The petitioners in this case sought disclosure under the Right to Know Law of an investigatory report regarding a claim of co-worker harassment by a North Conway Water Precinct employee. The precinct commissioners, through their attorney, hired consultants to investigate the harassment complaint. The investigators, Jack Hunt and John Alfano, interviewed each precinct employee.
The precinct commissioners permitted the employees’ union representative to be present during the interviews and permitted two others, who were not employees or agents of the precinct, including petitioner Mark Hounsell, to be present during some of the interviews. During the investigation, precinct employee Joseph Smith, the other petitioner in this case, who was the subject of the investigation, was placed on paid leave.
The investigators issued a report (the Hunt-Alfano report) to the precinct’s attorney summarizing their findings, but contrary to the attorney’s instructions and without the knowledge of the commissioners, Hunt permitted the union representative to review the report.
The precinct ended up taking no disciplinary action against Smith or other employees, and the commissioners issued a press release reporting that decision. Hounsell and Smith requested copies of the Hunt-Alfano report. Their requests were denied by the commissioners, who said the report was a “confidential personnel document” that was exempt from disclosure under RSA 91-A:5, IV. Hounsell and Smith filed a petition in superior court seeking copies of the report and all minutes of nonpublic sessions at which the commissioners discussed the report. Their petition was denied and they appealed to the Supreme Court.
The Court explained that citizens have the right to inspect all public records unless those records are exempt by RSA 91-A:5 or some other statute. RSA 91-A:5 exempts from disclosure “[r]ecords pertaining to internal personnel practices.” The Court said the traditional balancing test often employed in Right to Know Law cases involving confidential information “is not necessary where the legislature has plainly made its own determination that certain documents are categorically exempt. However, we generally interpret the exemption in RSA Chapter 91-A restrictively to further the purposes of the Right to Know Law.”
The lower court had found that the Hunt-Alfano report concerned an “internal personnel practice” because the precinct would likely have taken disciplinary action against Smith had he not be cleared of the harassment complaint against him. The lower court’s ruling relied on Union Leader Corporation v. Fenniman, 136 N.H. 623 (1996), in which the newspaper sought copies of a police department’s “internal police investigatory files” regarding a claim that a police officer made harassing telephone calls. In that case, the Court held that the files were exempt from disclosure because they “documented procedures leading up to internal personnel discipline, a quintessential example of an internal personnel practice.”
The Court held, “Thus, 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.’” The petitioners argued that their case was different from Fenimann because in that case the police department had released “internal investigation disposition forms” detailing some information about the case, whereas the press release issued by the commissioners conveyed little information. The Court disagreed, stating, “We did not suggest in Fenniman, however, that the prior release of some information concerning the investigation affected our decision” that the records were exempt from public disclosure.
The petitioners also argued that their case was different in that it didn’t involve police internal files, but the Court said that difference had little relevance. “Nothing in the plain language of RSA 91-A:5, IV suggests that the legislature intended to exempt ‘records pertaining to internal personnel practices’ only in the context of internal police investigations.” The Court agreed with the precinct’s argument that disclosure of internal personnel investigatory files “would deter the reporting of misconduct by public employees.”
The petitioners argued that the Hunt-Alfano report had lost its “internal status” because the commissioners had permitted the union representative and two outside observers to be present at the employee interviews and the union representative had reviewed the report. The Court found these arguments unpersuasive. The Court also noted that the parties had not requested the lower court to conduct an in camera review of the report to determine if any portion of the requested documents could be made public.
In addition to their Right to Know Law argument, the petitioners claimed that the precinct was estopped from asserting that the report was not subject to disclosure. In addition to the Hunt-Alfano report, the precinct had hired a consultant, Municipal Resources, Inc. (MRI), to investigate alleged mismanagement of the precinct. Its report was disclosed to the public. The New Hampshire Attorney General (AG) initiated an investigation into allegations of criminal behavior described in the MRI report. The AG’s report, which concluded there was insufficient evidence to begin criminal prosecution, was released to the public. The petitioners claimed the three reports were prepared in the same manner and contained essentially the same content. Because the MRI report and the AG report were released to the public, the petitioners argued, the precinct could not claim the Hunt-Alfano report should be exempt from disclosure.
The Court said that estoppel against a municipal corporation is not generally favored under the law, “especially … when a valuable public interest may be jeopardized by applying the doctrine of estoppel against the municipality.” The Court said the petitioners could not demonstrate that “the public interest in preventing the government from capriciously dealing with its citizens outweighs the risk, posed by estoppel, of undermining important government interests.” Not disclosing the Hunt-Alfano report advanced the important government interest in encouraging the reporting of public employee misconduct.
The Court said the petitioners failed to demonstrate that the precinct acted arbitrarily in disclosing the MRI report and that the precinct had no control over the public disclosure of the AG report. The Court rejected the petitioners’ estoppel claim.