In a significant decision on the confidentiality of legal advice provided by government attorneys, the NH Supreme Court has ruled that legal advice provided to a unit of government may be subject to disclosure under the Right-to-Know Law. The Court has in effect ruled that the Right-to-Know Law can abrogate the attorney client privilege when the benefits of disclosure to the public outweigh the potential harm to the government. In reaching this decision the Court has stated that the Right-to-Know Law is “a statutory public waiver of any possible privilege of the public client … except in the narrow circumstances stated in the statute.”
In order to assess whether written legal advice is subject to disclosure under RSA 91-A:4 initially requires a two-part analysis: (1) whether the information sought pertains to an “internal personnel practice” or constitutes “confidential, commercial or financial information” or is within another statutorily-defined category claimed by the party resisting disclosure; and (2) whether disclosure of the information constitutes an invasion of privacy. Then the Court’s three-part invasion of privacy analysis would be used to determine whether any written legal opinion provided by counsel to any unit of government may have to be disclosed. First, is there a privacy interest at stake that would be invaded by disclosure? Second, assess the public’s interest in disclosure. Third, balance the public interest in disclosure against the government’s interest in nondisclosure and the individual’s privacy interest in nondisclosure.
Practice Pointer: All municipalities should promptly review this decision with their regular legal counsel to determine whether how legal advice is provided, orally or in writing, should be modified in order to preserve as much as possible the confidentiality of that legal advice.