NH Supreme Court Overrules Precedent Protecting Internal Public Employee Investigations.
Brian J.S. Cullen, Esq.
In two decisions issued on May 29, 2020, the New Hampshire Supreme Court reversed a quarter-century of precedent interpreting the state’s Right to Know law (RSA 91-A), concluding that it had wrongly decided the application of an exemption to the statute in prior rulings. The decisions significantly narrow the application of an exemption to disclosure of governmental records under the law and, hence, correspondingly broaden the scope of the statute. The rulings have significant, if not fully articulated, ramifications for potential disclosure of records concerning internal investigations of public employees.
By way of background, RSA 91-A broadly provides a public right to inspect “governmental records,” defined to include “any information created, accepted or obtained by, or on behalf of, a public body” in any form, unless exempted. In turn, RSA 91-A:5provides a list of bodies and records that are exempt from the disclosure law, including jury and parole board records. It also exempts:
Records pertaining to internal personnel practices; confidential, commercial, or financial information; . . . and personnel, medical, welfare . . . and other files whose disclosure would constitute invasion of privacy.
RSA 91-A:5 IV. In, The Court had previously held that records concerning an internal investigation of a police officer qualified as records “pertaining to internal personnel practices” under RSA 91-A:5 AND that such records were categorically exempt from disclosure in response to a Right to Know request. Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993). The ruling in Fenniman was subsequently extended to apply to investigations by third party investigators on behalf of the employer.
In its latest companion decisions -- Seacoast Newspapers, Inc. v. Portsmouth and Union Leader Corp. v. Salem -- the Court reversed both aspects of the Fenniman decision. The Portsmouth case concerned a public records request for an arbitration decision addressing the termination of a police officer. The superior court ruled that the arbitration decision was a record “pertaining to internal personnel practices” and thus exempt from disclosure under RSA 91-A. The Supreme Court disagreed. Acknowledging that overturning prior decisions was disfavored, the Court nevertheless concluded that Fenniman’s interpretation of “internal personnel practices” was overbroad given the statute’s stated intent to “ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” The Court reasoned that the term “records pertaining to internal personnel practices” should be construed only to include “records pertaining to internal rules and practices governing an agency’s operations and employee relations.” The Court indicated that records concerning sick leave and parking policies would fall into the refined category. The arbitration ruling, the Court held, did not fall within this narrowed definition.
The Court suggested that the arbitration decision might more properly be considered part of a “personnel file,” observing that “records documenting the history or performance of a particular employee fall within the exemption for personnel files.” The Court cautioned, however, that records qualifying as such are subject to the further question of whether disclosing the document would constitute “invasion of privacy” as set forth in the statute. Because the superior court had not consider the possible application of the “personnel files” exemptions, the Court remanded the case to the superior court to decide: (1) whether the arbitration decision fell within in that exemption; and (2) if so, whether it’s disclosure would constitute invasion of privacy.
The Salem case concerned records of a comprehensive audit of a municipal police department. The municipality produced the bulk of the records requested but invoked the “internal personnel practices” and “personnel file” exemptions under RSA 91-A:5 IV to redact certain portions of the records. Again, the Supreme Court reversed the superior court and remanded the decision. In doing so, the Court extended the newly-minted ruling in the Portsmouth case, holding that even records that did fall within the “internal personnel practices” exemption were NOT absolutely exempt from disclosure, as Fenniman had held. Rather – like personnel files and other records – such records would be subject to a balancing test on which disclosure should turn:
First, we evaluate whether there is a privacy interest at stake that would be invaded by the disclosure. Second, we assess the public’s interest in disclosure. Third, we balance the public interest in disclosure against the government’s interest in nondisclosure and the individual’s privacy interest in nondisclosure. If no privacy interest is at stake, then the Right-to-Know Law mandates disclosure.
Slip. Op. at p.9 (citing Prof’l Firefighters of N.H. v. Local Gov’t Center, 159 N.H. 699, 707 (2010)) (internal citations omitted). Unlike in the Portsmouth case, the Court did not determine in Salem whether the redacted items qualified as pertaining to “internal personnel practices.” It instead instructed the superiorcourt to make that determination in light of its Portsmouth decision.
Because both cases are remanded for further review by the superior court, the full import of the decisions on the public access to internal employment investigations is not definitively settled. Nevertheless, the cases plainly indicate that the withholding of records will be subject to much greater scrutiny.
First, the “internal personnel practices” exemption no longer applies to internal investigative records at all. Many of the records that would fall under that definition – such as vacation and sick leave policies – will almost certainly fail the newly applicable privacy test. It is hard to conceive how such records could be deemed to implicate a privacy interest at all, much less one that outweighs the public interest in disclosure of the record. Of note, in the Portsmouth case, the Court discussed but did not expressly overrule its 2017 decision in Clay v. City of Dover, 169 N.H. 681. There, the Court determined that a completed rubric form used to compare candidates for employment did fall under the “internal personnel practices” exemption as it “relate[d] to hiring, which is a classic human resource function.” Id. at 686. The Portsmouth decision did not address the continued validity of Clay, but at minimum such records will now be subject to the privacy balancing test set forth above.
Second, while the Court stated that records “documenting the history or performance of a particular employee fall within the exemption for personnel files,” the Court’s failure in the Portsmouth case to categorically exempt the arbitration decision from disclosure means that such records do not automatically qualify as personnel records. This is difficult to reconcile with Pivero v. Largy, 143 N.H. 187 (1998), a decision only cited by the dissent in the Portsmouth case. In Pivero, the plaintiff sought to review an investigative file concerning an investigation into his own conduct, including the deputy chief’s written summary of a meeting with complaining witnesses that had been temporarily placed in his personnel file. Plaintiff based his request not on RSA 91-A but on RSA 275:56, which provides that employees are entitled (with some exceptions) to review their own personnel files, defined to include “personnel records . . . wherever located.” The superior court ordered the records produced, concluding that they qualified as part of the plaintiff’s personnel file. The Supreme Court reversed. The Court observed that while the summary itself had been in plaintiff’s personnel file at one time, it was not there at the time of the request. Moreover, the Court concluded, the documents sought were NOT personnel records:
Without further action, internal investigations of a police officer are not directly related to employment and do not constitute personnel records. . . Until an internal investigation produces information that results in the initiation of disciplinary process, public policy requires that internal investigation files remain confidential . . . and separate from personnel files.
143 N.H. at 191 (citing RSA 516:36 and Fenniman). Given the Pivero Court’s exclusion of these records from the definition of “personnel records,” government entities may be hard pressed to find the statutory underpinning to exempt disclosure of internal employment investigations under the personnel file exemption, particularly if the investigation does not result in discipline. Thus, government entities will need to rely on the more generic language of RSA 91-A:5 IV that exempts “confidential” information and the language exempting “other files whose disclosure would constitute invasion of privacy.”
Finally, the express purpose of 91-A, as emphasized by the Court in its latest decisions, underscores the presumption in favor of disclosure. As noted in Union Leader v. City of Nashua, 141 N.H. 473, 476 (1996): “When a public entity seeks to avoid disclosure of material under the Right-to-know Law, that entity bears a heavy burden to shift the balance toward nondisclosure.” Under the Portsmouth and Salem cases, that burden just became much harder.
Cullen Collimore Shirley pllc publishes analyses of recent legal developments for public review and consumption. The opinions expressed herein do not constitute legal advice nor form and attorney-client relationships. We encourage you to contact us or your counsel with any specific questions about the application of recent cases to specific situations.