Law Enforcement Records Under the Right-to-Know law

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

In 1978 the New Hampshire Supreme Court ruled that since there were no legislative standards governing police investigatory files in the Right-to-Know Law, RSA 91-A, the Court would implement exemptions found in the federal Freedom of Information Act (FOIA).  The Court adopted 5 U.S.C §552(b)(7) which permits the withholding of records compiled for law enforcement purposes if that disclosure would have one of six adverse consequences.  This FAQ will address those FOIA exemptions for police investigatory records.

Q:  What types of enforcement agencies are permitted to use the FOIA exemptions?

A:  The governmental entity that is seeking to avoid disclosure of a governmental record must establish that the requested materials were compiled for law enforcement purposes.  The exemption does not apply exclusively to law enforcement officers or agencies, but rather applies to all records and information compiled, by any type of agency, for law enforcement purposes, and the phrase law enforcement purposes includes both civil and criminal matters. 

Q:  Could the FOIA exemptions apply to offices of a municipality other than the police department?

A:  Enforcement of a local zoning ordinance under RSA 676:17, V would qualify as a law enforcement activity that would justify non-disclosure of a complaint form containing the complaining party’s identifying information.  So long as the Code Enforcement Official reasonably anticipates enforcement proceedings, the form would be exempt under Murray v. NH Div. of State Police, 154 N.H. 579 (2006) because to release a copy of the form until code enforcement activities are commenced might be reasonably expected to interfere with enforcement proceedings.

Q:  Once it has been established that the governmental record was compiled for law enforcement purposes what also must be demonstrated to exempt the record from disclosure?

A:  Under the FOIA test, law enforcement records may be withheld if releasing the material would have one of the following adverse consequences:

1. Interfere with enforcement proceedings;
2. Deprive a person of a right to a fair trial;
3. Constitue an unwarranted invasion of privacy;
4. Disclose the identity of a confidential source, or confidential information furnished only by a confidential source;
5. Disclose investigative techniques and procedures; or
6. Endanger the life or physcial safety of any individual.

Q:  What conditions would dictate that releasing a governmental record would “interfere with enforcement proceedings.”?

A:  Determining the applicability of this exemption requires a two-step analysis focusing on (1) whether a law enforcement proceeding is pending or prospective, and (2) whether release of information about it could reasonably be expected to cause some articulable harm. As a general rule, this exemption may be invoked so long as the law enforcement proceeding involved remains pending, or so long as an enforcement proceeding is fairly regarded as prospective. Even when an investigation is dormant, the exemption has been held to be applicable because of the possibility that the investigation could lead to a prospective law enforcement proceeding. The prospective proceeding, however, must be a concrete possibility, rather than a mere hypothetical one.

Q:  What conditions would dictate that releasing a governmental record would “deprive a person of a right to a fair trial”?

A:  This exemption follows a two-part test: (1) that a trial or adjudication is pending or truly imminent; and (2) that it is more probable than not that disclosure of the material sought would seriously interfere with the fairness of those proceedings.  The following would be the types of information that might cause prejudice:

• Speculation on the guilt or innocence of a defendant;
• The character or reputation of a suspect;
• Examinations or tests which the defendant may have taken or have refused to take;
• Gratuitous references to a defendant; for example, a reference to the defendant as "a dope peddler";
• The existence of a confession, admission or statement by an accused person, or the absence of such;
• The possibility of a plea of guilty to the offense charged or a lesser offense;
• The identity, credibility or testimony of prospective witnesses;
• Any information of a purely speculative nature;
• Any opinion as to the merits of the case or the evidence in the case.

Q:  What conditions would dictate that releasing a governmental record would “constitute an unwarranted invasion of privacy”?

A:  The exemption guards the privacy interests of a broad range of individuals, including government agents, personnel, confidential sources, and investigatory targets.  The exemption also protects a broad notion of personal privacy, including an individual's interest in avoiding disclosure of personal matters. This notion of privacy encompasses the individual's control of information concerning his or her person, and when, how, and to what extent information about them is communicated to others.  To determine whether a record should be released use the following balancing test:

• First, 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

Q:  "What conditions would dictate that releasing a governmental record would disclose the identity of a confidential source, or confidential information furnished only by a confidential source”?

A:  This exemption is comprised of two distinct clauses: the 1st clause protects the identity of confidential sources and the 2nd clause protects all information obtained from the source.  In addition, it must be determined if the source was given express promise of confidentiality, or can an assurance of confidentiality be inferred from the circumstances surrounding receipt of the information? Courts have uniformly recognized that express promises of confidentiality deserve protection under the exemption and they usually require affidavits specifically demonstrating the existence of such an express promise.

To permit an inference of confidentiality where no express promise was made the following additional factors must be assessed:

• The nature of the crime and the source’s relation to the crime might permit an inference of confidentiality because;
• The potential for retaliation against the source, whether based on actual threats of retaliation by defendants or requesters, prior retaliatory acts by perpetrators or against sources;
• The possibility of reprisals by third parties;
• The specific dangers faced by prison informants; or
• The violent or intimidating nature of the crime itself.

Q:  "What conditions would dictate that releasing a governmental record would disclose investigative techniques and procedures”?

A:  This factor probably provides categorical protection for law enforcement techniques and procedures. FOIA sets a relatively low bar for withholding under this exemption. However, Courts have uniformly required that the technique or procedure must not be well known to the public. Under this exemption a "guideline" is defined as what factors are employed by agencies when deciding whether to allocate resources for law enforcement investigations (whether to investigate).  "Techniques and procedures“ are defined as the means by which agencies conduct investigations (how to investigate). 

Courts have applied the exemption to encompass the withholding of a wide range of techniques and procedures, including:

• Immigration enforcement techniques
• Information about databases used for law enforcement purposes
• Surveillance tactics and methods
• Portions of a law enforcement agency's investigations and operations manual
• Funds expended in furtherance of an investigation
• Law enforcement codes, and techniques used to uncover tax fraud
• Techniques and procedures pertaining to the forensic analysis of firearms  and computers
• Details of the status of investigatory efforts
• Search and arrest warrant execution techniques
• Suspect threat detection techniques

• Law enforcement checkpoints

Q:  What conditions would dictate that releasing a governmental record would “endanger the life or physical safety of any individual”?

A:  This exemption originally only protected law enforcement personnel, but was later amended and now protects the safety of any individual.  This exemption can also protect any type of information that creates a risk of harm or retaliation to an individual, not just identifying information, such as:

• Flood inundation maps because they show which areas downstream from dams are at risk for flooding in the event a dam is damaged.
• The details of the physical structure and security plans of a Federal Bureau of Prisons facility because of the risks to prison security that would be created by disclosure.
• The description of a home-made machine gun in an FBI laboratory report because its disclosure would create the real possibility that law enforcement officers would have to face individuals armed with home-made devices constructed from the expertise of other law enforcement people.

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.