Montenegro v. City of Dover

• Decision Date: 02 November 2011
• Docket Number: No. 2010–412.,2010–412.
• Citation: 34 A.3d 717,39 Media L. Rep. 2595,162 N.H. 641
• Parties: David MONTENEGRO v. CITY OF DOVER.
• Court: New Hampshire Supreme Court

162 N.H. 641

34 A.3d 717

39 Media L. Rep. 2595

David MONTENEGRO

v.CITY OF DOVER.

No. 2010–412.

Supreme Court of New Hampshire.

Submitted: June 16, 2011.Opinion Issued: Nov. 2, 2011.

David Montenegro, by brief, pro se.

Allan B. Krans, of Dover, by brief, for the City of Dover.

HICKS, J.

The petitioner, David Montenegro, appeals an order of the Superior Court ( Brown, J.) denying his petition under the Right–to–Know Law, RSA ch. 91–A (2001 & Supp.2010), requesting disclosure of information pertaining to certain surveillance equipment and procedures under the control of the respondent, the City of Dover (City). We affirm in part, reverse in part and remand.

The following facts are recited in the trial court's order or are supported in the record. The petitioner filed a request with the City on January 14, 2010, seeking the disclosure of: (1) the precise locations of the City's surveillance equipment; (2) the recording capabilities for each piece of equipment; (3) the specific time periods each piece of equipment is operational; (4) the retention time for any recordings; and (5) the job titles of those who monitor the recordings.

On January 21, the City denied his request on the basis that “it would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions.” In addition, the City stated that “disclosure could reasonably be expected to risk circumvention of the law.” Nevertheless, the City represents that it disclosed to the petitioner: the general location and buildings where cameras are, or are proposed to be, sited; the number of cameras in or around each site; “[t]he capability and intent of the Dover Police to monitor cameras from remote locations”; the “intent of the Dover Police not to monitor the cameras on a regular basis,” but to view them as needed when it would assist in law enforcement; “[t]he cost of the security equipment”; “[t]he names of the vendors installing the security equipment”; “[t]he contracts for installing the security equipment”; and when the equipment was installed.

Subsequently, the petitioner filed a petition with the superior court, seeking the information he had requested from the City. On March 26, the trial court held a hearing at which the City provided the court with a Vaughn index describing each document withheld or redacted, and justifying the reason for nondisclosure. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973); Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 548–49, 705 A.2d 725 (1997) (discussing use of Vaughn index). The court found that the City had sustained its burden of justifying withholding the precise locations of the City's surveillance equipment, the type of recording capabilities for each piece of equipment, the specific time periods each piece of equipment is expected to be operational, and the retention time for any recordings. The court also found the job titles of those who monitor the surveillance recordings exempt from disclosure as “internal personnel practices” pursuant to RSA 91–A:5, IV (Supp.2010).

On appeal, the petitioner argues that: (1) the federal Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 et seq., does not control requests for governmental records pursuant to our Right–to–Know Law; (2) Part I, Article 8 of the New Hampshire Constitution and RSA chapter 91–A hold the government to a “higher standard of public accountability” than does the FOIA; (3) disclosure of the information requested could not reasonably be expected to interfere with enforcement proceedings, risk circumvention of the law, or endanger the life or physical safety of any individual; (4) the job titles of those allowed to monitor the surveillance recordings are not exempt from disclosure under RSA 91–A:5, IV; (5) people conducting their private affairs in public buildings have the right to know how those activities are monitored; and (6) the operation of hidden cameras for routine surveillance of the public by local government violates Part I, Article 8 of our constitution.

“Resolution of this case requires us to interpret the Right–to–Know Law, which is a question of law that we review de novo.” ATV Watch v. N.H. Dep't of Transp., 161 N.H. 746, 752, 20 A.3d 919 (2011) (quotation and ellipsis omitted). “When interpreting a statute, we first look to the plain meaning of the words used and will consider legislative history only if the statutory language is ambiguous.” Id. (quotation omitted). We do not consider words and phrases in isolation, but rather within the context of the statute as a whole. In the Matter of Scott & Pierce, 160 N.H. 354, 360, 999 A.2d 229 (2010). This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. “The purpose of the Right–to–Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 438, 821 A.2d 1014 (2003) (quotation omitted). Thus, the Right–to–Know Law helps further our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted. Id.; see N.H. CONST. pt. I, art. 8.

The petitioner first argues that the trial court erred because the FOIA “does not control” requests for New Hampshire governmental records under the Right–to–Know Law. The trial court, however, did not apply the FOIA in this case, but rather concluded that the requested information “fit[ ] squarely within exemptions (A), (E), and (F) as laid out in Murray [ v. N.H. Div. of State Police, 154 N.H. 579, 582, 913 A.2d 737 (2006) ].” While the test employed in Murray is admittedly one we adopted from the FOIA, use of the Murray test does not constitute an application of federal law. Rather, in interpreting and applying our own Right–to–Know Law, we “look to the decisions of other jurisdictions, since other similar acts, because they are in pari materia, are interpretively helpful, especially in understanding the necessary accommodation of the competing interests involved.” Murray, 154 N.H. at 581, 913 A.2d 737 (quotation omitted).

The petitioner further argues that the trial court erred in applying Murray and its predecessor, Lodge v. Knowlton, 118 N.H. 574, 391 A.2d 893 (1978), because, by doing so, it “appears to have treated the requested information as part of a law enforcement investigation or prosecution.” He asserts that his request sought “no investigatory information.”

In Lodge, we adopted “the six-prong test of 5 U.S.C. § 552(b)(7) (Supp.1975) ... for the guidance of our judges who may be faced with” cases dealing with “police investigatory files.” Lodge, 118 N.H. at 577, 391 A.2d 893. We determined that the FOIA test “provides a good standard to effectuate the balance of interests required by RSA [chapter] 91–A with regard to” such files. Id. At the time, the test exempted, under certain circumstances, “investigatory records compiled for law enforcement purposes.” Id. at 576, 391 A.2d 893 (quotation omitted).

In 1986, Congress amended 5 U.S.C. § 552(b)(7) by deleting the word “investigatory” and inserting the words “or information,” so that protection is now available to all “records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7) (2006); see Abdelfattah v. United States Dept. of Homeland Sec., 488 F.3d 178, 184 (3d Cir.2007). In Murray, we employed this amended test, which exempts:

“ records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual....”

Murray, 154 N.H. at 582, 913 A.2d 737 (quoting 5 U.S.C. § 552(b)(7) (2002)) (emphasis added).

The petitioner correctly points out that even though Murray quoted the amended FOIA test, it applied a requirement from the pre-amendment Lodge case; namely, that “[t]he entity resisting disclosure under exemption (A) must initially show that the requested documents are: (1) investigatory; and (2) compiled for law enforcement purposes.” Id., see Lodge, 118 N.H. at 576–77, 391 A.2d 893. Recitation of this apparent vestige was of no consequence in Murray, however, because “[t]he petitioner [did] not challenge the trial court's findings that the requested documents [were] investigatory in nature and that they were [compiled] for law enforcement purposes.” Murray, 154 N.H. at 582, 913 A.2d 737. We now clarify that in Murray, we intended to adopt the amended test set out in 5 U.S.C. § 552(b)(7) (2006). Thus, to withhold materials under the modified test adopted in Murray, an agency need not establish that the materials are...