SEACOAST NEWSPAPERS, INC.
CITY OF PORTSMOUTH
Supreme Court of New Hampshire
May 29, 2020
Argued: November 20, 2019
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester
(Richard C. Gagliuso on the brief and orally), and American
Civil Liberties Union of New Hampshire, of Concord (Gilles R.
Bissonnette and Henry R. Klementowicz on the brief), for the
Jackson Lewis P.C., of Portsmouth (Thomas M. Closson on the
brief and orally), for the defendant.
Perroni, PC, of North Chelmsford, Massachusetts (Peter J.
Perroni on the brief and orally), for the intervenor, New
England Police Benevolent Association, Local 220.
plaintiff, Seacoast Newspapers, Inc., appeals an order of the
Superior Court (Messer, J.) denying its petition to
disclose an arbitration decision concerning the termination
of a police officer by the defendant, the City of Portsmouth.
Seacoast primarily argues that we have previously
misconstrued the "internal personnel practices"
exemption of our Right-to-Know Law. See RSA 91-A:5,
IV (2013). Today, we take the opportunity to redefine what
falls under the "internal personnel practices"
exemption, overruling our prior interpretation set forth in
Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993).
As explained below, we conclude that only a narrow set of
governmental records, namely those pertaining to an
agency's internal rules and practices governing
operations and employee relations, falls within that
exemption. Accordingly, we hold that the arbitration decision
at issue here does not fall under the "internal
personnel practices" exemption, vacate the trial
court's order, and remand for the trial court's
consideration of whether, or to what extent, the arbitration
decision is exempt from disclosure because it is a
"personnel . . . file[ ]." RSA 91-A:5, IV. We also
deny Seacoast's request for attorney's fees.
Factual and Procedural History
following facts are undisputed or supported by the record. In
2015, the City of Portsmouth terminated the employment of
Aaron Goodwin, a former police officer with the Portsmouth
Police Department. Following Goodwin's termination, the
Portsmouth Police Ranking Officers Association, New England
Police Benevolent Association, Local 220 (Union) filed a
grievance on his behalf challenging the termination and
seeking his reinstatement. Arbitration of the grievance was
conducted in accordance with the Union's collective
bargaining agreement and administered by an independent
arbitrator. The final decision was issued in 2018.
alleged misconduct while employed by the Department has been
the subject of significant media attention throughout New
Hampshire and beyond, given the public's significant
interest in learning about how its public officials resolve
matters involving alleged breaches of trust and conflicts of
interest by public employees and, in particular, police
officers. To that end, a reporter employed by Seacoast
submitted a written request to the City seeking access to a
copy of the arbitration decision. The City agreed that it
should be released to the public. However, the City's
attorney informed the reporter that the City would not
release the decision in light of the position taken by the
Union that it was exempt from disclosure under the
Right-to-Know Law's exemptions for "internal
personnel practices" and "personnel . . .
files." See RSA 91-A:5, IV.
response, Seacoast filed a petition in superior court seeking
to compel disclosure of the decision and requesting
attorney's fees. It argued that the City had "not
demonstrated any reasonable valid basis for denying
access" to the decision. The City answered that it did
not object to the relief sought by Seacoast with the
exception of its request for attorney's fees. However,
the Union moved to intervene and the trial court granted its
motion. The Union opposed Seacoast's petition,
reiterating its position that both exemptions precluded
disclosure of the decision. After a hearing and in
camera review of the decision, the trial court concluded
that it was exempt from disclosure under the "internal
personnel practices" exemption. See RSA 91-A:5,
IV. The trial court reasoned that the arbitration grievance
"process was conducted internally and was performed for
the benefit of . . . Goodwin and his former employer"
and therefore bore "all the hallmarks of an internal
personnel practice." The trial court therefore did not
determine whether the decision is also exempt from disclosure
because it is a personnel file. See RSA 91-A:5, IV.
This appeal followed.
Standard of Review
outset, we describe the appropriate standard of review in
Right-to-Know Law matters. Part I, Article 8 of the New
Hampshire Constitution provides that "the public's
right of access to governmental proceedings and records shall
not be unreasonably restricted." The Right-to-Know Law
states that "[e]very citizen . . . has the right to
inspect all governmental records . . . except as otherwise
prohibited by statute or RSA 91-A:5." RSA 91-A:4, I
ordinary rules of statutory construction apply to our
interpretation of the Right-to-Know Law, and we therefore
look to the plain meaning of the words used when interpreting
the statute. Union Leader Corp. v. City of Nashua,
141 N.H. 473, 475 (1996). Ultimately, this court interprets
the Right-to-Know Law with a view toward disclosing the
utmost information in order to best effectuate our statutory
and constitutional objective of facilitating access to public
documents. Union Leader Corp. v. N.H. Housing Fin.
Auth., 142 N.H. 540, 546 (1997). Accordingly, although
the statute does not provide for unfettered access to public
records, we broadly construe provisions in favor of
disclosure and interpret the exemptions restrictively.
Id. We also consider the decisions of courts in
other jurisdictions because similar acts are in pari
materia and interpretatively helpful. Id.
issue here are two exemptions from disclosure set forth in
the Right-to-Know Law for records pertaining to: (1)
"internal personnel practices"; and (2)
"personnel . . . files." RSA 91-A:5, IV. The trial
court relied on the progeny of Fenniman in ruling
that the arbitration decision is exempt because it is an
internal personnel practice.
"Internal Personnel Practices"
Fenniman, we broadly construed the "internal
personnel practices" exemption to categorically exclude
from disclosure records documenting a public agency's
internal discipline of an employee. Fenniman, 136
N.H. at 626-27. Although we recognized that "we
generally interpret the exemptions in [the Right-to-Know law]
restrictively," we also stated that "the plain
meanings of the words 'internal,'
'personnel,' and 'practices' are themselves
quite broad." Id. at 626. As a result, we held
that documents compiled during an internal investigation of a
police department lieutenant accused of making harassing
phone calls were "categorically exempt" from
disclosure under the "internal personnel practices"
exemption because "they document[ed] procedures leading
up to internal personnel discipline, a quintessential example
of an internal personnel practice." Id. at
interpretation of the "internal personnel
practices" exemption in Fenniman departed from
our customary Right-to-Know Law jurisprudence in two
significant ways. Reid v. N.H. Attorney General, 169
N.H. 509, 519-20 (2016). First, we failed to interpret the
exemption narrowly and, second, we declined to employ a
balancing test. Id. at 520; see, e.g.,
Lambert v. Belknap County Convention, 157 N.H. 375,
382-86 (2008) (describing the balancing test employed to
determine whether public records are exempt from disclosure
because their release would constitute invasion of privacy).
Our analysis in Fenniman had additional
shortcomings, including its failure to consult decisions from
other jurisdictions interpreting similar statutes, in
particular, cases interpreting the federal Freedom of
Information Act (FOIA) - an inquiry we make in cases
requiring us to interpret certain provisions of the
Right-to-Know Law and its failure to consider whether a broad
interpretation of the "internal personnel
practices" exemption might render any of the remaining
statutory language redundant or superfluous - in particular,
the language exempting "personnel . . . files."
Reid, 169 N.H. at 520; see RSA 91-A:5, IV.
subsequently applied the "internal personnel