LEGAL Q&A: A Guide to Record Requests Involving Juveniles

It can be a daunting task trying to respond to certain requests for public records under the Right-to-Know Law given the complicated nature of exceptions under RSA 91-A. Municipalities struggle with applying the “public vs. private balancing test” to private information contained within governmental records, understanding how to apply the FOIA (Freedom of Information Act) standards to law enforcement records, and determining what information is fully exempt from disclosure vs. information that is subject to disclosure but with certain information redacted. Within this complicated web of legal analysis, the most complicated requests are arguably those which involve information about juveniles. Not only are juveniles protected more stringently in the law, but their information is generally subject to a much higher privacy expectation as well as other statutory
considerations outside of the confines of RSA 91-A. This article will provide some practical guidance on how to handle record requests when the records contain information about juveniles.

Q. I received a request to provide access to records containing information about juveniles, where do I start?
A. The first place you should start whenever you receive any type of request to view records is to determine what type of request you have actually received. Most requests are going to be made as a “Right-to-Know” request or will require a “Right-to-Know” analysis and answer. However, in some circumstances, the request will be outside of RSA 91-A and come from some other authority. What this generally looks like is a request accompanied by a court order, or other legal document such as a request for discovery associated with a criminal or civil court case. If you receive a request for records accompanied by some sort of official order signed by a judge, or under a case caption with a docket number, you can reasonably assume that RSA 91-A is not applicable here, and these records are accessible by some other legal authority.

However, most requests do not contain official court orders and thus must be evaluated under a Right-to-Know analysis. Even if the records may be available to the person via a court order or the discovery process, if they have requested to view the records with no other authority cited, it is not sufficient to instruct them to seek a court order. You still must evaluate the records under a Right-to-Know analysis. Finally, there is no “magic word” needed to make a Right-to-Know request. Someone doesn’t have to cite RSA 91-A or use a specific term like “public record request.” If you receive a request to view or provide documents, and there is no court order or discovery motion attached, you should consider this to be a Right-to-Know request and respond accordingly.

Q. Are records related to juveniles exempt from disclosure under RSA 91-A?
A. Not necessarily. There is no categoric exemption contained within RSA 91-A specifically related to juvenile records. There are two ways in which juvenile records, or information about juveniles, may be exempt from disclosure under RSA 91-A. They are mentioned under RSA 91-A:4, I which states that the public has a right to inspect governmental records “except as otherwise prohibited by statute or RSA 91-A:5.” Therefore, the first way in which juvenile records may be exempt from disclosure is if they are protected by some other statute. Knowing where to look to determine if another statute applies will depend on what type of record is being sought. There are three main categories of records likely to be sought pursuant to a Right-to-Know request that may be covered by other statutes: those are delinquency records, including police reports, child protective records for things like abuse and neglect, and children in need of services, which would be most other records related to government services provided to children in need. Each of these records contain statutory exemptions listed under RSA 169-B, 169-C and 169-D respectively. However, these exemptions are not all encompassing and will need some further explanation. See the next question below.

The second way in which juvenile records may be exempt from disclosure is if they fall under one of the exemptions contained in RSA 91-A:5. These would be personal school records of pupils, unique pupil identification
information collected under RSA 193-E:5, records of the youth development center claims administration and YDC settlement fund, and other records whose disclosure would constitute an invasion of privacy. Determining whether there is an invasion of privacy involving juveniles can also be quite tricky and will require further explanation as well.

Q. If the requested records are related to delinquency, child protective services or children in need of services, what exemptions will apply?
A. Lets start with delinquency records covered under RSA 169-B. For the purpose of simplicity, we can define delinquency records as any records involving the investigation, arrest, adjudication and/or rehabilitation of those under the age of 18. This would include police reports, court documents and records, and detention center records for any facility housing delinquent minors, such as the Sununu Youth Services Center. RSA 169-B:35 has a specific exemption which states that court records of proceedings under this chapter, shall be withheld from public inspection. To understand what records are therefore exempt, we need to understand the definition of “court records.” The Supreme Court of New Hampshire recently defined this term in the case of Union Leader Corp. v. N.H. Dep’t of Safety, 2024 N.H. 35. This case dealt with the question of whether police reports involving information about juveniles were exempt under RSA 169-B:35. Here is what the court ruled:

The term “court records” in RSA 169-B:35 should not be read so expansively as to “shield the entirety of a broad category of otherwise public records from a request made pursuant to the Right to Know Law, RSA 91-A, even if that record is related to alleged unlawful conduct by unidentified minors.” The court concluded that “both of these interests can be reconciled by finding a constitutionally protected right of the press and public to a redacted copy of [police] incident reports involving juveniles.”

The exemption in RSA 169-B:35 encompasses only records generated and possessed by the courts themselves. To the extent this exception encompasses records generated and possessed by government entities outside of the court, for our purposes local police departments, the exemption will only apply to information within those records that would interfere with the rehabilitation of the minors. To the extent that redactions can be made to protect the rehabilitation of the minor while still releasing certain information, that is what is expected by RSA 91-A. Therefore, if a request is made to view public records containing information about local law enforcement’s interactions with a juvenile, you should not be simply denying access to the records as exempt. Instead, you should review the information contained within those records carefully, and release as much information as possible, while taking care to redact any information which would “interfere with the rehabilitation of the minor.” Realistically, this is going to mean redacting any identifying information about the juveniles involved. Not only would this information hinder the rehabilitation of the minor if released, but it is also the same type of information that would likely be protected under the privacy exemption further explained below. Moving on to child protection records and records of children in need of services, there are similar exemptions contained within RSA 169-C:25 and 169-D:25. Both statutes state that the court records of proceedings under these chapter shall be kept in books and files separate from all other court records. Such records shall be withheld from public inspection. It is probably safe to apply the same analysis of the
term “court records” contained in these section to the one above from RSA 169-B:35. Therefore, any records involving child protective services or children in need of services within the municipality’s possession should be evaluated for redactions to protect the rehabilitation and privacy of the minor.

Q. Are there any other statutory exemptions I need to be aware of?
A. There is one other statute that is mentioned throughout RSA 169-B,C and D, and that is RSA 170-G:8-a. All three of those statutes state that all case records, defined in RSA 170-G:8-a, shall be confidential and access shall be provided pursuant to RSA 170-G:8-a. This is not an exemption, but rather it lays out a specific process that must be followed if the juvenile record is covered under RSA 170-G:8-a. These are records of the Department of Health and Human Services which will most often be records produced by DCYF. If someone is making a request to view DCYF records that may be contained within a town’s police department, this is the statute that prevails. The records are not subject to disclosure under the Right-to-Know Law, but if the person follows the process laid out in RSA 170-G:8-a, they may be able to view such records.

Q. What if the records don’t fall under any of the other statutory exemptions mentioned above?
A. This is where we turn to the rest of RSA 91-A:4, I which states that the public has a right to inspect governmental records “except as otherwise prohibited by statute or RSA 91-A:5.” RSA 91-A:5 contains the privacy exemption which we must always apply to information contained within governmental records when making a determination as to whether the information should be released to the public. Let us assume that the records being requested don’t fall into any of the other categories or exemptions we have already mentioned above. You would still need to evaluate the records and make a determination as to whether or not someone’s privacy would be unreasonably violated upon release of this information to the general public.

To come to this determination, the courts have established the “private vs. public balancing test.” Under this test, you must determine if someone would consider the information about themselves contained within a governmental record private. If so, there then must be a sufficient public interest in releasing that information which would outweigh the individual’s privacy interest. Only then, should private information be disclosed. When it comes to applying the private vs. public balancing test to juvenile records, the same analysis should be applied with the understanding that juveniles likely have a higher expectation of privacy in their information being disclosed than adults.

Q. What if someone’s health or safety is a concern and the records are needed to protect that person?
A. It is always important to mention the exception to the privacy exemption contained within the last sentence of RSA 91-A:5, IV. That sentence says, “Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a public body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected.” When it comes to juvenile records, this exception usually comes into play when you have a parent requesting records related to some sort of police involvement with their child. If the parent is a legal guardian, and is seeking information relative to the health and safety of their child, this exception would allow the government to release the information to the parent about their child, unredacted, while still taking care to redact any private information about any other individual other than the child.