Thomas Reid v. New Hampshire Attorney General

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2015-0499
THOMAS REID
v.
NEW HAMPSHIRE ATTORNEY GENERAL
Argued: June 9, 2016
Opinion Issued: December 23, 2016
Reid Law, PLLC, of Concord (Thomas Reid on the brief and orally), for the
plaintiff.
Joseph A. Foster, attorney general (Francis C. Fredericks, assistant
attorney general, and Nancy Smith, senior assistant attorney general, on the
brief, and Mr. Fredericks orally), for the defendant.
LYNN, J. The plaintiff, Thomas Reid, appeals the decision of the
Superior Court (Smukler, J.) denying his petition under the Right-to-Know
Law, RSA chapter 91-A, to compel the defendant, New Hampshire Attorney
General Joseph Foster, to produce unredacted records of the Attorney
General’s investigation into alleged wrongdoing by former Rockingham County
Attorney James Reams. We vacate and remand.
I
The pertinent facts are as follows. Prior to November 6, 2013, the
plaintiff served as the Deputy County Attorney for Rockingham County under
County Attorney Reams. On that date, the defendant, claiming to act under
authority granted by RSA 7:6 (2013), 7:11 (2013), and 7:34 (2013), suspended
the criminal law enforcement authority of the county attorney.
Simultaneously, the defendant placed the plaintiff on paid suspension. At the
defendant’s request, the Rockingham County Commissioners barred Reams
from entering his office. It appears from the plaintiff’s allegations and a
memorandum of law filed by the county commissioners in a related case that
the plaintiff also was barred from the Rockingham County Attorney’s Office at
the defendant’s behest. Also at the defendant’s request, the superior court
appointed an assistant attorney general to serve as interim county attorney for
Rockingham County. See RSA 7:33 (2013). The defendant, acting in
conjunction with the U.S. Attorney’s Office and the Federal Bureau of
Investigation, conducted a criminal investigation of Reams that lasted until
approximately March of 2014. The plaintiff resigned his position as deputy
county attorney on January 17, 2014.
While the criminal investigation was ongoing, Reams instituted lawsuits
against the defendant and the county commissioners, asserting that their
actions were unlawful and seeking reinstatement to his position as county
attorney and access to his office. Based, in part, on the ongoing criminal
investigation, the Superior Court (McNamara, J.) denied Reams’s requests for
preliminary injunctive relief and to conduct discovery.
On March 11, 2014, the defendant and the county commissioners filed a
complaint asking the superior court to remove Reams from office pursuant to
RSA 661:9, IV (2008). On March 26, the defendant informed the trial court
that the criminal investigation had been concluded and that no criminal
charges had been or would be brought against Reams. Because the criminal
investigation was concluded, the trial court determined that there was no need
for discovery in Reams’s lawsuits seeking reinstatement to office.
By order of April 10, 2014, the court ruled that Reams’s continued
suspension from office was unlawful, and that he must be reinstated as
Rockingham County Attorney and allowed access to his office. The court
stayed its order for thirty days so as to permit the attorney general and the
county commissioners to appeal and request a further stay from this court.
The attorney general and the county commissioners did appeal to this court
2
and sought an extension of the stay—relief which we denied.1 On June 18,
2014, both proceedings were settled.
On April 17, 2014, the plaintiff submitted a request for disclosure of the
defendant’s records concerning the investigation of Reams. Specifically, the
plaintiff sought the following materials:
 investigative reports, interview notes, memos, emails,
recordings or other records relied upon as the basis for
suspending the plaintiff’s law enforcement authority;
 a recitation of all information possessed by the defendant on
November 6, 2013, that led him to conclude that a criminal
investigation of Reams should be initiated;
 all information, documents and records that justified the
assignment of a state trooper to the Rockingham County
Courthouse over the evening of November 6 - 7, 2013, to
prevent tampering with records;
 information clarifying whether the county commissioners barred
him from his office on their own initiative or at the request of
the attorney general;
 copies of any and all warrants, consents, or reports pertaining
to the search of the plaintiff’s office and the seizure of items
therefrom, a listing of the seized items, and return of said items
to the plaintiff;
 records, interviews or reports reflecting any acts of
discrimination that occurred at the Rockingham County
Attorney’s Office during the years 2012 and 2013;
 any and all information related to a 2012 call to the Attorney
General’s Office by Rockingham County Commissioner Barrows
with respect to a referral to the County Human Resources
Department of a retaliation claim against a County Attorney’s
Office employee for an earlier discrimination complaint made by
the employee’s girlfriend (also a County Attorney’s Office
employee) against Reams, as well as information concerning
leaks about the Human Resources investigation made to the
press and/or to State Representative Laura Pantelakos; and
 any and all documents, interviews or records showing that
Reams had retaliated against any County Attorney’s Office
1 See Rockingham County Attorney v. Rockingham County Commissioners; Rockingham County
Attorney v. New Hampshire Attorney General, No. 2014-0247 (N.H. April 24, 2014). Our order
did, however, stay processing of the appeal pending the conclusion of the removal action in the
superior court. We ruled that if the court’s final decision in the removal action was appealed to
this court, we would consolidate the appeals in both cases, and that if the removal action was not
appealed, we would then reactivate the appeal in Case No. 2014-0247 at the request of the
appellants.
3
employee as a result of the 2012 County Human Resources
Department investigation or showing that there was reason to
believe employees of the County Attorney’s Office would be
retaliated against if Reams was allowed to return to his
position.
In a second request to the defendant, dated April 24, 2014, the plaintiff
sought additional materials, including:
 all records, reports or interviews related to Reams’s alleged
modification of the supervisory duties of a County Attorney’s
Office employee who, in 1999, had complained to the Attorney
General’s Office about the sexual harassment of female
employees by Reams, as well as records regarding Reams’s
alleged actions in causing this employee to be terminated from
another job she held after leaving the County Attorney’s Office;
and
 the return to the plaintiff of the personal and supervisory notes
he had compiled during his tenure as Deputy County Attorney.
The defendant timely responded to the requests, indicating that he would
require a minimum of 30 days to compile and review the requested records.
See RSA 91-A:4, IV (2013). When no further response was received from the
defendant for a period of approximately seven months, the plaintiff instituted
the present action. The defendant moved to dismiss, acknowledging that he
had not timely supplemented his initial response, but arguing that he had
otherwise acted reasonably and had not improperly withheld any information.
The defendant represented that, as of December 20, 2014, he had begun the
first phase of a “rolling production” of materials that consisted of the disclosure
of 1293 pages of documents. The defendant requested that the court review in
camera materials that he had submitted or proposed to submit in redacted
form, so as to determine the propriety of the redactions.
By order dated January 14, 2015, the trial court ruled that the defendant
had violated the Right-to-Know Law by failing to timely supplement his
response to the plaintiff’s requests. As relief, the court awarded the plaintiff
his costs. However, the court declined to review redacted documents in
camera. Instead, it directed the defendant to provide a “thorough affidavit”
supporting his redactions, which the court indicated it would review to
determine whether the defendant had sustained his burden of proof.2
2The court also denied the plaintiff’s request for the assessment of a civil penalty, finding that the
defendant had not acted in bad faith. In addition, the court denied the plaintiff’s request for
attorney’s fees on the grounds that the plaintiff was self-represented.
4
The defendant responded by filing a final status report, affidavit, and
request for dismissal on February 13, 2015. The affidavit, by Associate
Attorney General Anne Edwards, identified the following nine legal bases upon
which information had been withheld or redacted: (1) personnel information,
under RSA 91-A:5, IV; (2) medical information, under RSA 91-A:5, IV; (3) grand
jury records, under RSA 91-A:5, I; (4) financial information, under RSA 91-A:5,
IV; (5) “[i]ndividual citizens’ private information,” the disclosure of which would
constitute an invasion of privacy, under RSA 91-A:5, IV; (6) drafts, under RSA
91-A:5, IX; (7) notes, under RSA 91-A:5, VIII; (8) attorney work product, under
RSA 91-A:5, IV and VII; and (9) confidential records, under RSA 91-A:5, IV and
RSA 651:5. A master list of Bates-numbered documents, submitted as an
exhibit to the affidavit, indicated which one or more of the foregoing legal bases
for exemption was claimed for each document or category of documents listed.
Finally, the defendant requested that the case be dismissed because, it
claimed, it had “now responded fully to Mr. Reid’s request and the Court
Order” of January 14, 2015.
The plaintiff objected, and requested, among other things, additional
time “to review the voluminous materials and provide a more comprehensive
status report.” The request for additional time was granted and, thereafter, the
plaintiff filed a motion to compel production of a complete index of records and
a motion to compel production of unredacted documents. In his motion to
compel production of documents, the plaintiff specifically challenged only one
of the defendant’s asserted bases of exemption; namely, the exemption claimed
under RSA 91-A:5, IV for “personnel information.” The defendant objected to
both motions.
On July 10, 2015, the trial court denied the plaintiff’s motions. The
court denied the motion for production of a more detailed index “[b]ecause the
defendant has already complied with a previous court order requiring
production of an index.” It denied the motion to compel production of
unredacted documents on the basis that the documents sought were exempt
from disclosure under the Right-to-Know Law. Specifically, the court ruled:
Here, the records at issue relate to the defendant’s
investigation into misconduct alleged to have been committed by
Reams. This investigation, which was conducted jointly with
Rockingham County, consisted of interviews with present and
former employees. The subject directly involved the Rockingham
County Attorney’s Office’s personnel practices, including specific
instances of conduct involving employee discipline and certain
reports to the Rockingham County . . . human resources office.
The court concluded that “[t]he defendant’s redactions fall within the purview
of RSA 91-A:5, IV.” This appeal followed.
5
II
On appeal, the plaintiff argues: (1) that the trial court’s ruling violates
Part I, Article 8 of the New Hampshire Constitution; (2) that the trial court
erred in determining that the investigative records at issue were “[r]ecords
pertaining to internal personnel practices,” RSA 91-A:5, IV (2013), because the
attorney general’s investigation cannot be considered “internal”; and (3) that
the trial court erred in finding that the attorney general’s investigation of
Reams was “conducted jointly with Rockingham County.” “Because we decide
cases on constitutional grounds only when necessary,” Chatman v. Strafford
County, 163 N.H. 320, 322 (2012), we will first address the plaintiff’s second
argument, which raises an issue of statutory interpretation.
The interpretation of a statute is to be decided ultimately by this
court. The ordinary rules of statutory construction apply to our
review of the Right-to-Know Law, and we accordingly look to the
plain meaning of the words used. To advance the purposes of the
Right-to-Know Law, we construe provisions favoring disclosure
broadly and exemptions narrowly.
Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996) (quotation and
citations omitted).
At issue is the interpretation of RSA 91-A:5, IV, which provides, in
pertinent part, an exemption from disclosure under the Right-to-Know Law for:
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.
RSA 91-A:5, IV. The trial court, relying upon our decisions in Union Leader
Corp. v. Fenniman, 136 N.H. 624 (1993), and Hounsell v. North Conway Water
Precinct, 154 N.H. 1 (2006), found that the subject of the investigative records
at issue “directly involved the Rockingham County Attorney’s Office’s personnel
practices.”
The plaintiff argues that the trial court erroneously “applied a subject
matter exemption contrary to the plain language of RSA 91-A:5[,] IV.” In
particular, the plaintiff contends that the “operative term” in the exemption at
issue is “internal,” and argues that the trial court both “failed to give weight” to
that term and interpreted the statute so as to render the term superfluous.
Fundamentally, the plaintiff’s argument is that records of the defendant’s
6
investigation of Reams do not “pertain[] to internal personnel practices,” RSA
91-A:5, IV (emphasis added), because “[t]he Attorney General is simply not the
County Attorney’s employer.” We agree with the plaintiff’s statutory
interpretation and, therefore, we vacate and remand for further proceedings.
To explain our reasoning, however, we must first examine the two cases upon
which the trial court relied.
The first is Fenniman, in which the plaintiff sought the disclosure under
the Right-to-Know Law of “certain investigatory documents under the control
of” the Dover Police Department and its chief. Fenniman, 136 N.H. at 625.
The documents had been “compiled during an internal investigation of a
department lieutenant accused of making harassing phone calls.” Id. We held
that the documents fell within the exemption for “[r]ecords pertaining to
internal personnel practices” under RSA 91-A:5, IV. Id. at 626 (quotation
omitted).
We noted that “[t]his particular portion of . . . [the statute had] not been
construed by this court and is neither explained nor defined by the statute,”
and, therefore, we relied upon the plain meaning of the words used. Id. We
stated that “[a]lthough we generally interpret the exemptions in RSA chapter
91-A restrictively to further the purposes of the Right-to-Know Law, the plain
meanings of the words ‘internal,’ ‘personnel,’ and ‘practices’ are themselves
quite broad.” Id. at 626 (citation omitted). But cf., e.g., Union Leader Corp. v.
N.H. Housing Fin. Auth., 142 N.H. 540, 552 (1997) (stating that “[a]n expansive
construction of the[] terms [‘confidential, commercial, or financial’ in RSA 91-
A:5, IV] must be avoided, since to do otherwise would allow the exemption to
swallow the rule and is inconsistent with the purposes and objectives of RSA
chapter 91-A” (quotation and brackets omitted)). We then concluded that the
files at issue “plainly ‘pertain[] to internal personnel practices’ because they
document procedures leading up to internal personnel discipline, a
quintessential example of an internal personnel practice.” Fenniman, 136 N.H.
at 626. We further held that “[a]lthough 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. at 627 (citations omitted).
As the foregoing demonstrates, in interpreting the “internal personnel
practices” exemption in Fenniman, we twice departed from our customary
Right-to-Know Law jurisprudence by declining to interpret the exemption
narrowly and declining to employ a balancing test in determining whether to
apply the exemption. In addition, 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 whose
disclosure would constitute invasion of privacy.” RSA 91-A:5, IV; see Appeal of
Cover, 168 N.H. 614, 618 (2016) (noting that when interpreting a statute, “we
7
do not consider words and phrases in isolation, but rather within the context of
the statute as a whole” (quotation omitted)). Thus, we did not examine whether
a broad, categorical interpretation of “internal personnel practices” might
render the exemption for “personnel . . . files whose disclosure would constitute
invasion of privacy” in any way redundant or superfluous. See Winnacunnet
Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525-26 (2002) (noting that
“[w]hen construing a statute, we must give effect to all words in [the] statute
and presume that the legislature did not enact superfluous or redundant
words”); cf. Shapiro v. U.S. Dept. of Justice, 153 F. Supp. 3d 253, 280 (D.D.C.
2016) (noting that “Exemption 6 [of the federal Freedom of Information Act],
which shields ‘personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal [privacy]’
. . . would have little purpose if agencies could simply invoke Exemption 2
[which shields, inter alia, records that relate solely to internal personnel rules
and practices] to protect any records that are used only for ‘personnel’-related
purposes”).
Moreover, although the practice of consulting decisions from other
jurisdictions interpreting similar statutes is common in our Right-to-Know Law
jurisprudence, we did not conduct such an inquiry in Fenniman. See, e.g.,
Murray v. N.H. Div. of State Police, 154 N.H. 579, 581 (2006) (noting that in
interpreting the Right-to-Know Law, “[w]e also look to the decisions of other
jurisdictions, since other similar acts, because they are in pari materia, are
interpretatively helpful, especially in understanding the necessary
accommodation of the competing interests involved” (quotation omitted)).
Specifically, we have looked to federal law, see, e.g., Montenegro v. City of
Dover, 162 N.H. 641, 650 (2011), having noted that “[t]he exemption provisions
of our right-to-know law, RSA 91-A:5, IV (supp.), are similar to the Federal
Freedom of Information Act, 5 U.S.C.A. [§] 552(b)(2), (4) and (6),” Mans v.
Lebanon School Bd., 112 N.H. 160, 162-63 (1972).
The Freedom of Information Act (FOIA) exemption contained in 5 U.S.C.
§ 552(b)(2) is worded similarly to the portion of RSA 91-A:5, IV at issue here;
specifically, it exempts from disclosure under the FOIA matters “related solely
to the internal personnel rules and practices of an agency.” 5 U.S.C.
§ 552(b)(2) (2012). Nevertheless, our construction of the “internal personnel
practices” exemption in RSA 91-A:5, IV is markedly broader than the United
States Supreme Court’s interpretation of that exemption’s federal counterpart.
See Dept. of Air Force v. Rose, 425 U.S. 352, 369-70 (1976) (noting that “the
general thrust of the [5 U.S.C. § 552(b)(2)] exemption is simply to relieve
agencies of the burden of assembling and maintaining for public inspection
matter in which the public could not reasonably be expected to have an
interest”);3 Milner v. Department of Navy, 562 U.S. 562, 566 (2011) (reaffirming
3 The Rose Court relied upon the Senate Report on the bill enacted and codified as 5 U.S.C.
§ 552(b)(2), Rose, 425 U.S. at 367, which gave, as examples of material covered by Exemption
8
the narrow scope of Exemption 2 by rejecting a line of federal cases recognizing
a so-called “High 2” exemption for “any predominantly internal materials whose
disclosure would significantly risk circumvention of agency regulations or
statutes” (quotations, citation, footnote and brackets omitted)).4
We continued our broad interpretation of RSA 91-A:5, IV’s “internal
personnel practices” exemption in the second case relied upon by the trial
court: Hounsell v. North Conway Water Precinct. Hounsell involved a Right-to-
Know Law request for an investigative report prepared for the defendant North
Conway Water Precinct (precinct) by outside investigators. Hounsell, 154 N.H.
at 2-3. Specifically, following an allegation by a precinct employee “that he had
been threatened and harassed by a co-worker,” the precinct’s legal counsel
“retained Jack Hunt and John Alfano to investigate the complaint.” Id. at 2.
Hunt and Alfano interviewed precinct employees and then “prepared a report in
which they summarized the investigation and made findings and
recommendations (Hunt-Alfano report).” Id.
We affirmed the trial court’s denial of the Right-to-Know petition, id. at 7,
holding, in relevant part, that, “as in Fenniman, the Hunt-Alfano report, which
was generated in the course of an investigation of claimed employee
misconduct, was a record pertaining to ‘internal personnel practices.’” Id. at 4.
We also rejected the petitioners’ contention that “the investigation lost its
‘internal status’ because,” among other things, “the precinct contracted with
outside investigators.” Id. at 5. We found that argument “unpersuasive . . .
because nothing in the plain language of RSA 91-A:5, IV restricts a public body
or agency from asserting an exemption under these circumstances, and the
petitioners have presented no legal authority in support of their contentions.”
Id. at 5.
Against this legal backdrop, we now consider whether the “internal
personnel practices” portion of RSA 91-A:5, IV exempts the materials at issue.
Neither party has asked us to reconsider Fenniman or Hounsell, and we will
not do so sua sponte. At this juncture, stare decisis impels us to follow
Fenniman and Hounsell in treating “procedures leading up to internal
personnel discipline”—in particular, an investigation into employee
misconduct—as a personnel practice. Fenniman, 136 N.H. at 626.
Nevertheless, we decline to extend Fenniman and Hounsell beyond their own
2, “‘rules as to personnel’s use of parking facilities or regulations of lunch hours, statements of
policy as to sick leave, and the like.’” Id. at 363 (quoting S. Rep. No. 813, 89th Cong., 1st
Sess., 8 (1965)).
4 In so holding, the Court stated that “Exemption 2, consistent with the plain meaning of the term
‘personnel rules and practices,’ encompasses only records relating to issues of employee relations
and human resources.” Milner, 562 U.S. at 581. While this statement may appear to suggest a
broader interpretation of Exemption 2 than that in Rose, it has been noted that “[t]he modest
difference in judicial approaches taken in the Rose and Milner decisions does not come close to
undermining the Rose holding.” Shapiro, 153 F. Supp. 3d at 279.
9
factual contexts and, in further interpreting RSA 91-A:5, IV herein, we return
to our customary standards for construing the Right-to-Know Law.
The plaintiff distinguishes Hounsell by noting that in that case, “the
investigators had been retained by the employer and acted on behalf of the
employer.” He argues that “[t]he mere fact that an investigation could result in
disciplinary action, standing alone, is not enough to qualify an investigation as
a record pertaining to ‘internal personnel practices.’ We agree that Hounsell is
distinguishable and that the distinction turns upon the statutory term
“internal.” RSA 91-A:5, IV.
“When interpreting a statute, we first look to the plain meaning of the
words used and will consider legislative history only if the statutory language is
ambiguous.” Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 676
(2011) (quotation omitted). In Fenniman, we stated that “the plain meanings of
the words ‘internal,’ ‘personnel,’ and ‘practices’ are . . . quite broad,” but went
no further in defining or examining those terms. Fenniman, 136 N.H. at 626.
Looking now to how the words are used in the statute, we note that the terms
“internal” and “personnel” modify the word “practices,” thereby circumscribing
the provision’s scope. Cf. Milner, 562 U.S. at 569 (observing that 5 U.S.C.
§ 552(b)(2) uses the term “‘personnel’ . . . as an adjective . . . to modify ‘rules
and practices’” and that the term is “the one that most clearly marks the
provision’s boundaries”).
In construing the term “personnel” as used in the FOIA, the Supreme
Court noted that “[w]hen used as an adjective, . . . th[e] term refers to human
resources matters. ‘Personnel,’ in this common parlance, means ‘the selection,
placement, and training of employees and . . . the formulation of policies,
procedures, and relations with [or involving] employees or their
representatives.’” Id. (quoting Webster’s Third New International Dictionary
1687 (1966)). The Court accordingly determined that “[a]n agency’s ‘personnel
rules and practices,’” for purposes of exemption 2 of the FOIA, “are its rules
and practices dealing with employee relations or human resources. . . . They
concern the conditions of employment in federal agencies—such matters as
hiring and firing, work rules and discipline, compensation and benefits.” Id. at
570. In general, then, the term “personnel” relates to employment. Indeed,
this is the meaning we implicitly gave the term in Fenniman and Hounsell.
See, e.g., Hounsell, 154 N.H. at 4 (noting that, “as in Fenniman, the Hunt-
Alfano report, which was generated in the course of an investigation of claimed
employee misconduct, was a record pertaining to ‘internal personnel practices’”
(emphasis added)).
“Internal” is defined to mean “existing or situated within the limits . . . of
something.” Webster’s Third New International Dictionary 1180 (unabridged
ed. 2002). Employing the foregoing definitions, we construe “internal
personnel practices,” to mean practices that “exist[] or [are] situated within the
10
limits” of employment. Id. Accordingly, while we follow Fenniman and
Hounsell in treating an investigation into employee misconduct as a personnel
practice, we now clarify that the investigation must take place within the limits
of an employment relationship. In other words, the investigation must be
conducted by, or as in Hounsell, on behalf of,5 the employer of the
investigation’s target. See Hounsell, 154 N.H. at 2, 4-5. Such a construction is
not only consistent with the plain language of RSA 91-A:5, IV, but also follows
our practice of “resolv[ing] questions regarding the Right-to-Know law with a
view to providing the utmost information in order to best effectuate the
statutory and constitutional objective of facilitating access to all public
documents.” N.H. Retirement Sys., 162 N.H. at 676 (quotation and brackets
omitted).
The plaintiff argues that the investigation into Reams’s alleged
misconduct was not an “internal” one because it was conducted by the
defendant, who was not Reams’s employer. The defendant neither directly
asserts that he was Reams’s employer nor explicitly concedes that he was not.
Rather, the defendant contends that the attorney general’s interests “in the
effective operation of the [Rockingham County Attorney’s Office] do not differ
from the interests of an employer.” The defendant further asserts that the
plaintiff’s “argument that the records are not exempt because the [attorney
general’s office] did not employ the witnesses at issue is . . . in error because an
investigation into management and operational issues that impact the office’s
prosecutorial effectiveness is within the [attorney general’s office’s] statutory
authority.”
We have not previously decided whether the county attorneys are
employees of the attorney general. Cf. State v. Dexter, 136 N.H. 669, 673
(1993) (finding it unnecessary to decide, even assuming attorney’s fees were
recoverable for county attorney’s alleged bad faith litigation, whether such fees
would be “properly recoverable from the State or the county”). In Samaha v.
Grafton County, 126 N.H. 583 (1985), we held that the plaintiff, when
employed as clerk of superior court sitting in Grafton County, “was not an
employee of Grafton County.” Samaha, 126 N.H. at 586. We reasoned:
In determining whether an employer-employee relationship exists,
courts generally consider factors such as managerial and fiscal
control. During his service there, the county did not have the right
to exercise fiscal or managerial control over the plaintiff, nor the
power to set his salary, hire or fire him. These functions were
5 In Hounsell, the precinct’s legal counsel “retained” the outside third parties “to investigate [an
employee’s] complaint of harassment” by a co-worker. Hounsell, 154 N.H. at 2. The implication is
that the outside investigators neither initiated the investigation nor conducted it for their own
purposes, but rather, that they acted solely on behalf of the precinct. See id.
11
performed by the superior court, acting as a body. RSA 499:1, :12.
N.H. [CONST.] pt. II, art. 82.
Id. (citations omitted).
Considering the factors we employed in Samaha with respect to the
instant case, we note that the attorney general does not hire county attorneys.
Rather, each county attorney is “elected biennially by the voters of the county.”
RSA 7:33 (2013); see also RSA 653:1, V (2016). Vacancies or temporary
absences in the office of county attorney are filled either by the superior court
or by majority vote of the members of the county convention, in accordance
with the provisions of RSA 7:33 and RSA 661:9 (2016). Nor does the attorney
general have the authority to fire a county attorney. See Eames v. Rudman,
115 N.H. 91, 93 (1975) (noting that attorney general has no power to remove
the county attorney from office). The attorney general may “temporarily
suspend [a] county attorney from exercising his criminal law enforcement
authority,” but the “power to remove [a] county attorney from office . . . is
vested in the superior court.” Id. at 91, 93; RSA 661:9, IV (providing that “[a]ny
officer of a county . . . may be removed by the superior court for official
misconduct”). Finally, the attorney general neither sets nor pays the county
attorneys’ salaries. See RSA 23:7 (2000) (providing, in part, that “[e]very
county convention shall have the power to establish salaries, benefits and other
compensation paid to elected county officers including the county attorney”);
RSA 23:5 (2000) (providing that “[t]he salaries of county attorneys . . . shall be
paid from the county treasury in equal payments as determined by the county
commissioners”).
As the defendant points out, however, the attorney general does possess
some supervisory authority over county attorneys. See Wyman v. Danais, 101
N.H. 487, 490 (1958). RSA 7:6 provides, in part, that “[t]he attorney general
shall have and exercise general supervision of the criminal cases pending
before the supreme and superior courts of the state, and with the aid of the
county attorneys, the attorney general shall enforce the criminal laws of the
state.” RSA 7:6. “RSA 7:11 provides that officers charged with enforcing
criminal law ‘shall be subject to the control of the attorney general whenever in
the discretion of the latter he shall see fit to exercise the same.’” Wyman, 101
N.H. at 489 (quoting RSA 7:11) (emphasis omitted); see RSA 7:11. Similarly,
RSA 7:34 specifies that “[t]he county attorney of each county shall be under the
direction of the attorney general.” RSA 7:34. “Construed together,” the above-
cited provisions “demonstrate a legislative purpose to place ultimate
responsibility for criminal law enforcement in the Attorney General, and to give
him the power to control, direct and supervise criminal law enforcement by the
county attorneys in cases where he deems it in the public interest.” Wyman,
101 N.H. at 490. Nevertheless, the prosecution of criminal cases under the
supervision of the attorney general is not the sole duty or function of a county
attorney. “Although the county attorney . . . may be engaged primarily in
12
criminal prosecutions, his duties and functions also include civil litigations for
the county and other miscellaneous civil matters.” New Hampshire Bar Ass’n
v. LaBelle, 109 N.H. 184, 185 (1968) (citation omitted); see RSA 7:34 (providing
that “[i]f no other representation is provided, under the direction of the county
commissioners [the county attorney] shall prosecute or defend any suit in
which the county is interested”).
Because the relationship between the attorney general and a county
attorney lacks the usual attributes of an employer-employee relationship, such
as the “power to set [the] salary, hire or fire,” Samaha, 126 N.H. at 586, we
agree with the plaintiff that the defendant was not Reams’s employer. We
further conclude that the attorney general’s supervisory authority over criminal
law enforcement by the county attorney is not sufficient, in light of the absent
characteristics noted above, to warrant treating the defendant as Reams’s
employer for purposes of the “internal personnel practices” exemption.
We need not decide, and express no opinion upon, whether the
Rockingham County Commissioners could be considered Reams’s employer for
purposes of the “internal personnel practices” exemption as applied in
Hounsell, nor must we address the plaintiff’s argument that the trial court
erred in finding that the defendant’s investigation of Reams was “conducted
jointly with Rockingham County.” As noted above, an investigation is
“internal,” as applied in Hounsell, if conducted on behalf of the employer of the
investigation’s target. See Hounsell, 154 N.H. at 2, 4-5. Mere joint
participation is not sufficient. Cf. id.
The defendant makes no argument on appeal that it acted as agent or
outside counsel to the Rockingham County Commissioners such that its
investigation should be treated as conducted on their behalf for purposes of the
“internal investigation exemption” as applied in Hounsell. Rather, although the
defendant maintains that it viewed its investigation as “a joint investigation
with Rockingham County,” it “does not claim that the fact that the
investigation was conducted with Rockingham County is what justifies the
application of RSA 91-A:5, IV’s personnel exemptions.” Accordingly, because a
finding of joint participation with the county commissioners would not affect
our decision, we decline to address the plaintiff’s third claim of error; moreover,
because the trial court applied RSA 91-A:5, IV’s “internal personnel practices”
exemption to records of an investigation conducted outside the limits of an
employment relationship, we vacate its decision.
The defendant nevertheless contends that “the protection provided by the
RSA chapter 91-A personnel exemptions is not for the benefit of the employer,
but for the benefit of protecting the privacy rights of the employee.” Thus, he
argues: “[T]he fact that the [attorney general’s office’s] investigation occurred
does not divest the affected [Rockingham County Attorney’s Office] employees
of their right to have their personnel information protected.”
13
The defendant’s argument does not alter our above conclusion, but,
rather, highlights that whether the disputed material may be withheld should
more properly be addressed under the portion of RSA 91-A:5, IV that exempts
“personnel, medical, . . . and other files whose disclosure would constitute
invasion of privacy.” RSA 91-A:5, IV; see N.H. Right to Life v. Dir., N.H.
Charitable Trusts Unit, 169 N.H. 95, 110 (2016) (noting that “[t]his section of
the Right-to-Know Law means that financial information and personnel files
and other information necessary to an individual’s privacy need not be
disclosed” (quotation omitted)). Similarly, we decline to consider at this time
the defendant’s contention that the “transfer of personnel information from the
[Rockingham County Attorney’s Office] to the [attorney general’s office] does not
alter the fact that the information is substantively personnel in nature,”
because we believe that argument, too, is more suited to an analysis under the
“personnel, medical . . . and other files” exemption. RSA 91-A:5, IV; cf. U.S.
Dept. of State v. Washington Post Co., 456 U.S. 595, 601 (1982) (stating, in
broadly construing the term “similar files” in the FOIA’s Exemption 6, that
“information about an individual should not lose the protection of Exemption 6
merely because it is stored by an agency in records other than ‘personnel’ or
‘medical’ files”).
As previously noted, the defendant claimed a number of exemptions for
the information he withheld or redacted, including an exemption for a category
of materials he called “Personnel Information.” (Bolding omitted.) The
defendant asserted: “Under RSA 91-A:5, IV, records related to internal
personnel practices are exempt from disclosure under Right to Know. In
addition, personnel records are also exempt.” Thus, it appears that the
defendant claimed exemption under both personnel-related exemptions in RSA
91-A:5, IV—the exemption for “[r]ecords pertaining to internal personnel
practices”—and the exemption for “personnel . . . files whose disclosure would
constitute invasion of privacy.” RSA 91-A:5, IV.
The trial court also seems to have recognized two personnel-related
exemptions, as it noted that RSA 91-A:5, IV exempts “‘[r]ecords pertaining to
internal personnel practices,’ as well as employees’ personnel files.” The
court’s decision, however, appears to be based exclusively on the “internal
personnel practices” exemption, and it is not evident that the court considered
whether any of the disputed materials were exempt as “personnel . . . files
whose disclosure would constitute invasion of privacy.” RSA 91-A:5, IV.
Accordingly, on remand, the parties may litigate whether any of the disputed
materials fall within the latter exemption and we leave it to the trial court to
make that determination in the first instance.
For the benefit of the parties and the court on remand, we provide the
following guidance. Although we have not specifically interpreted the
exemption for “personnel . . . files whose disclosure would constitute invasion
of privacy,” RSA 91-A:5, IV, we have had occasion to “define with some
14
specificity the statutory exemption for ‘confidential, commercial, or financial
information’” in the same provision. N.H. Housing Fin. Auth., 142 N.H. at 552.
We noted that “[w]e have interpreted our statute . . . as requiring analysis of
both whether the information sought is ‘confidential, commercial, or financial
information,’ and whether disclosure would constitute an invasion of privacy.”
Id. Similarly, we now hold that the determination of whether material is
subject to the exemption for “personnel . . . files whose disclosure would
constitute invasion of privacy,” RSA 91-A:5, IV, also requires a two-part
analysis of: (1) whether the material can be considered a “personnel file” or part
of a “personnel file”; and (2) whether disclosure of the material would constitute
an invasion of privacy. Cf., e.g., Rugiero v. U.S. Dept. of Justice, 257 F.3d 534,
550 (6th Cir. 2001) (describing similar two-part test for exemption under the
FOIA for personnel, medical and similar files); Rocque v. Freedom of
Information Com’n, 774 A.2d 957, 963-64 (Conn. 2001) (describing similar
two-part test for exemption under Connecticut’s Freedom of Information Act for
personnel, medical or similar files). Accordingly, in analyzing the “personnel
. . . files” exemption on remand, the trial court must first determine whether
any of the disputed material is, or is contained in, a personnel file. If not, the
“personnel . . . files” exemption does not apply.6 Cf. Abbott v. Dallas Area
Rapid Transit, 410 S.W.3d 876, 883-84 (Tex. App. 2013) (noting that
exemption under Texas Public Information Act for “‘information in a personnel
file, the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy’” did not apply to information at issue where there was “no
evidence in the record before us that [Dallas Area Rapid Transit’s] investigation
report [regarding an employee’s racial discrimination complaint against two co-
employees] is in the interviewees’ personnel files”).
The analysis of whether the exemption for “personnel . . . files” applies
next requires determining whether disclosure of any material meeting the first
prong of the inquiry would constitute an invasion of privacy. We now clarify
that, unlike materials pertaining to “internal personnel practices,” for which we
eschewed the customary balancing test in Fenniman, “personnel . . . files” are
not automatically exempt from disclosure. RSA 91-A:5, IV. For those
materials, “th[e] categorical exemption[] [in RSA 91-A:5, IV] mean[s] not that
the information is per se exempt, but rather that it is sufficiently private that it
must be balanced against the public’s interest in disclosure.” N.H. Housing
Fin. Auth., 142 N.H. at 553 (discussing RSA 91-A:5, IV exemption for
“confidential, commercial, or financial information”). Specifically, “[w]e engage
6 We again note that the defendant claimed a number of exemptions for its withholding and
redaction of information subject to the plaintiff’s Right-to-Know Law request, including an
exemption for “Personal Information.” (Bolding omitted.) In particular, the defendant claimed an
exemption for “records whose disclosure would constitute an invasion of privacy.” (Quotation
omitted.) To the extent that claim was intended to be an invocation of the exemption for “other
files whose disclosure would constitute invasion of privacy,” we express no opinion upon the scope
or application of that claimed exemption and our decision herein has no effect upon the
defendant’s ability to assert such a claim on remand. RSA 91-A:5, IV (emphasis added).
15
in a three-step analysis when considering whether disclosure of public records
constitutes an invasion of privacy under RSA 91-A:5, IV.” N.H. Right to Life,
169 N.H. at 110.
The three-step analysis is well-established:
First, we evaluate whether there is a privacy interest at stake that
would be invaded by the disclosure. . . . If no privacy interest is at
stake, the Right-to-Know Law mandates disclosure.
Second, we assess the public’s interest in disclosure.
Disclosure of the requested information should inform the public
about the conduct and activities of their government. . . .
Finally, we balance the public interest in disclosure against
the government’s interest in nondisclosure and the individual’s
privacy interest in nondisclosure.
Lambert v. Belknap County Convention, 157 N.H. 375, 382-83 (2008) (citations
omitted).
The defendant does not appear to assert a privacy interest on behalf of
Reams,7 but rather cites “the privacy rights of the former and present
[Rockingham County Attorney’s Office] employees who provided their
[employment-related] information, including allegations of sexual harassment,
pregnancy discrimination, discipline, and retaliation to [attorney general’s
office] investigators.” Looking to cases from other jurisdictions for guidance,
see Murray, 154 N.H. at 581, we note that federal courts applying the FOIA
have recognized that “[w]itnesses who cooperate with internal investigations
concerning alleged employee violations do have privacy interests at stake.”
Fine v. U.S. Dept. of Energy, 823 F. Supp. 888, 897 (D.N.M. 1993); see also
Cappabianca v. Commissioner, U.S. Customs Service, 847 F. Supp. 1558, 1564
(M.D. Fla. 1994) (noting that “[w]itnesses and co-workers have legitimate
privacy interests in the nondisclosure of their identities and in keeping their
participation in an investigation confidential”). In addition, a public interest in
nondisclosure has been noted where records relate to the investigation of
alleged wrongdoing by public employees. Thus, in analyzing the FOIA
exemption for “‘investigatory records compiled for law enforcement purposes,’”
whose production would “‘constitute an unwarranted invasion of personal
privacy,’” the court in Fine recognized “a strong public interest in protecting the
7 Because the trial court appears not to have engaged in the balancing test for an exemption
involving an asserted invasion of privacy, or made any ruling on that issue that is now before us
on appeal, we do not address whether the defendant’s brief fully develops his privacy claim. Thus,
nothing in the guidance we provide herein is intended to constrain the scope of the defendant’s
claims or arguments on remand.
16
privacy of persons who have cooperated with internal investigations of possible
improper conduct by fellow employees.” Fine, 823 F. Supp. at 907-08 (quoting
5 U.S.C. § 552(b)(7)(C)(1977)). Although these cases provide helpful guidance,
we note that they are arguably distinguishable from this case because, as
explained above, the investigation by the attorney general’s office was not an
“internal” one.
We have not yet considered the nature of any privacy interest that might
be asserted under the precise circumstances at issue here. The privacy inquiry
under the comparable provision of the FOIA (Exemption 6), however, has been
noted to be “essentially the same,” Judicial Watch, Inc. v. Dept. of Justice, 365
F.3d 1108, 1125 (D.C. Cir. 2004), as the privacy inquiry under the FOIA’s
exemption for investigatory records “compiled for law enforcement purposes,”
to the extent their production “could reasonably be expected to constitute an
unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C) (2012). Cf.
Judicial Watch, Inc., 365 F.3d at 1125 (also noting, however, that the Supreme
Court has construed the 7C exemption to be broader than Exemption 6).
We addressed a law enforcement exemption under the Right-to-Know
Law in City of Nashua, where we recognized “that there may be strong privacy
interests . . . in law enforcement investigatory records.” City of Nashua, 141
N.H. at 477. We cited cases from other jurisdictions noting that disclosure of
such records could subject individuals to stigma, embarrassment, and
reputational injury. Id. at 477-78. Similarly, the FOIA’s Exemption 6 has been
held to apply to the “kinds of facts [that] are regarded as personal because their
public disclosure could subject the person to whom they pertain to
embarrassment, harassment, disgrace, loss of employment or friends.” Brown
v. Federal Bureau of Investigation, 658 F.2d 71, 75 (2d Cir. 1981) (determining
whether documents were “similar files” under Exemption 6 of the FOIA); see
also Washington Post Co., 456 U.S. at 599 (noting that legislative history
suggests that the “primary purpose . . . [of] Exemption 6 was to protect
individuals from the injury and embarrassment that can result from the
unnecessary disclosure of personal information”). Thus, in determining
whether any privacy interests are at stake in the disputed materials, the trial
court should consider whether disclosure would subject an individual to the
kind of embarrassment or reputational harm described above.
Moreover, “[w]hether information is exempt from disclosure because it is
private is judged by an objective standard and not by a party’s subjective
expectations.” N.H. Retirement Sys., 162 N.H. at 679 (quotation omitted); cf.
Lambert, 157 N.H. at 383 (noting that candidate for an elected office “could not
have reasonably expected to keep his or her ‘application’ private”). As Lambert
suggests, however, the nature of the information itself may bear upon whether
it can be considered private for purposes of RSA 91-A:5, IV. See Lambert, 157
N.H. at 383. Thus, information that, under an objective standard, would be
expected to become public in due course, should not give rise to the same
17
privacy interest as information for which public exposure would, objectively,
never be anticipated. Here, it may be that certain information regarding
allegations of misconduct potentially rising to the level of criminal actions by
an elected official could objectively have been expected to become public as or
after an investigation ran its course.
We recognize case law holding that “[a] clear privacy interest exists with
respect to such information as names, addresses, and other identifying
information even where such information is already publicly available,”
Rugiero, 257 F.3d at 550, and that “[a] witness does not waive his or her
interest in personal privacy [even] by testifying at a public trial,” Sellers v. U.S.
Dept. of Justice, 684 F. Supp. 2d 149, 160 (D.D.C. 2010) (discussing the FOIA
exemption for records compiled for purposes of law enforcement).
Nevertheless, we note that the privacy interest in a witness’s or investigation
interviewee’s name and identifying information will likely differ from the privacy
interest in the substantive information the witness or interviewee imparts. Cf.
CREW v. U.S. Dept. of Justice, 978 F. Supp. 2d 1, 11 (D.D.C. 2013) (CREW I)
(finding, with respect to investigative files on senator’s alleged criminal actions
taken to cover up an extramarital affair, that third parties mentioned in files,
such as informants, witnesses, and investigators, “lack a privacy interest in the
substance of the files, unless the substance could reveal their identities”).
In contrast to CREW I, id., however, and given the nature of Reams’s
alleged misconduct, we cannot say as a matter of law that third party witnesses
and interviewees in this case will have no privacy interest in any of the
substantive information. Cf. Rocque, 774 A.2d at 959 (agreeing with trial court
“that the identity of the complainant in the sexual harassment investigation at
issue . . . [and] certain other information concerning the investigation is exempt
from disclosure” but “limit[ing] the exempt portions of the records to those
comprising sexually descriptive information”). On the other hand, even
information imbued with a legitimate privacy interest is subject to disclosure if,
on balance, that interest is outweighed by the public’s cognizable interest in
disclosure. Cf. CREW I, 978 F. Supp. 2d at 12 (noting that “[a]lthough the
[defendant, Department of Justice (DOJ),] argues that Senator Ensign’s alleged
misconduct ‘is of a highly personal nature,’ the public has a substantial
interest in DOJ’s decision not to prosecute him, considering the
circumstances”). Accordingly, we emphasize that a fact-specific inquiry is
required in each case. Cf. Rocque, 774 A.2d at 959 (disagreeing with “trial
court’s ruling that the identity of a complainant in a sexual harassment
complaint and related information are always exempt from disclosure,
irrespective of the particular facts of a case”).
Turning to the second step of the balancing test, the plaintiff claims a
“public interest in determining if the Attorney General had grounds to
unilaterally remove an elected official . . . [and] in disclosing the information
relied upon by the Attorney General.” We recognize that “[t]he public has a
18
significant interest in knowing that a government investigation is
comprehensive and accurate.” Fine, 823 F. Supp. at 898. We also note that
the rank of the official being investigated and the seriousness of the alleged
misconduct will bear upon the strength of the public interest. Cf. Coleman v.
Lappin, 680 F. Supp. 2d 192, 199 (D.D.C. 2010) (stating that “[t]he Court
ordinarily considers, when balancing the public interest in disclosure against
the private interest in exemption, the rank of the public official involved and
the seriousness of the misconduct alleged” (quotation and brackets omitted)).
Thus, for instance, the court in CREW v. U.S. Dept. of Justice, 840 F. Supp. 2d
226 (D.D.C. 2012) (CREW II), found it “difficult to understand how there could
not be a substantial public interest in disclosure of documents regarding the
manner in which the [Department of Justice] handled high profile allegations of
public corruption about an elected official.” CREW II, 840 F. Supp. 2d at 234.
The legitimacy of the public’s interest in disclosure, however, is tied to
the Right-to-Know Law’s purpose, which is “to provide the utmost information
to the public about what its government is up to.” N.H. Right to Life, 169 N.H.
at 111 (quotation omitted). “If disclosing the information does not serve this
purpose, disclosure will not be warranted even though the public may
nonetheless prefer, albeit for other reasons, that the information be released.”
Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106, 111 (2005) (quotation
omitted). Conversely, “an individual’s motives in seeking disclosure are
irrelevant to the question of access.” Lambert, 157 N.H. at 383.
The third step requires balancing “the public interest in disclosure
against the government’s interest in nondisclosure and the individual’s privacy
interest in nondisclosure.” Id. We have stated that “[t]he legislature has
provided the weight to be given one side of the balance[] [by] declaring the
purpose of the Right-to-Know Law in” the statute itself. City of Nashua, 141
N.H. at 476. Specifically, the preamble to RSA chapter 91-A provides:
“Openness in the conduct of public business is essential to a democratic
society. The purpose of this chapter 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). Thus, “[w]hen 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.” City of
Nashua, 141 N.H. at 476.
The foregoing considerations are not intended to be either comprehensive
or exhaustive, and we leave it to the trial court, in the first instance, to
determine and weigh the applicable interests as the case may require on
remand.
In light of the foregoing, our decision is not undermined by the
defendant’s contention, and the trial court’s consonant finding, that this case
implicates the policy concern noted in Hounsell; namely, that “disclosure of
19
records underlying, or arising from, internal personnel investigations would
deter the reporting of misconduct by public employees, or participation in such
investigations, for fear of public embarrassment, humiliation, or even
retaliation.” Hounsell, 154 N.H. at 5. We are confident that the proper
balancing of the employees’ interests in privacy and the State’s interest in
nondisclosure against the public’s interest in disclosure under our established
test adequately addresses any concerns about deterrence. Cf. Goode v. N.H.
Legislative Budget Assistant, 148 N.H. 551, 556 (2002) (acknowledging “a
possibility that an audit investigation may be compromised if interviewees are
reluctant to disclose information to investigators” out of concern “that their
responses could be released to the public,” but finding that this possibility did
“not . . . outweigh[] the public’s interest in disclosure”).
In light of our decision, we need not address the plaintiff’s constitutional
argument. See Chatman, 163 N.H. at 326.
Vacated and remanded.
HICKS, CONBOY, and BASSETT, JJ., concurred.
20