“Internal Personnel Practices” are Not Per Se Exempt from Disclosure, but Exempt if Disclosure is an Invasion of Privacy. “Internal Personnel Practices” are Defined as Internal Rules and Practices Governing Agency’s Operations and Employee Relations

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Union Leader Corp. v. Town of Salem
New Hampshire Supreme Court Docket No. 2019-0206
Friday, May 29, 2020

The NH Supreme Court overrules its decision in Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993) that “internal personnel practices” are categorically exempt from disclosure under RSA 91-A:5, IV.  The Court will now require that the disclosure of internal personnel practices will be subject to a balancing test to determine whether such materials are exempt governmental records.  

The Town of Salem had engaged a nationally-recognized consulting firm to critically examine the internal operations of its police department.  Upon completion, that audit report was voluntarily released to the public with appropriate redactions consistent with RSA 91-A:5, IV.  After release the Union Leader and ACLU-NH filed suit seeking an unredacted copy.  The trial court upheld the Town’s redactions under the “internal personnel practices” exemption. 

On appeal the Supreme Court concluded that the Fenniman per se rule is inconsistent with the historical and current interpretation of the RSA 91-A:5, IV for “confidential, commercial, or financial information.” Consequently, the Court overruled Fenniman to the extent that it adopted a per se rule of exemption for records relating to “internal personnel practices.”  As stated by the Court in Seacoast Newspapers v. Portsmouth, 173 N.H. ___, ___ (decided May 29, 2020) (slip op. at 11) the “internal personnel practices” exemption applies narrowly to records relating to the internal rules and practices governing an agency’s operations and employee relations.  In the future, the balancing test used for other categories of records listed in RSA 91-A:5, IV shall apply to records relating to “internal personnel practices.”    Determining whether the exemption for records relating to “internal personnel practices” applies will require analyzing both whether the records relate to such practices as redefined in the Seacoast Newspapers decision, and whether their disclosure would constitute an invasion of privacy.    

The Court then remanded this matter back to the trial court for a determination of whether the information redacted from the audit report must be disclosed.  The Superior Court must first determine whether the redacted information relates to the internal rules and practices governing the Salem Police Department’s operations and employee relations.  If those redactions are “internal personnel practices” then the court must determine if the disclosure of that information would constitute an invasion of privacy based upon the well-established three-step analysis. Reid v. N.H. AG, 169 N.H. 509, 528-29 (2016).

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Additional Information: 

Practice Pointer:  The exemption from disclosure under RSA 91-A:5, IV for “internal personnel practices” applies to governmental records that pertain to rules and practices dealing with employee relations or human resources, including hiring and firing, personnel rules, discipline, compensation and benefits.  If governmental records are properly classified as “internal personnel practices” then whether such records are subject to disclosure depends on evaluating whether that disclosure would constitute an invasion of privacy.  First, 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, 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, balance the public interest in disclosure against the government's interest in nondisclosure and the individual's privacy interest in nondisclosure.