LEGAL Q&A: Understanding Law Enforcement FOIA Exemptions

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. Now, when someone files a Right to Know request for “law enforcement” records, municipalities must evaluate that request under both the exemptions contained in RSA 91-A and the six FOIA exemptions. If information contained within a law enforcement governmental record falls into any of these exemptions, it could be withheld or redacted.

Q. What are the FOIA exemptions that apply to Law Enforcement records?
A. The six FOIA law enforcement exemptions hold that information can be exempt from public disclosure if release of such information would:
1. Interfere with enforcement proceedings;
2.Deprive a person of a right to a fair trial;
3. Constitute 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 physical safety of any individual.

Q. I received a request for law enforcement records that may fall into one of these categories. Can I simply deny the request?
A. Recently, the New Hampshire courts have provided some additional context related to citing one of these exemptions pursuant to a Right to Know request under RSA 91-A. To start, the court has established that simply stating “records are exempt because disclosure will deprive a person of a right to a fair trial” may not be good enough. This is a self-serving statement that may need more context to be viewed as a valid exemption to a public records request. Essentially, denying a Right to Know request by simply stating one of the six exemptions is missing the requirement to say “why”. Why would release of these records to the public deprive a person of a right to fair trial? A better response would be something like, “disclosure will deprive a person of a right to a fair trial because this is a high-profile criminal matter and disclosing information related to the case may taint the pool of potential jurors needed to resolve the matter.” Another example may be, “this is an ongoing investigation and release of these records could inform suspects and witnesses of where the investigation is heading, thus interfering with law enforcement proceedings”. It is a good idea to include some sort of general explanation as to “why” as opposed to simply listing one of the six exemptions without further context.

Q. What if the records requested are part of an active criminal prosecution? Aren’t those records obtainable through discovery or the court system?
A. Sometimes, police departments will receive a Right-to-Know request for records that are available through other means, such as the discovery process. When you receive a Right to Know request for records related to an active prosecution, it is important to remember that there are different laws and different rules that apply to records requested as part of the civil or criminal discovery process and records requested as public records under RSA 91-A. Most importantly, you will notice that “the records are available through discovery” is not one of the listed exemptions contained in FOIA or RSA 91-A. What this means is that if you receive a Right to Know request for records that are part of a criminal or civil case, it is not appropriate to deny that request by citing the fact that the records could be obtained through discovery. When you receive a Right to Know request, you must always perform a Right to Know analysis on those records and respond by releasing or denying records pursuant to a valid Right to Know exemption.

Q. If the records being requested are part of an active case, under what circumstances would those records still be subject to release pursuant to a Right to Know request?
A. Here is an example of how this might play out; Imagine that your police department arrested someone on drug charges and posted a press release on the police department Facebook page showing a picture of the defendant and all the drugs which were confiscated. That case, along with all the police reports, forensic reports and other records is now being prosecuted by the County Attorney’s Office. During the pendency of the case, the police department receives a Right to Know request seeking all records related to the case. It would not be appropriate to respond to that request by telling the person that those records are available through the discovery process or through the court system because they are not making a discovery request. They are making a Right to Know request. Instead, you need to look at all the governmental records related to this case under a Right to Know analysis and see if any public records actually exist that may subject to disclosure. Remember, it doesn’t matter who is making the request. Public records are by nature records that are available to any member of the public. Therefore, in the above example, most of the investigatory files would likely be exempt under FOIA because release of those records to the public as a whole would likely deprive the defendant of a right to a fair trial by tainting the potential jury pool or would be a violation of the involved parties right to privacy. However, the Facebook post related to the arrest is already available to the public and is probably going to be considered a non-exempt governmental record that should be disclosed under a Right to Know request. Even though that Facebook post is also part of the criminal discovery process and could be used as evidence in the case, it is a non-exempt public record and should be disclosed pursuant to a Right to Know request.