Lodge v. Knowlton

• Decision Date: 18 September 1978
• Docket Number: No. 78-097,78-097
• Citation: 391 A.2d 893,118 N.H. 574
• Parties: Bruce LODGE v. Harold KNOWLTON, Colonel, New Hampshire State Police.
• Court: New Hampshire Supreme Court

Page 893

391 A.2d 893

118 N.H. 574

Bruce LODGE v.Harold KNOWLTON, Colonel, New Hampshire State Police.

No. 78-097.

Supreme Court of New Hampshire.

Sept. 18, 1978.

William P. Shea, Sanbornville, by brief and orally, for plaintiff.

Thomas D. Rath, Atty. Gen. (Anne E. Cagwin, Concord, atty., orally), for defendant.

PER CURIAM.

This is an appeal under the Right to Know Law, from a denial of public access to a State police investigative file.The plaintiff is a resident of the town of Wakefield who seeks to review the file prepared by the State police regarding a car accident involving a town police cruiser under the control of its Chief of Police, Michael Senecal.In his petition the plaintiff asserted that the department of safety would release the accident and investigative report to the town selectmen if they so requested it and that the file was a public record subject to disclosure under RSA 91-A:4 and 5.The petition was denied by Cann, J., who transferred plaintiff's exception.

Initially the defendant asserts that the division of State police in the department of safety is not an agency covered by the Right to Know Law.The act includes "(a)ny board or commission of any state agency or authority."RSA 91-A:1-a III (Supp.1977).In construing this phrase we must be mindful of the recently enacted preamble to the law which states that its purpose "is to ensure . . . the greatest possible public access to the actions . . . and records of All public bodies . . . ."RSA 91-A:1 (Supp.1977)(emphasis added).This law now has constitutional dimension in our Bill of Rights because of the addition to pt. I., art. 8, in 1976, providing that "the public's right of access to governmental proceedings and records shall not be unreasonably restricted."In 1974 the Governor issued Executive OrderNo. 74-1 stressing the public's access to records "of each department, agency, board and commission within the state."Finally, the act itself explicitly exempts only one executive branch agency, the department of employment security.RSA 91-A:6.In 1975 the house of representatives passed, but the senate rejected, an amendment to chapter 91-A that would have lifted this unique exemption.The report of the house judiciary committee said that, if enacted, the amendment"would make the state right to know law apply to the department of employment security the Same as other departments."N.H.H.R.Jour. 600(1975), emphasis added.We conclude that with the exception of the department of employment security all State executive branch agencies and departments were meant to be and are included within the provisions of RSA ch. 91-A.

The more troublesome question is the definition of "public record" as it appears in RSA 91-A:4, 5.In a 1974 memorandum concerning the Right to Know Law, the attorney general"stressed that there are records such as police investigation records . . . (that are) not subject to public inspection."1 Executive Bulletin No. 7, at 3(January 22, 1974).The State Security and Privacy Plan also excludes such records from public examination.Governor's Commission on Crime and Delinquency Security and Privacy Plan 5, 6 (1976).

In determining what is or is not a public record we have said with regard to salaries of local teachers, that "the benefits of disclosure to the public are to be balanced against the benefits of nondisclosure to the administration of the school system and to the teachers."Mans v. Lebanon School Board, 112 N.H. 160, 162, 290 A.2d 866, 867(1972).See alsoMenge v. City of Manchester, 113 N.H. 533, 311 A.2d 116(1973).

At the federal level the Freedom of Information Act now exempts

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of privacy, (D) disclose the identity of a confidential source, and in the case of a record compiled by a law enforcement authority in the course of a criminal...