Union Leader Corp. v. Town of Salem

• Decision Date: 29 May 2020
• Docket Number: No. 2019-0206,2019-0206
• Citation: 173 N.H. 345,239 A.3d 961
• Parties: UNION LEADER CORPORATION & a. v. TOWN OF SALEM
• Court: New Hampshire Supreme Court

173 N.H. 345

239 A.3d 961

UNION LEADER CORPORATION & a.

v.TOWN OF SALEM

No. 2019-0206

Supreme Court of New Hampshire.

Argued: November 20, 2019

Opinion Issued: May 29, 2020

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.

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.

Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Nathan C. Midolo on the brief, and Mr. Mayer 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.

New Hampshire Municipal Association, of Concord (Cordell A. Johnston, Stephen C. Buckley, and Natch Greyes on the brief), as amicus curiae.

HICKS, J.

The 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, 620 A.2d 1039 (1993), and its progeny. See RSA 91-A:5, IV (2013).

In a 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. 325, 335, 239 A.3d 946 (2020). 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.

I. Facts

The 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.

The 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 files" exemption.

The 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.

The 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."

The 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.

II. Discussion

On 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, 42 A.3d 853 (2012) (explaining that "we decide cases on constitutional grounds only when necessary").¹

A. Standard of Review

When 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, 686 A.2d 310 (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).

B. Fenniman and Stare Decisis

At 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, 620 A.2d 1039. 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, 620 A.2d 1039 (quotation omitted). In addition, we adopted a per se rule exempting such materials from disclosure. Id. at 627, 620 A.2d 1039. 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 categorically exempt." Id. (citations omitted).

In Reid v. New Hampshire Attorney General, 169 N.H. 509, 152 A.3d 860 (2016), we criticized Fenniman, but did not decide whether to overrule it because we were not asked to do so. See Reid, 169 N.H. at 519-22, 152 A.3d 860. In Reid, we observed that, in Fenniman, we had failed to interpret the "internal personnel practices" exemption narrowly and had adopted a per se rule of exemption, which departed from our customary Right-to-Know Law jurisprudence under which a balancing test applies. Id. at 519-20, 152 A.3d 860 ; see Lambert v. Belknap County Convention, 157 N.H. 375, 382-86, 949 A.2d 709 (2008) (describing the balancing test used to determine whether public records are exempt from disclosure because their release would constitute an invasion of privacy). We also observed that, in Fenniman, we "did not interpret the portion of RSA 91-A:5, IV at issue in the context of the remainder of the statutory language—in particular, the language exempting ‘personnel ... and other files.’ " Reid, 169 N.H. at 520, 152 A.3d 860. We further observed that, in Fenniman, we had failed to consult decisions from other jurisdictions, particularly federal courts interpreting "Exemption 2" under the federal Freedom of Information Act (FOIA). Id. at 520-21, 152 A.3d 860 ; see 5 U.S.C. § 552(b)(2) (2018) (exempting from disclosure under FOIA information "related solely to the internal personnel...