Murray v. Nh Div. Of State Police

• Decision Date: 20 December 2006
• Docket Number: No. 2006-113.,2006-113.
• Citation: 913 A.2d 737
• Parties: Frederick J. MURRAY v. NEW HAMPSHIRE DIVISION OF STATE POLICE, SPECIAL INVESTIGATION UNIT and another.
• Court: New Hampshire Supreme Court

Page 737

913 A.2d 737

Frederick J. MURRAY v. NEW HAMPSHIRE DIVISION OF STATE POLICE, SPECIAL INVESTIGATION UNIT and another.

No. 2006-113.

Supreme Court of New Hampshire.

Argued: November 14, 2006.

Opinion Issued: December 20, 2006.

Gallant & Ervin, LLC, of Chelmsford, MA (Timothy J. Ervin, on the brief and orally), for the petitioner.

Kelly A. Ayotte, attorney general (Daniel J. Mullen, associate attorney general, on the brief, and Nancy J. Smith, senior assistant attorney general, orally), for the respondents.

GALWAY, J.

The petitioner, Frederick J. Murray, appeals an order of the Superior Court (Vaughan, J.) denying his request for injunctive and other relief relative to the decisions of the respondents, the New Hampshire Division of State Police, Special Investigation Unit and several other law enforcement agencies and officials, not to disclose records relating to the disappearance of his daughter, Maura Murray. We vacate and remand.

The following facts were either found by the trial court or appear in the record and are not disputed by the parties on appeal. On February 9, 2004, Maura Murray's vehicle was reported to have been involved in a single-car accident along Route 112 in Haverhill, New Hampshire. When the North Haverhill police arrived at the scene, they found no trace of Maura. In the nearly three years since her disappearance, numerous agencies and individuals have attempted to locate her without success.

After the accident, and through approximately October 2005, the petitioner sent requests to numerous agencies, pursuant to New Hampshire's Right-to-Know Law, RSA ch. 91-A (2001 & Supp. 2006), and the federal Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 (2002) et seq., requesting records and information pertaining to those agencies' investigations into Maura's disappearance. All of the investigatory material is now under the control of the attorney general's office. With a single, minor exception, the attorney general's office has denied all of the petitioner's requests on the grounds that the records are exempt from disclosure because they are investigatory and because disclosure would constitute an unwarranted invasion of privacy.

In December 2005, the petitioner filed a petition in superior court requesting, among other things, a declaration that the respondents' denials violated the Right-to-Know Law and FOIA, and an injunction requiring the respondents to release the requested documents. In January 2006, the trial court ruled that the requested records were investigatory in nature and that disclosure could interfere with law enforcement proceedings. It therefore denied the petitioner's requests. Additionally, the trial court did not find either an in camera review or the compilation of a Vaughn index necessary. See Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 548-551, 705 A.2d 725 (1997) (explaining the attributes of a Vaughn index). The trial court did not address the petitioner's contention that disclosing the documents would not constitute an invasion of privacy.

On appeal, the petitioner contends that the trial court erred in finding that the requested records were investigatory in nature and that disclosure could interfere with law enforcement proceedings. The petitioner also contends that disclosing the records would not constitute an invasion of privacy. Finally, the petitioner argues that the trial court erred in denying his request for in camera review or the compilation of a Vaughn index.

"The interpretation of a statute, including the Right-to-Know Law, is to be decided ultimately by this court." N.H. Challenge v. Commissioner, N.H. Dep't of Educ., 142 N.H. 246, 249, 698 A.2d 1252 (1997) (quotation omitted). "The superior court's legal conclusions and its application of law to fact are ultimately questions for this court." Id. Thus, in the absence of disputed facts, we review the trial court's ruling de novo. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 476, 686 A.2d 310 (1996).

"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 also N.H. CONST. pt. I, art. 8. While the statute does not provide for unrestricted access to public records, we resolve questions regarding the Right-to-Know Law with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents. Id. Therefore, we construe provisions favoring disclosure broadly, while construing exemptions narrowly. Id. "We also look to the decisions of other jurisdictions, since other similar acts, because they are in pari materia, are interpretatively helpful, especially in understanding the necessary accommodation of the competing interests involved." N.H. Housing Fin. Auth., 142 N.H. at 546, 705 A.2d 725 (quotation omitted). Finally, when a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure. City of Nashua, 141 N.H. at 476, 686 A.2d 310.

Because the respondents make no argument to the contrary, we presume for purposes of this appeal that all respondents are subject to the disclosure requirements of the Right-to-Know Law. Our Right-to-Know Law does not explicitly address requests for police investigative files, such as those at issue here. Id. at 475, 686 A.2d 310. In Lodge v. Knowlton, 118 N.H. 574, 391 A.2d 893 (1978), therefore, we adopted the six-prong test under FOIA for evaluating requests for access to police investigative files. Under FOIA, an agency may exempt from disclosure:

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. . . .

5 U.S.C. § 552(b)(7). Because the trial court based its decision upon exemption (A) above, regarding interference with enforcement proceedings, we first consider the application of that exemption.

The entity resisting disclosure under exemption (A) must initially show that the requested documents are: (1) investigatory; and (2) compiled for law enforcement purposes. Lodge, 118 N.H. at 576-77, 391 A.2d 893. The petitioner does not challenge the trial court's findings that the requested documents are investigatory in nature and that they were complied for law enforcement purposes. Accordingly, we conclude that the respondents have met their initial burden.

We next consider whether exemption (A) in fact applies. As noted, we construe provisions favoring disclosure broadly, while construing exemptions narrowly. N.H. Civil Liberties Union, 149 N.H. at 438, 821 A.2d 1014. The key question in the analysis is whether revelation of the documents could reasonably be expected to interfere with enforcement proceedings. Curran v. Dept. of Justice, 813 F.2d 473, 474 (1st. Cir.1987). While an agency must show that enforcement proceedings are pending or reasonably anticipated, see Mapother v. Dept. of Justice, 3 F.3d 1533, 1540 (D.C.Cir.1993); see also NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 232, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), we need not determine whether the respondents have made such a showing here. Assuming, without deciding, that enforcement proceedings are reasonably anticipated, we hold that the respondents have not met their burden to demonstrate that disclosure of the requested documents could reasonably be expected to interfere with those proceedings.

Exemption (A) was designed to eliminate "blanket exemptions" for...