N.H. Ctr. for Pub. Interest Journalism v. N.H. Dep't of Justice

• Citation: 173 N.H. 648,247 A.3d 383
• Decision Date: 30 October 2020
• Docket Number: No. 2019-0279,2019-0279
• Parties: NEW HAMPSHIRE CENTER FOR PUBLIC INTEREST JOURNALISM & a. v. NEW HAMPSHIRE DEPARTMENT OF JUSTICE
• Court: Supreme Court of New Hampshire

173 N.H. 648

247 A.3d 383

NEW HAMPSHIRE CENTER FOR PUBLIC INTEREST JOURNALISM & a.

v.NEW HAMPSHIRE DEPARTMENT OF JUSTICE

No. 2019-0279

Supreme Court of New Hampshire.

Argued: September 16, 2020

Opinion Issued: October 30, 2020

American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and Mr. Bissonnette orally), and Moir & Rabinowitz, PLLC, of Concord (James H. Moir on the brief), for plaintiffs New Hampshire Center for Public Interest Journalism, The Telegraph of Nashua, Newspapers of New England, Inc., Seacoast Newspapers, Inc., Keene Publishing Corporation, and American Civil Liberties Union of New Hampshire.

Malloy & Sullivan, Lawyers Professional Corporation, of Hingham, Massachusetts (Gregory V. Sullivan on the brief and orally), and Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief), for plaintiff Union Leader Corporation.

Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general, on the brief and orally), for the New Hampshire Department of Justice.

Milner & Krupski, PLLC, of Concord (John S. Krupski on the memorandum of law), for the New Hampshire Police Association and Matthew Jajuga, as amici curiae.

Daniel M. Conley, of Goffstown, on the brief for the New Hampshire Association of Chiefs of Police, as amicus curiae.

Brennan, Lenehan, Iacopino & Hickey, of Manchester (Jaye L. Rancourt on the memorandum of law) for the New Hampshire Association of Criminal Defense Lawyers, as amicus curiae.

HICKS, J.

The New Hampshire Department of Justice (DOJ) appeals an order of the Superior Court (Temple, J.) denying its motion to dismiss the petition of the plaintiffs, New Hampshire Center for Public Interest Journalism, The Telegraph of Nashua, Union Leader Corporation, Newspapers of New England, Inc., Seacoast Newspapers, Inc., Keene Publishing Corporation, and American Civil Liberties Union of New Hampshire, seeking a declaration that the "Exculpatory Evidence Schedule" (EES), excluding the names of police officers with pending requests to be removed from the list, must be made public pursuant to the Right-to-Know Law, RSA chapter 91-A, and Part I, Article 8 of the New Hampshire Constitution. In denying the motion to dismiss, the trial court rejected the DOJ's arguments that the EES is "confidential" under RSA 105:13-b (2013) and that it is exempt from disclosure under the Right-to-Know Law either because it is an "internal personnel practice" or a "personnel file" under RSA 91-A:5, IV (2013). We uphold the trial court's determinations that the EES is neither "confidential" under RSA 105:13-b nor exempt from disclosure under the Right-to-Know Law as an "internal personnel practice" or a "personnel file." Nonetheless, we vacate the trial court's decision and remand for it to determine, in the first instance, whether as the DOJ contends, the EES constitutes an "other file[ ] whose disclosure would constitute invasion of privacy." RSA 91-A:5, IV.

I. Facts

The trial court recited the following facts. The DOJ currently maintains a list of police officers who have engaged in misconduct reflecting negatively on their credibility or trustworthiness. The list, formerly known as the " Laurie List," is now called the EES. See State v. Laurie, 139 N.H. 325, 327, 330, 333, 653 A.2d 549 (1995) (overturning a defendant's murder conviction because the State failed to disclose certain employment records of a testifying detective that "reflect[ed] negatively on the detective's character and credibility"). The EES is a spreadsheet containing five columns of information: (1) officer's name; (2) department employing the officer; (3) date of incident; (4) date of notification; and (5) category or type of behavior that resulted in the officer being placed on the list. The DOJ asserts that the EES "offers no precise information as to the specific conduct of any officer," but rather "contains a succinct, often one-word label capturing at a categorical level the behavior that placed the officer on the EES."

The EES does not physically reside in any specific police officer's personnel file. Rather, according to the DOJ, the EES "functions solely as a reference point, to alert a prosecutor to the need to initiate an inquiry into whether an officer's actual personnel file might contain exculpatory evidence."

The plaintiffs filed requests under the Right-to-Know Law for the most recent version of the EES. The DOJ responded by providing a version of the EES that redacted any personal identifying information of the officers on the list. Some of the plaintiffs then requested an unredacted version of the EES that would exclude information concerning officers with pending requests to be removed from the EES. The DOJ denied those requests, and the plaintiffs brought the instant petition seeking, among other things, a declaration that "the unredacted EES list," excluding officers who have "challenged their placement on the EES list" or for whom there has not "been a sustained finding of misconduct affecting the officer's credibility or truthfulness," is "a public record that must be made public under RSA Chapter 91-A and Part I, Article 8 of the New Hampshire Constitution."

The DOJ subsequently moved to dismiss the plaintiffs’ action on the ground that they failed to state a legal basis for the relief sought. The DOJ argued that disclosure of the EES is barred by RSA 105:13-b. Alternatively, the DOJ maintained that the EES is exempt from disclosure under the Right-to-Know Law, either because it relates to "internal personnel practices," or because it constitutes a "personnel" or "other file[ ] whose disclosure would constitute invasion of privacy." RSA 91-A:5, IV. The trial court denied the motion. The parties subsequently stipulated that the trial court's order constituted a final decision on the merits in favor of the plaintiffs, and the trial court so ordered. This appeal followed.

II. Analysis

A. Standards of Review

In reviewing a trial court's ruling on a motion to dismiss, we consider whether the allegations in the pleadings are reasonably susceptible of a construction that would permit recovery.

Weare Bible Baptist Church v. Fuller, 172 N.H. 721, 725, 234 A.3d 256 (2019). We assume the pleadings to be true and construe all reasonable inferences in the light most favorable to the plaintiffs. Id. We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law. Id. When the facts alleged by the plaintiffs are reasonably susceptible of a construction that would permit recovery, we will uphold the denial of a motion to dismiss. Id. at 725-26, 234 A.3d 256.

Resolving the issues in this appeal requires that we engage in statutory interpretation. We review the trial court's statutory interpretation de novo. Darbouze v. Champney, 160 N.H. 695, 697, 8 A.3d 105 (2010). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of the statute is clear on its face, its meaning is not subject to modification. Id. We will neither consider what the legislature might have said nor add words that it did not see fit to include. Id.

We resolve questions regarding the Right-to-Know Law with a view to providing the utmost information in order to best effectuate the law's statutory and constitutional objectives. N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95, 103, 143 A.3d 829 (2016). 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." RSA 91-A:1 (2013). "Thus, the Right-to-Know Law furthers our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted." N.H. Right to Life, 169 N.H. at 103, 143 A.3d 829 (quotation omitted); see also N.H. CONST. pt. I, art. 8. Accordingly, when interpreting the Right-to-Know Law, we broadly construe provisions favoring disclosure and interpret exemptions restrictively. N.H. Right to Life, 169 N.H. at 103, 143 A.3d 829. We also look to the decisions of other jurisdictions interpreting similar acts for guidance, including federal interpretations of the federal Freedom of Information Act (FOIA). Id. "Such similar laws, because they are in pari materia, are interpretatively helpful, especially in understanding the necessary accommodation of the competing interests involved." Id. (quotation omitted).

B. The Background of the EES

Before addressing the specific issues on appeal, we briefly discuss the background and operation of the EES. See Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 777-80, 119 A.3d 188 (2015) ; Gantert v. City of Rochester, 168 N.H. 640, 645-47, 135 A.3d 112 (2016). As relevant here, prosecutors have a duty to disclose exculpatory information and information that may be used to impeach the State's witnesses. Duchesne, 167 N.H. at 777, 119 A.3d 188 ; see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; see also United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The duty to disclose such information applies regardless of whether the defendant requests it. Duchesne, 167 N.H. at 777, 119 A.3d 188. Moreover, the duty is not satisfied merely because an individual prosecutor is unaware that exculpatory information exists; rather, we impute knowledge among prosecutors in the same office. Id. at 778, 119 A.3d 188. Accordingly, individual prosecutors have "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (...