johnstone's instructions, Alfano permitted Mitchell to review a copy of the Hunt–Alfano report.The precinct took no disciplinary action against Smith or any other employee as a result of the investigation and the Hunt–Alfano report, and the commissioners subsequently issued a press release reporting that decision.

On February 23, 2005, the attorney general released her report to the public, concluding that there was insufficient evidence to commence a criminal prosecution.

The petitioners repeatedly requested a copy of the Hunt–Alfano report.On April 7, 2005, the precinct issued an official denial of their request, stating that the report was a "confidential personnel document," exempt from disclosure under RSA chapter 91–A.On April 25, 2005, the petitioners filed in the trial court a petition seeking access to the Hunt–Alfano report, all notes and transcripts recorded in connection with the report, and all minutes of non-public sessions at which the commissioners discussed the report, as well as an award of costs and attorney's fees pursuant to RSA 91–A:8.After a hearing, at which the parties made offers of proof, the trial court denied the petition.

On appeal, the petitioners contend that the trial court erred by concluding that the report was exempt from disclosure under RSA 91–A:5, IV and by refusing to award attorney's fees under RSA 91–A:8.They also argue that the precinct was "estopped" from asserting the RSA 91–A:5, IV exemption.

II.Right–to–Know Law

We first examine whether the trial court erred by concluding that the Hunt–Alfano report was exempt from public disclosure under RSA chapter 91–A, the Right–to–Know Law.Because the interpretation of a statute is ultimately a question of law for this court, we review the trial court's interpretationde novo.Prof'l Firefighters of N.H. v. HealthTrust,151 N.H. 501, 503, 861 A.2d 789(2004).The Right–to–Know Law provides that "[e]very citizen ... has the right to inspect all public records, including minutes of meetings of the bodies or agencies ... except as otherwise prohibited by statute or RSA 91–A:5."RSA 91–A:4, I (Supp.2005).It is undisputed that the precinct is a public body subject to the Right–to–Know Law.Among other things, however, RSA 91–A:5, IV (Supp.2005) exempts from disclosure "[r]ecords pertaining to internal personnel practices."We have recognized that the traditional balancing test employed in Right–to–Know cases, see, e.g., Chambers v. Gregg,135 N.H. 478, 481, 606 A.2d 811(1992), is not necessary where "the legislature has plainly made its own determination that certain documents are categorically exempt."Union Leader Corp. v. Fenniman,136 N.H. 624, 627, 620 A.2d 1039(1993).However, we generally interpret the exemptions in RSA chapter 91–A restrictively to further the purposes of the Right–to–Know Law.Id. at 626, 620 A.2d 1039.

The trial court concluded that the investigation that generated the Hunt–Alfano report concerned an "internal personnel practice," and, thus, exempted the report from disclosure under RSA 91–A:5, IV.The trial court, relying upon Fenniman, reasoned that "[h]ad Smith not been cleared as a result of the investigation, the [precinct] would likely have taken disciplinary action against him."In Fenniman,we reviewed whether the trial court properly granted the Union Leader's petition, under RSA chapter 91–A, for access to certain investigatory documents under the control of the Dover Police Department.Id. at 625, 620 A.2d 1039.The department had previously released to the newspaper its "Internal Investigation Disposition Forms," detailing general facts underlying the internal investigation of whether a department lieutenant made harassing phone calls.Seeid. at 625–26, 620 A.2d 1039.The newspaper, however, sought additional access to the department's "internal police investigatory files," which included the department's memoranda and other records compiled during the internal investigation.Id. at 626, 620 A.2d 1039.We concluded that such files pertained to "internal personnel practices" because "they document[ed] procedures leading up to internal personnel discipline, a quintessential example of an internal personnel practice."As such, we held that the files were exempt from disclosure pursuant to RSA 91–A:5, IV.Id. at 627, 620 A.2d 1039.

We agree with the trial court that the Hunt–Alfano report concerned "internal personnel practices."It is undisputed that the precinct retained Hunt and Alfano to investigate a complaint that Smith had threatened and harassed a co-worker.During the investigation, the precinct placed Smith on paid leave, and the investigation could have resulted in disciplinary action.Thus, as in Fenniman, the Hunt–Alfano report, which was generated in the course of an investigation of claimed employee misconduct, was a record pertaining to "internal personnel practices."

The petitioners argue that this case is distinguishable from Fenniman upon several grounds.Specifically, they contend that in Fenniman, the "public's right-to-know" was already largely satisfied by the prior release of "Internal Investigation Disposition Forms," where here, the precinct conveyed little information in its press release.We did not suggest in Fenniman, however, that the prior release of some information concerning the investigation affected our decision to reverse the trial court's disclosure of the investigatory files.Furthermore, with the exception of the description of the nature of the complaint, the information set forth in the precinct's press release was similar to the information contained in the disposition forms in Fenniman,136 N.H. at 625–26, 620 A.2d 1039, including the name of the charged employee and the outcome of the investigation.

In addition, the petitioners argue that the Hunt–Alfano report was not an "internal police investigatory file," as in Fenniman, where exemption was premised upon "encourag[ing] thorough investigation and discipline of dishonest or abusive police officers."Id. at 627, 620 A.2d 1039(quotation omitted).Although the petitioners are factually correct, this distinction has little relevance to the issue before us.Nothing in the plain language of RSA 91–A:5, IV suggests that the legislature intended to exempt "records pertaining to internal personnel...