Marceau v. Orange Realty, Inc.

• Decision Date: 02 December 1952
• Citation: 92 A.2d 656,97 N.H. 497
• Parties: MARCEAU v. ORANGE REALTY, Inc.
• Court: New Hampshire Supreme Court

Page 656

92 A.2d 656

97 N.H. 497

MARCEAU v. ORANGE REALTY, Inc.

Supreme Court of New Hampshire.

Dec. 2, 1952.

Chretien & Craig and John W. King, Manchester, for plaintiff, filed no brief.

James M. Riley, Jr., and Winslow H. Osborne, Concord, for Director of Security.

Sheeham, Phinney & Bass and William S. Green, Manchester, for defendant.

DUNCAN, Justice.

Section 9, subd. G of the Unemployment Compensation Act, as amended, requires that employing units keep certain records, which shall be open to inspection and copy by the Commissioner. It also provides that reports may be required from any employing unit with respect to persons employed, where 'necessary for the effective administration' of the Act. The section continues: 'Information thus obtained or obtained from any individual pursuant to the administration of this chapter shall be held confidential and shall not be published or be open to public inspection (other than to employers and public employees in the performance of their public duties) in any manner revealing the individual's or employing unit's identity * * *.' R.L. c. 218, § 9, subd. G, as amended by Laws 1949, c. 185, § 13. Other provisions of the section impose a penalty for violation of the section by department employees; and it is further provided that no action for slander or libel shall be predicated upon information furnished to the Commissioner in connection with the administration of the chapter. Id. The Director takes the position that the records which the defendant's subpoena required to be produced are privileged against disclosure by virtue of the quoted provisions.

The fundamental reason for creating a testimonial privilege in favor of records of the Division would be to encourage disclosure to the Division of information which is needed for the conduct of its functions. VIII Wig. Ev., 3d Ed., § 2377. The Director suggests as an additional basis for the privilege a legislative purpose to relieve the Division of the burden of producing its records for the benefit of private litigants. The issue is one of the intention of the Legislature. It was clearly intended that the records should not be public records by reason of being open to public inspection. It is plain that they may not be published in a way which will disclose the identity of employers or employees. They are also 'confidential,' at least in the sense that they are not to be voluntarily disclosed by the Department or its employees. They are nevertheless expressly thrown open to inspection by employers; and information thus obtained could doubtless be used by employers in resisting claims by employees at common law or under the workmen's compensation law, see § 3, subd. C. It is by no means plain however that use of the records in evidence in judicial proceedings was intended to be forbidden, provided they are not sought as a basis for an action for slander or for libel.

Examination of the statute in its original form satisfies us that the amended statute is not intended to excuse production of the Division records in response to judicial summons. As originally enacted the section in question provided: 'Information secured from employers or employees pursuant to this chapter shall not be open to the public nor be used in any court in any action or proceeding pending therein unless the commissioner or the state is a party * * *.' Laws 1935, c. 99, § 45. In Andrews v. Cacchio, 264 App.Div. 791, 35 N.Y.S.2d 259, a substantially identical provision, 30 McK. Consol. Laws, New York, c. 31, Labor Law, § 537, was held to preclude use of such records in private litigation. The provision against use of the information in court was stricken from the New Hampshire act however by the...