Samuel Provenza v. Town of Canaan ( 2022 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Grafton
No. 2020-0563
SAMUEL PROVENZA
v.
TOWN OF CANAAN
Argued: October 20, 2021
Opinion Issued: April 22, 2022
Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and
orally), for the plaintiff.
Town of Canaan, filed no brief.
American Civil Liberties Union of New Hampshire Foundation, of
Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and
Henry R. Klementowicz orally), for the intervenor, Valley News.
Malloy & Sullivan, Lawyers Professional Corporation, of Hingham,
Massachusetts (Gregory V. Sullivan, on the brief) for Union Leader Corporation
and New England First Amendment Coalition as amici curiae.
MACDONALD, C.J. The plaintiff, Samuel Provenza, formerly employed as
a police officer by the defendant, Town of Canaan (Town), appeals an order of
the Superior Court (Bornstein, J.) that: (1) denied his petition for declaratory
judgment and “request for temporary and permanent injunctive and other
relief”; and (2) granted the cross-claim of the intervenor, the Valley News.
Provenza sought to bar public disclosure of an investigative report
commissioned by the Town as a result of a motor vehicle stop in which he was
involved while still employed by the Town as a police officer; the Valley News
sought release of the report under RSA chapter 91-A, the Right-to-Know Law.
See RSA ch. 91-A (2013 & Supp. 2021). We affirm.
I. Background
We summarize the pertinent facts found by the trial court or supported
by the record. On November 30, 2017, Provenza was involved in a motor
vehicle stop that received media coverage in the Upper Valley. Provenza was
responding to a call received by police dispatch about a suspicious vehicle
following a town school bus. He did not activate the camera in his cruiser
before responding. When he arrived at the location of the bus, he observed a
vehicle closely following the bus and initiated a traffic stop. The driver
explained that she was following the bus because her daughter had been
having issues with the school bus operator. When Provenza attempted to
arrest the driver of the vehicle, she physically resisted.
The driver subsequently filed a formal complaint against Provenza in
which she alleged that he had used excessive force. The Town commissioned
Municipal Resources, Inc. to investigate the encounter. Municipal Resources
filed a report (Report) with the Town. In February 2019, the Valley News filed a
Right-to-Know Law request seeking disclosure of the Report. The Town denied
the request, citing the “internal personnel practices” exemption set forth in RSA
91-A:5, IV (2013) and this court’s opinion in Union Leader Corp. v. Fenniman,
136 N.H. 624 (2007).
In June 2020, the Valley News renewed its request following our
decisions in Union Leader Corp. v. Town of Salem, 173 N.H. 345 (2020), and
Seacoast Newspapers v. City of Portsmouth, 173 N.H. 325 (2020). The Town
informed Provenza of the request and he then filed this lawsuit against the
Town seeking declaratory and injunctive relief under a variety of theories to
prevent the Town from releasing the Report. The Valley News filed a motion to
intervene, which the trial court granted. The Valley News then filed an
objection to Provenza’s request for injunctive relief and a cross-claim seeking a
ruling that the Report is subject to disclosure under the Right-to-Know Law.
The Valley News also argued that, because Provenza was not a “person
aggrieved” under RSA 91-A:7 (Supp. 2021), he did not have standing to bring
this action.
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In September 2020, the trial court held a hearing during which counsel
for Provenza, the Town, and the Valley News participated. At that hearing, the
parties agreed that the order to be issued by the trial court would serve “as a
final adjudication on the merits of both [Provenza]’s requests for declaratory
judgment and for preliminary and permanent injunctions and on the merits of
Valley News’s crossclaim.”
In its order, the trial court “assume[d] without deciding that [Provenza] is
a ‘person aggrieved’ within the meaning of RSA 91-A:7,” and “further rule[d]
that [Provenza] has standing to maintain this action under RSA 491:22 and
RSA 498:1.” After a detailed discussion of the analysis to be applied when
determining whether disclosure of public records constitutes an invasion of
privacy under RSA 91-A:5, IV, see Union Leader Corp. v. Town of Salem, 173
N.H. 345, 355 (2020), the court concluded that the Report was subject to
disclosure under the Right-to-Know Law. The Town requested that certain
medical information, license plate numbers, and the names of minors be
redacted from the Report. The Valley News did not object. The trial court
agreed that the information should be redacted, concluding that the privacy
interest in this information outweighed any public interest. Provenza then filed
this appeal.
II. Standard of Review
We defer to the trial court’s findings of fact if they are supported by the
evidence and are not erroneous as a matter of law. Town of Lincoln v.
Chenard, 174 N.H. 762, 765 (2022). We review the trial court’s interpretation
of statutes, including the Right-to-Know Law, de novo. 38 Endicott St. N., LLC
v. State Fire Marshall, 163 N.H. 656, 660 (2012); N.H. Ctr. for Pub. Interest
Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 652 (2020). We resolve
questions regarding the Right-to-Know Law with a view to providing the utmost
information in order to best effectuate the law’s statutory and constitutional
objectives. N.H. Ctr. for Pub. Interest Journalism, 173 N.H. at 653.
Accordingly, we construe provisions favoring disclosure broadly, while
construing exemptions restrictively. Id. When the facts are undisputed, we
review the trial court’s balancing of the public interest in disclosure and the
interests in nondisclosure de novo. N.H. Right to Life v. Dir., N.H. Charitable
Trusts Unit, 169 N.H. 95, 111 (2016). The party resisting disclosure bears a
heavy burden to shift the balance toward nondisclosure. Id.III. Analysis
The Right-to-Know Law provides: “Any person aggrieved by a violation of
this chapter may petition the superior court for injunctive relief.” RSA 91-A:7.
The Valley News argues that Provenza is not a “person aggrieved” under this
statute. The Valley News further contends that the exemptions set forth in the
Right-to-Know Law do not create statutory privileges that can be invoked to
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prevent a public body from disclosing information. It argues that exemptions
in the Right-to-Know Law “merely provide a license to a public body to withhold
information” — they do not prevent the public body “from voluntarily disclosing
any records, even if they are exempt.” Thus, the Valley News asserts, Provenza
lacked standing to bring this action.
In this case, the trial court granted the motion to intervene filed by the
Valley News. The Valley News then filed its claim against the Town pursuant to
RSA 91-A:7 in which it sought a ruling that the Report is a public record that
must be made available for inspection by the public under RSA chapter 91-
A. The trial court’s order reflects that Provenza’s petition and the Valley News’
claim were considered together at a hearing on September 15, 2020, with
agreement by the parties that the order of the trial court resulting from that
hearing would act as a final adjudication on the merits of both Provenza’s
petition and the Valley News’ Right-to-Know request.
In its order addressing whether disclosure of the Report would constitute
an invasion of privacy under RSA 91-A:5, IV, the trial court determined that
Provenza, “as the party opposing disclosure,” bore the heavy burden of
demonstrating that the materials should not be disclosed. See Union Leader
Corp. v N.H. Housing Fin. Auth., 142 N.H. 540, 554 (1997) (placing burden on
the private developer opposing release by the New Hampshire Housing Finance
Authority of documents sought by two newspapers pertaining to developer’s
housing developments). Thus, Provenza was treated as a party in the
proceedings in the claim filed by the Valley News. Accordingly, we conclude
that he was entitled to appeal the order granting the Valley News’ request. See
id. at 544-45 (deciding appeal filed by private developer of order requiring
disclosure of documents under Right-to-Know Law); cf. Seacoast Newspapers v.
City of Portsmouth, 173 N.H. 325, 330 (2020) (where newspaper sought copy of
arbitration decision involving former police officer and City answered that it did
not object to release of the decision, Union that represented officer allowed by
trial court to intervene in order to oppose newspaper’s Right-to-Know Law
petition). Provenza is able to raise all of his arguments under the Right-to-
Know Law in his appeal from the grant of the Valley News’ request. Therefore,
given the specific procedural history of this case, we need not decide whether
he was a “person aggrieved” under RSA 91-A:7.
We have not yet addressed whether RSA 91-A:7 provides a remedy for, and
grants standing to, an individual who seeks to prevent disclosure of
information pursuant to the Right-to-Know Law. Compare Campaign for
Accountability v. CCRF, 815 S.E.2d 841 (Ga. 2018) (holding that parties with
an interest in nondisclosure of public records pertaining to them may pursue a
lawsuit to seek compliance with the state Open Records Act), and Beckham v.
Bd. of Educ. of Jefferson Cty., 873 S.W.2d 575 (Ky. 1994) (holding that a party
affected by the decision of a public agency to release records pursuant to state
Open Records Act had standing to contest the agency decision in court), with
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Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (holding that federal Freedom of
Information Act does not provide a remedy for one who seeks to prevent
disclosure), and R.I Federation of Teachers v. Sundlun, 595 A.2d 799 (R.I.
1991) (holding that state Access to Public Records Act does not provide a
reverse remedy to prevent disclosure). The legislature may wish to consider
whether clarification as to who is entitled to seek relief under RSA 91-A:7 is
warranted.
We now turn to the question of whether the Report is subject to release
under the Right-to-Know Law. The purpose of RSA chapter 91-A “is to ensure
both the greatest possible public access to the actions, discussions and records
of all public bodies, and their accountability to the people.” RSA 91-A:1 (2013).
We note that no party argues that the Report is not a governmental record. See
RSA 91-A:1-a, III (2013). The legislature has recognized that certain
governmental records are exempt from disclosure under this chapter. See RSA
91-A:4, I (2013) (every citizen has right to inspect governmental records “except
as otherwise prohibited by statute or RSA 91-A:5”).
Although, in his brief, Provenza lists fifteen questions “presented for
review,” we conclude that determining whether the Report is subject to
disclosure requires resolution of the following: (1) whether RSA 105:13-b bars
disclosure; (2) whether RSA 516:36 and/or State Personnel Rules bar
disclosure; and (3) whether RSA 91-A:5, IV bars disclosure.
We begin by setting forth the language of RSA 91-A:5, IV in its entirety.
Provenza relies upon the emphasized language to support his claim that the
Report is exempt.
IV. Records 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. Without otherwise compromising
the confidentiality of the files, nothing in this paragraph shall
prohibit a public body or agency from releasing information relative
to health or safety from investigative files on a limited basis to
persons whose health or safety may be affected.
Provenza also argues that the trial court erred by failing to properly
consider RSA 105:13-b and RSA 516:36, II in its analysis. RSA 105:13-b
(2013), entitled “Confidentiality of Personnel Files,” provides:
I. Exculpatory evidence in a police personnel file of a police officer
who is serving as a witness in any criminal case shall be disclosed to the
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defendant. The duty to disclose exculpatory evidence that should have
been disclosed prior to trial under this paragraph is an ongoing duty that
extends beyond a finding of guilt.
II. If a determination cannot be made as to whether evidence is
exculpatory, an in camera review by the court shall be required.
III. No personnel file of a police officer who is serving as a witness
or prosecutor in a criminal case shall be opened for the purposes of
obtaining or reviewing non-exculpatory evidence in that criminal case,
unless the sitting judge makes a specific ruling that probable cause
exists to believe that the file contains evidence relevant to that criminal
case. If the judge rules that probable cause exists, the judge shall order
the police department employing the officer to deliver the file to the
judge. The judge shall examine the file in camera and make a
determination as to whether it contains evidence relevant to the criminal
case. Only those portions of the file which the judge determines to be
relevant in the case shall be released to be used as evidence in
accordance with all applicable rules regarding evidence in criminal cases.
The remainder of the file shall be treated as confidential and shall be
returned to the police department employing the officer.
RSA chapter 516, “Witnesses,” is found in Title LIII of the Revised
Statutes Annotated, which is entitled “Proceedings in Court.” RSA 516:36
(2021) provides:
516:36 Written Policy Directives to Police Officers and
Investigators.
I. In any civil action against any individual, agency or
governmental entity, including the state of New Hampshire, arising
out of the conduct of a law enforcement officer having the powers
of a peace officer, standards of conduct embodied in policies,
procedures, rules, regulations, codes of conduct, orders or other
directives of a state, county or local law enforcement agency shall
not be admissible to establish negligence when such standards of
conduct are higher than the standard of care which would
otherwise have been applicable in such action under state law.
II. All records, reports, letters, memoranda, and other documents
relating to any internal investigation into the conduct of any
officer, employee, or agent of any state, county, or municipal law
enforcement agency having the powers of a peace officer shall not
be admissible in any civil action other than in a disciplinary action
between the agency and its officers, agents, or employees. Nothing
in this paragraph shall preclude the admissibility of otherwise
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relevant records of the law enforcement agency which relate to the
incident under investigation that are not generated by or part of
the internal investigation. For the purposes of this paragraph,
“internal investigation” shall include any inquiry conducted by the
chief law enforcement officer within a law enforcement agency or
authorized by him.
A. RSA 105:13-b
Provenza argues that RSA 105:13-b creates an exception to the Right-to-
Know Law that applies to the Report. However, by its express terms, RSA
105:13-b “pertains only to information maintained in a police officer’s
personnel file.” N.H. Ctr. for Pub. Interest Journalism, 173 N.H. at 656. As we
stated in N.H. Center for Public Interest Journalism, “[h]ad the legislature
intended RSA 105:13-b to apply more broadly to personnel information,
regardless of where it is maintained, it would have so stated.” Id. Here, the
trial court found that “there is nothing in the record to suggest that the Report
is contained in or is a part of [Provenza’s] personnel file.” On appeal, Provenza
has not demonstrated that this finding is unsupported by the evidence or
erroneous as a matter of law. Accordingly, the Report is not exempt from
disclosure under the Right-to-Know Law by RSA 105:13-b.
Provenza also relies upon Pivero v. Largy, 143 N.H. 187 (1998), which
considered an officer’s right under RSA 275:56 (1987) to obtain a copy of an
internal investigation that concluded that complaints against the officer were
unfounded. After concluding that the records were not covered by that statute,
we observed in dicta that “[u]ntil an internal investigation produces information
that results in the initiation of a disciplinary process, public policy requires
that internal investigation files remain confidential.” Pivero, 143 N.H. at 191.
The public policy considerations included “instilling confidence in the public to
report, without fear of reprisal, incidents of police misconduct to internal
affairs,” and preventing disclosure of confidential internal affairs matters that
could seriously hinder an ongoing investigation or future law enforcement
efforts. Id.In Pivero, we observed that police internal investigative files were
categorically exempt from disclosure under RSA 91-A:5, citing Union Leader
Corp. v. Fenniman, 136 N.H. 624 (1993). Fenniman had so held, based upon
the court’s belief that the legislature had “plainly made its own determination”
that such documents should be categorically exempt. Fenniman, 136 N.H. at
627. Accordingly, we had no cause to consider the appropriate analysis to
apply under the Right-to-Know Law, as that issue had been previously settled
in Fenniman.
In Union Leader Corp. v. Town of Salem, 173 N.H. 345 (2020), we
overruled Fenniman to the extent that it decided that records are categorically
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exempt from disclosure under the Right-to-Know Law instead of being subject
to a balancing test to determine whether they are exempt from disclosure.
Thus, the statement in Pivero that police internal investigative files were
categorically exempt from disclosure under RSA 91-A:5, which was supported
by citation to Fenniman, is no longer good law. Understood in that light, the
public policy considerations identified in Pivero may still support maintaining
the confidentiality of internal investigation files, see Union Leader Corp., 173
N.H. at 355 (noting one test to determine whether material is “confidential” is
whether disclosure is likely to impair the government’s ability to obtain
necessary information in the future), but no longer are such files categorically
exempt from disclosure under the Right-to-Know Law. Establishing that
records are “confidential” by itself does not result in their being exempt from
disclosure under the Right-to-Know Law — rather, that determination involves
the three-step analysis that the trial court undertook in this case. See id.
B. RSA 516:36 and State Personnel Rules
Nor does RSA 516:36 support Provenza’s request for relief. The language
of this statute makes clear that it governs information sought for use in the
course of civil litigation. Petition of N.H. Div. of State Police, 174 N.H. 176, 185
(2021). It is limited to questions of admissibility. As the Valley News notes in
its brief, information can be both inadmissible in court under RSA 516:36, and
public under the Right-to-Know Law. Contrary to Provenza’s argument, we
agree with the trial court that because RSA 516:36 governs admissibility, it
“has no bearing on the Right-to-Know analysis.”
Provenza also argues that, because he is currently employed as a State
Trooper with the New Hampshire Department of Safety, rules adopted by the
New Hampshire Division of Personnel that require the State to keep
investigations confidential and separate from a State employee’s personnel file
unless discipline is issued prevent disclosure of the Report. See N.H. Admin.
R. Per 1501.04. We disagree. Given that there is no dispute that the Report
was commissioned by the Town to investigate actions taken by Provenza while
employed by the Town and also prepared during his employment with the
Town, we conclude that the State’s personnel rules also do not apply. See N.H.
Admin. R. Per 101.02.
C. RSA 91-A:5, IV
Turning to RSA 91-A:5, IV, as we earlier observed, the purpose of the
Right-to-Know Law is to ensure both the greatest possible public access to the
actions, discussions and records of all public bodies, and their accountability
to the people. RSA 91-A:1. “The party resisting disclosure bears a heavy
burden to shift the balance toward nondisclosure.” Union Leader v. N.H.
Housing Fin. Auth., 142 N.H. at 554 (quotation omitted). We have previously
recognized that an “expansive construction” of the language in RSA 91-A:5, IV
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that establishes exemptions would allow “the exemption to swallow the rule
and is inconsistent with the purposes and objectives of the right-to-know law.”
Mans v. Lebanon School Bd., 112 N.H. 160, 162 (1972); see Herron v.
Northwood, 111 N.H. 324, 327 (1971) (observing that the legislature “has
placed a high premium on the public’s right to know”).
Here, Provenza contends that the trial court erred in its balancing of the
public right to access governmental information against his privacy interests.
Courts must engage in a three-step analysis when considering whether
disclosure of public records constitutes an invasion of privacy under RSA 91-
A:5, IV. Union Leader Corp. v. Town of Salem, 173 N.H. at 355. This
balancing test applies to all categories of records enumerated in RSA 91-A:5,
IV. See id. at 357; N.H. Ctr. for Pub. Interest Journalism v. N.H. Dep’t of
Justice, 173 N.H. at 659. First, the court evaluates whether there is a privacy
interest that would be invaded by the disclosure. Union Leader, 173 N.H. at
355. Second, the court assesses the public interest in disclosure. Id. Third,
the court balances the public interest in disclosure against the government’s
interest in nondisclosure and the individual’s interest in nondisclosure. Id.
On appeal, in the absence of disputed facts, we review the trial court’s
balancing of the public interest in disclosure and the interests in nondisclosure
de novo. Union Leader v. N.H. Housing Fin. Auth., 142 N.H. at 555.
We conclude that Provenza’s privacy interest here is not weighty. As the
trial court explained, the Report does not reveal intimate details of Provenza’s
life, see N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 441
(2003), but rather information relating to his conduct as a government
employee while performing his official duties and interacting with a member of
the public. Cf. Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106, 113 (2005)
(noting that purpose of Right-to-Know Law is to ensure that government’s
activities be open to the sharp eye of public scrutiny, not that information
about private citizens that happens to be in the warehouse of the government
be so disclosed); Kroeplin v. Wis. Dep’t of Natural Resources, 725 N.W.2d 286,
301 (Wis. App. 2006) (stating that when an individual “becomes a law
enforcement officer, that individual should expect that his or her conduct will
be subject to greater scrutiny. That is the nature of the job.”).
With respect to the government’s interest in nondisclosure, we first note
that the Town makes no argument on appeal that it has any interest in
nondisclosure. Indeed, the Town has filed neither a brief nor a memorandum
of law in this court. Rather, before the trial court, the Town requested that
certain information — specifically, medical information, license plate numbers,
and the names of minors — be redacted from the Report. Without objection,
the trial court agreed that those redactions would be made. To the extent that
Provenza argues that the government has an interest in nondisclosure because
disclosure will have a chilling effect on future investigations, we agree with the
Valley News that Provenza has not carried his burden of demonstrating that
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disclosure, in light of the facts of this case, is likely to have any such chilling
effect. Cf. Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 556
(2002) (stating that there was no evidence establishing a likelihood that
disclosure would lead auditors to refrain from being candid and forthcoming).
As for the public interest in disclosure, we conclude that it is significant.
The public has a substantial interest in information about what its government
is up to, see Lamy, 152 N.H. at 111, as well as in knowing whether a
government investigation is comprehensive and accurate, see Reid v. N.H.
Attorney Gen., 169 N.H. 509, 532 (2016). In balancing the interests in
disclosure and nondisclosure, the trial court concluded that Provenza failed to
carry his heavy burden of shifting the balance toward nondisclosure. After
considering all of the arguments of the parties, we reach the same result.
Lastly, we note that Provenza argues that disclosure of the Report will
violate his right to procedural due process. We conclude that this argument
lacks merit, and warrants no further discussion. See Garrison v. Town of
Henniker, 154 N.H. 26, 35 (2006). Accordingly, the decision of the trial court is
affirmed.
Affirmed.
HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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