Seacoast Newspapers, Inc. v. City of Portsmouth

• Citation: 239 A.3d 946,173 N.H. 325
• Decision Date: 29 May 2020
• Docket Number: No. 2019-0135,2019-0135
• Parties: SEACOAST NEWSPAPERS, INC. v. CITY OF PORTSMOUTH
• Court: New Hampshire Supreme Court

173 N.H. 325

239 A.3d 946

SEACOAST NEWSPAPERS, INC.

v.CITY OF PORTSMOUTH

No. 2019-0135

Supreme Court of New Hampshire.

Argued: November 20, 2019

Opinion Issued: May 29, 2020

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 plaintiff.

Jackson Lewis P.C., of Portsmouth (Thomas M. Closson on the brief and orally), for the defendant.

Nolan Perroni, PC, of North Chelmsford, Massachusetts (Peter J. Perroni on the brief and orally), for the intervenor, New England Police Benevolent Association, Local 220.

DONOVAN, J.

The 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, 620 A.2d 1039 (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.

I. Factual and Procedural History

The 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.

Goodwin's 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.

In 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.

II. Standard of Review

At the 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 (2013).

The 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, 686 A.2d 310 (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, 705 A.2d 725 (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.

III. Analysis

At 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.

A. "Internal Personnel Practices" Jurisprudence

In 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, 620 A.2d 1039. 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, 620 A.2d 1039. 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 625-27, 620 A.2d 1039.

Our 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, 152 A.3d 860 (2016). First, we failed to interpret the exemption narrowly and, second, we declined to employ a balancing test. Id. at 520, 152 A.3d 860 ; see, e.g., Lambert v. Belknap County Convention, 157 N.H. 375, 382-86, 949 A.2d 709 (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, 152 A.3d 860 ; see RSA 91-A:5, IV.

We subsequently applied the "internal personnel practices" exemption in Hounsell v. North Conway Water Precinct, 154 N.H. 1, 903 A.2d 987 (2006). There, we concluded that an internal investigatory report regarding allegations of threats and harassment made by an employee of the North Conway Water Precinct fell under the "internal personnel practices" exemption. Id. at 2, 4, 903 A.2d 987. Although the report was prepared by outside investigators, we relied on Fenniman and reasoned that "the investigation could have resulted in disciplinary action," and thus the report pertained to "internal personnel practices." Id. at 4, 903 A.2d 987. The Hounsell Court failed to analyze the "internal personnel practices" language or consider the import of RSA 91-A:5 ’s other exemptions.¹

Then, in Reid, 169 N.H. at 523, 152 A.3d 860, we limited the application of Fenniman’s broad interpretation of the exemption. Although neither party in Reid asked us to overrule Fenniman, we pointed out the shortcomings of Fenniman’s analysis of the exemption's language, as described above. Id. at 519-22, 152 A.3d 860. Accordingly, we declined to extend the holding of either Fenniman or Hounsell "beyond their own factual contexts" and instead "return[ed] to our customary standards for construing the Right-to-Know Law." Id. at 521-22, 152 A.3d 860. We clarified that to...