Reid v. N.H. Attorney Gen.

• Decision Date: 23 December 2016
• Docket Number: No. 2015–0499,2015–0499
• Citation: 169 N.H. 509,152 A.3d 860
• Parties: Thomas REID v. NEW HAMPSHIRE ATTORNEY GENERAL
• Court: New Hampshire Supreme Court

169 N.H. 509

152 A.3d 860

Thomas REID

v.NEW HAMPSHIRE ATTORNEY GENERAL

No. 2015–0499

Supreme Court of New Hampshire.

Argued: June 9, 2016

Opinion Issued: December 23, 2016

Reid Law, PLLC, of Concord (Thomas Reid on the brief and orally), for the plaintiff.

Joseph A. Foster, attorney general (Francis C. Fredericks, assistant attorney general, and Nancy Smith, senior assistant attorney general, on the brief, and Mr. Fredericks orally), for the defendant.

LYNN, J.

The plaintiff, Thomas Reid, appeals the decision of the Superior Court (Smukler, J.) denying his petition under the Right-to-Know Law, RSA chapter 91–A, to compel the defendant, New Hampshire Attorney General Joseph Foster, to produce unredacted records of the Attorney General's investigation into alleged wrongdoing by former Rockingham County Attorney James Reams. We vacate and remand.

I

The pertinent facts are as follows. Prior to November 6, 2013, the plaintiff served as the Deputy County Attorney for Rockingham County under County Attorney Reams. On that date, the defendant, claiming to act under authority granted by RSA 7:6 (2013), 7:11 (2013), and 7:34 (2013), suspended the criminal law enforcement authority of the county attorney. Simultaneously, the defendant placed the plaintiff on paid suspension. At the defendant's request, the Rockingham County Commissioners barred Reams from entering his office. It appears from the plaintiff's allegations and a memorandum of law filed by the county commissioners in a related case that the plaintiff also was barred from the Rockingham County Attorney's Office at the defendant's behest. Also at the defendant's request, the superior court appointed an assistant attorney general to serve as interim county attorney for Rockingham County. See RSA 7:33 (2013). The defendant, acting in conjunction with the U.S. Attorney's Office and the Federal Bureau of Investigation, conducted a criminal investigation of Reams that lasted until approximately March of 2014. The plaintiff resigned his position as deputy county attorney on January 17, 2014.

While the criminal investigation was ongoing, Reams instituted lawsuits against the defendant and the county commissioners, asserting that their actions were unlawful and seeking reinstatement to his position as county attorney and access to his office. Based, in part, on the ongoing criminal investigation, the Superior Court (McNamara, J.) denied Reams's requests for preliminary injunctive relief and to conduct discovery.

On March 11, 2014, the defendant and the county commissioners filed a complaint asking the superior court to remove Reams from office pursuant to RSA 661:9, IV (2008). On March 26, the defendant informed the trial court that the criminal investigation had been concluded and that no criminal charges had been or would be brought against Reams. Because the criminal investigation was concluded, the trial court determined that there was no need for discovery in Reams's lawsuits seeking reinstatement to office.

By order of April 10, 2014, the court ruled that Reams's continued suspension from office was unlawful, and that he must be reinstated as Rockingham County Attorney and allowed access to his office. The court stayed its order for thirty days so as to permit the attorney general and the county commissioners to appeal and request a further stay from this court. The attorney general and the county commissioners did appeal to this court and sought an extension of the stay—relief which we denied.¹ On June 18, 2014, both proceedings were settled.

On April 17, 2014, the plaintiff submitted a request for disclosure of the defendant's records concerning the investigation of Reams. Specifically, the plaintiff sought the following materials:

• investigative reports, interview notes, memos, emails, recordings or other records relied upon as the basis for suspending the plaintiff's law enforcement authority;

• a recitation of all information possessed by the defendant on November 6, 2013, that led him to conclude that a criminal investigation of Reams should be initiated;

• all information, documents and records that justified the assignment of a state trooper to the Rockingham County Courthouse over the evening of November 6–7, 2013, to prevent tampering with records;

• information clarifying whether the county commissioners barred him from his office on their own initiative or at the request of the attorney general;

• copies of any and all warrants, consents, or reports pertaining to the search of the plaintiff's office and the seizure of items therefrom, a listing of the seized items, and return of said items to the plaintiff;

• records, interviews or reports reflecting any acts of discrimination that occurred at the Rockingham County Attorney's Office during the years 2012 and 2013;

• any and all information related to a 2012 call to the Attorney General's Office by Rockingham County Commissioner Barrows with respect to a referral to the County Human Resources Department of a retaliation claim against a County Attorney's Office employee for an earlier discrimination complaint made by the employee's girlfriend (also a County Attorney's Office employee) against Reams, as well as information concerning leaks about the Human Resources investigation made to the press and/or to State Representative Laura Pantelakos; and

• any and all documents, interviews or records showing that Reams had retaliated against any County Attorney's Office employee as a result of the 2012 County Human Resources Department investigation or showing that there was reason to believe employees of the County Attorney's Office would be retaliated against if Reams was allowed to return to his position.

In a second request to the defendant, dated April 24, 2014, the plaintiff sought additional materials, including:

• all records, reports or interviews related to Reams's alleged modification of the supervisory duties of a County Attorney's Office employee who, in 1999, had complained to the Attorney General's Office about the sexual harassment of female employees by Reams, as well as records regarding Reams's alleged actions in causing this employee to be terminated from another job she held after leaving the County Attorney's Office; and

• the return to the plaintiff of the personal and supervisory notes he had compiled during his tenure as Deputy County Attorney.

The defendant timely responded to the requests, indicating that he would require a minimum of 30 days to compile and review the requested records. See RSA 91–A:4, IV (2013). When no further response was received from the defendant for a period of approximately seven months, the plaintiff instituted the present action. The defendant moved to dismiss, acknowledging that he had not timely supplemented his initial response, but arguing that he had otherwise acted reasonably and had not improperly withheld any information. The defendant represented that, as of December 20, 2014, he had begun the first phase of a "rolling production" of materials that consisted of the disclosure of 1293 pages of documents. The defendant requested that the court review in camera materials that he had submitted or proposed to submit in redacted form, so as to determine the propriety of the redactions.

By order dated January 14, 2015, the trial court ruled that the defendant had violated the Right-to-Know Law by failing to timely supplement his response to the plaintiff's requests. As relief, the court awarded the plaintiff his costs. However, the court declined to review redacted documents in camera. Instead, it directed the defendant to provide a "thorough affidavit" supporting his redactions, which the court indicated it would review to determine whether the defendant had sustained his burden of proof.²

The defendant responded by filing a final status report, affidavit, and request for dismissal on February 13, 2015. The affidavit, by Associate Attorney General Anne Edwards, identified the following nine legal bases upon which information had been withheld or redacted: (1) personnel information, under RSA 91–A:5, IV; (2) medical information, under RSA 91–A:5, IV; (3) grand jury records, under RSA 91–A:5, I; (4) financial information, under RSA 91–A:5, IV; (5) "[i]ndividual citizens' private information," the disclosure of which would constitute an invasion of privacy, under RSA 91–A:5, IV; (6) drafts, under RSA 91–A:5, IX; (7) notes, under RSA 91–A:5, VIII; (8) attorney work product, under RSA 91–A:5, IV and VII; and (9) confidential records, under RSA 91–A:5, IV and RSA 651:5. A master list of Bates-numbered documents, submitted as an exhibit to the affidavit, indicated which one or more of the foregoing legal bases for exemption was claimed for each document or category of documents listed. Finally, the defendant requested that the case be dismissed because, it claimed, it had "now responded fully to Mr. Reid's request and the Court Order" of January 14, 2015.

The plaintiff objected, and requested, among other things, additional time "to review the voluminous materials and provide a more comprehensive status report." The request for additional time was granted and, thereafter, the plaintiff filed a motion to compel production of a complete index of records and a motion to compel production of unredacted documents. In his motion to compel production of documents, the plaintiff specifically challenged only one of the defendant's asserted bases of exemption; namely, the exemption claimed under RSA 91–A:5, IV for "personnel information." The defendant objected to both motions.

On July 10, 2015, the trial court denied the plaintiff's motions. The court denied the motion for production of a more detailed index "[b]ecause the defendant has already complied with a previous court order requiring production of an index." It denied the motion to compel production of unredacted documents on the basis that the documents sought were exempt from disclosure under the Right-to-Know Law. Specifical...