UNION LEADER CORPORATION & a.
TOWN OF SALEM
Supreme Court of New Hampshire
May 29, 2020
Argued: November 20, 2019
& 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
American Civil Liberties Union of New Hampshire, of Concord
(Gilles R. Bissonnette and Henry R. Klementowicz on the
brief, and Mr. Bissonnette orally), and Richard J. Lehmann,
of Manchester, on the brief, for plaintiff American Civil
Liberties Union of New Hampshire.
& Hatfield, LLP, of Concord (Barton L. Mayer and Nathan
C. Midolo on the brief, and Mr. Mayer orally), for the
Perroni, PC, of North Chelmsford, Massachusetts (Peter J.
Perroni on the brief and orally), for the intervenor, New
England Police Benevolent Association, Local 220.
Hampshire Municipal Association, of Concord (Cordell A.
Johnston, Stephen C. Buckley, and Natch Greyes on the brief),
as amicus curiae.
plaintiffs, Union Leader Corporation and American Civil
Liberties Union of New Hampshire (ACLU-NH), appeal an order
of the Superior Court (Schulman, J.) denying their
petition for the release of "complete, unredacted
copies" of: (1) "the 120-page audit report of the
Salem Police Department . . . dated October 12, 2018 focusing
on internal affairs complaint investigations"; (2)
"the 15-page addendum focused on the [Salem Police]
Department's culture"; and (3) "the 42-page
audit report of the [Salem Police] Department dated September
19, 2018 focusing on time and attendance practices."
Collectively, we refer to these documents as the "Audit
Report." The trial court upheld many of the redactions
made to the Audit Report by the defendant, the Town of Salem
(Town), concluding that they were required by the
"internal personnel practices" exemption to the
Right-to-Know Law, RSA chapter 91-A, as interpreted in
Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993),
and its progeny. See RSA 91-A:5, IV (2013).
separate opinion issued today, we overruled Fenniman
to the extent that it broadly interpreted the "internal
personnel practices" exemption and overruled our prior
decisions to the extent that they relied on that broad
interpretation. See Seacoast Newspapers, Inc. v. City of
Portsmouth, 173 N.H. ____, ____ (decided May 29, 2020)
(slip op. at 9). We now overrule Fenniman to the
extent that it decided that records related to "internal
personnel practices" are categorically exempt from
disclosure under the Right-to-Know Law instead of being
subject to a balancing test to determine whether such
materials are exempt from disclosure. We overrule our prior
decisions to the extent that they applied the per se
rule established in Fenniman. We vacate the trial
court's order and remand for further proceedings
consistent with this opinion.
trial court recited the following relevant facts. The Audit
Report was prepared by a nationally-recognized consulting
firm, which had been retained by the Town's outside
counsel at the Town's request. The Audit Report is highly
critical of the Town's police department.
Town publicly released a copy of the Audit Report, but
redacted certain information pursuant to two exemptions to
the New Hampshire Right- to-Know Law: (1) the "internal
personnel practices" exemption; and (2) the exemption
for "personnel . . . and other files." RSA 91-A:5,
IV. The plaintiffs brought the instant action to obtain an
unredacted copy of the Audit Report. On appeal, they
challenge the trial court's decision only to the extent
that it sustained the redactions made under the
"internal personnel practices" exemption. They do
not challenge the trial court's decision to sustain
redactions under the "personnel . . . and other
trial court reviewed the unredacted Audit Report in
camera and compared it, line by line, to the redacted
version released to the public. Although critical of our
decision in Fenniman, the trial court properly
considered itself bound by it. Applying Fenniman,
the trial court upheld the following redactions pursuant to
the "internal personnel practices" exemption: (1)
information to protect the identity of participants in
particular internal affairs investigations (names of the
accused officer(s) and/or the investigator(s), dates of
investigations, specific locations, other facts that could be
used to identify a participant officer, investigator, or
witness, and dates of alleged misconduct); (2) information
relating to a particular employee's scheduling of outside
details and time off; (3) the manner by which an employee
arranged for vacation leave and other time off from work; and
(4) the names of employees who were paid for outside details
during hours for which they were also receiving regular pay.
trial court did not apply a balancing test to determine
whether the redacted material should be disclosed, but
rather, based upon Fenniman, ruled that the redacted
material was categorically exempt from disclosure.
Nonetheless, the court observed that "[a] balance of the
public interest in disclosure against the legitimate privacy
interests of the individual officers and higher-ups
strongly favors disclosure of all but small and
isolated portions of the Internal Affairs Practices section
of the audit report."
trial court ordered the Town to provide the plaintiffs with a
copy of the Audit Report containing only the redactions it
upheld. The Town complied with the trial court's order on
April 26, 2019, shortly after the instant appeal was filed.
appeal, the plaintiffs urge us to overrule Fenniman.
Alternatively, they argue that the Audit Report, in its
entirety, does not relate to "internal personnel
practices" even under Fenniman, and that Part
I, Article 8 of the State Constitution requires that we
employ a balancing test, rather than a per se rule,
to determine whether records relating to "internal
personnel practices" are exempt from disclosure.
Finally, the plaintiffs contend that applying a balancing
test to the redacted information favors the information's
disclosure. Because we decide this case on statutory grounds,
we do not reach the plaintiffs' constitutional argument.
See Chatman v. Strafford County, 163 N.H. 320, 322
(2012) (explaining that "we decide cases on
constitutional grounds only when
Standard of Review
interpreting the Right-to-Know Law, we apply our ordinary
rules of statutory interpretation. Union Leader Corp. v.
City of Nashua, 141 N.H. 473, 475 (1996). Accordingly,
we look to the plain meaning of the words used. Id.
"To advance the purposes of the Right-to-Know Law, we
construe provisions favoring disclosure broadly and
exemptions narrowly." Id. (quotation omitted).
Fenniman and Stare Decisis
issue is the interpretation of RSA 91-A:5, IV, which exempts
from disclosure under the Right-to-Know Law
[r]ecords pertaining to internal personnel
practices; confidential, commercial, or financial
information; test questions, scoring keys, and other
examination data used to administer a licensing examination,
examination for employment, or academic examinations; and
personnel, medical, welfare, library user, videotape sale or
rental, and other files whose disclosure would constitute
invasion of privacy.
RSA 91-A:5, IV (emphasis added). Fenniman was the
first case to interpret the exemption for "internal
personnel practices." In that case, the plaintiff sought
"memoranda and other records compiled" during a
police department's internal investigation of a
department lieutenant who had been accused of making
harassing phone calls. Fenniman, 136 N.H. at 625,
626. We broadly construed the "internal personnel
practices" exemption to apply to those records because
"they document[ed] procedures leading up to internal
personnel discipline, a quintessential example of an internal
personnel practice." Id. at 626 (quotation
omitted). In addition, we adopted a per se rule
exempting such materials from disclosure. Id. at
627. We explained, "Although we have often applied a
balancing test to judge whether the benefits of nondisclosure
outweigh the benefits of disclosure, such an analysis is
inappropriate where, as here, the legislature has plainly
made its own determination that certain documents are...