Mans v. Lebanon School Bd.

• Decision Date: 28 April 1972
• Docket Number: No. 6325,6325
• Citation: 112 N.H. 160,290 A.2d 866
• Parties: Philip W. MANS v. LEBANON SCHOOL BOARD et al.
• Court: New Hampshire Supreme Court

Page 866

290 A.2d 866

112 N.H. 160

Philip W. MANS v. LEBANON SCHOOL BOARD et al.

No. 6325.

Supreme Court of New Hampshire.

April 28, 1972.

Perkins, Perkins & Douglas, Concord (Charles G. Douglas III, Concord, orally), for plaintiff.

Stebbins & Bardley, Hanover (David H. Bradley, Hanover, orally), for defendants.

McLane, Carleton, Graf, Greene & Brown and Jack B. Middleton, Manchester (Jack B. Middleton, Manchester, orally), for New Hampshire Education Ass'n, amicus curiae.

Nighswander, Lord, Martin & KillKelley, and Bradley F. Kidder, Laconia (Bradley F. Kidder, Laconia, by brief), for New Hampshire School Board Ass'n, amicus curiae.

Warren B. Rudman, Atty. Gen., and Richard A. Hampe, Asst. Atty. Gen. (Richard A. Hampe orally), for the State, amicus curiae.

KENISON, Chief Justice.

The issue presented in this case is whether RSA ch. 91-A (supp.), popularly referred to as the right-to-know law (Herron v. Northwood, 111 N.H. 324, 282 A.2d 661 (1971)), entitles plaintiff, a resident taxpayer of Lebanon, to access to the name and salary of each schoolteacher in Lebanon School District. The Lebanon School Board publishes the name of each teacher and the general salary schedule for all teachers, but refuses to disclose individual salaries by name. The published information allows plaintiff to calculate the approximate salary of each; however, plaintiff claims the law entitles him to the salary information without conjecture or approximation.

After a full hearing on the merits, the Superior Court (King, J.), held plaintiff was entitled to the information, because it believed New Hampshire traditionally favored public disclosure over individual sensitivity. The defendants' exceptions were reserved and transferred to this court.

The information plaintiff seeks is part of each teacher's contract with the school board. The issue is therefore governed by RSA 91-A:4 (supp.) and 5 (supp.), Laws 1967, 251:1, permitting freedom of access to public records, which provides: '91-A:4 Minutes and Records Available for Public Inspection. Every citizen during the regular or business hours of all such bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, . . . except as otherwise prohibited by statute or section 5 of this chapter.

'91-A:5(supp.) Exemptions. The records of the following bodies are exempted from the provisions of this chapter: . . . III. Personal school records of pupils. IV. Records pertaining to internal personnel practices, confidential, commercial, or financial information, personnel, medical, welfare, and other files whose disclosure would constitute invasion of privacy.' The legislature gave this statute particularly careful study. Remarks of Senator Bennett, Senate Journal for 1957, at 119. See Senate Journals for 1957, at 107-08, and 1959, at 177-78, 196-202; House Journal for 1963, at 476-78.

The teachers' contracts are public records under section 4, the issue being whether they are exempt under section 5, subsection IV. Subsection IV means that financial information and personnel files and other information necessary to an individual's privacy need not be disclosed. Construed broadly, and without reference to the objectives of the right-to-know law, these provisions would exclude teachers' contracts from disclosure. But such an expansive construction allows the exemption to swallow the rule and is inconsistent with the purposes and objectives of the right-to-know law. RSA ch. 91-A(supp.); see Herron v. Northwood, 111 N.H. 324, 282 A.2d 661 (1971). Additionally, such an expansive construction would justify the criticism that our act, although promising, is 'weak and easily evaded.' Emerson, The System of Freedom of Expression 672 (1970). In determining whether salaries are exempt as financial information or as private information 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. See 5 McQuillin, Municipal Corporations s. 14.14 (3d ed. 1969 rev. vol.); Davis, Administrative Law Treatise s. 3A.22 supp. 1970). The provisions of section 3(supp.) do not clearly provide for withholding from public knowledge decisions finally embodied in records made public under sections 4 (supp.) and 5 (supp.), even though such records result from deliberations conducted in executive sessions as permitted by section 3(supp.).

One consideration not relevant to our inquiry is the plaintiff's lack of a sufficient personal reason for seeking the information. At common law a court might deny access to information if it thought plaintiff's reasons whimsical or antisocial. MacEwan v. Holm, 226 Or. 27, 35, 359 P.2d 413, 417 (1961); State v. Harrison, 130 W.Va. 246, 43 S.E.2d 214 (1947); Nowack v. Fuller, 243 Mich. 200, 219 N.W. 749 (1928). Our statute grants rights to 'every citizen.' RSA 91-A:4 (supp.). Plaintiff's rights under section 4 do not depend upon his demonstrating a need for the information.

The exemption provisions of our right-to-know law, RSA 91-A:5(IV) (supp.), are similar to the federal Freedom of Information Act, 5 U.S.C.A. 552(b)(2), (4) and (6). There appears to be general agreement that the federal Freedom of Information Act should be resolved 'with a view to providing the utmost information,' also '(t)he exemptions authorizing nondisclosure should be interpreted restrictively.' Recommendation No. 24 of the Administrative Conf. of the United States-Principles and Guidelines for Implementation of the Freedom of Information Act, in Administrative Conf. of the United State, Report 1970-1971, at 51-52 (1971). See also Gianella, Agency Procedures Implementing the Freedom of Information Act: A Proposal for Uniform Regulations, 23 Ad.L.Rev. 217, 265 (1971).

There is no doubt that teachers and the teaching profession have a sincere conviction that public access to their individual salaries would be embarrassing to them and not in the best interest of the efficient management of school affairs. However it should be noted that for many years in this state salaries of public officials and employees, state and municipal, have been commonly published by statute (RSA ch. 94, Laws 1972, 60:46), or made available to the public or disclosed voluntarily without significant damage to individual dignity or the efficient management of the state system. Since 1951 certain county and municipal officers have been required to report the income and expenses of their office. RSA 30:5, 5-a, 6. At least since 1886 the city of Nashua has published the name and individual salary of its teachers. See 118th Annual Report of the City of Nashua, New Hampshire for the Year 1970, at 230-46. Approximately one-third of the school districts in the state have published or made available to the public the individual salaries of the teachers in their respective communities. While the actions of these school districts are not a definitive construction of our state laws, they do indicate that the educational climate is not hostile to the public's right-to-know where and how their tax dollars are spent.

Sanchez v. Board of Regents, 82 N.M. 672, 486 P.2d 608 (1971), held that under New Mexico's right-to-know law there was no right to access to proposed teachers' contracts, but said there 'obviously' would be access to completed contracts. Board of School Directors of City of Milwaukee v. Wisconsin Employment Relations Comm'n, 42 Wis.2d 637, 168 N.W.2d 92 (1969), recognized that the Wisconsin right-to-know law gave the general public access to names, addresses, and salaries of all municipal employees including teachers. See Deputy Sheriffs Mutual Aid Ass'n of Salt Lake County v. Salt Lake County Deputy Sheriffs Merit System Comm'n, 24 Utah 2d 110, 46 P.2d 836 (1970) (statute grants public access to merit ratings of sheriffs). See also Cross, The People's Right to Know, 3-13, 65 (1953).

The argument can be made that the plaintiff or any other taxpayer can obtain all the information he needs as a voter and taxpayer from the general salary schedules. If this is true, the fact still remains that the voters of a school district are the final appropriating authority and the appropriations for school purposes must be made by them....