Amatucci v. Hamilton, Doc. No. 212-2008-CV-117 (Carroll Super. Ct., March 11, 2009) (Houran, J.)

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Docket No. 08-C-117

Josephine Amatucci


Officer Charles Hamilton;
Officer James O'Brien;
Town of Wolfeboro;
Wolfeboro Police Department;
Chief Brien (sic: Brian) Black;
Commissioner James Lawry; and
Commissioner Joseph Melanson


Pending before the court is the plaintiff's "Motion for Access to Police 'Investigative Files'" (court index 37). The defendants object (court index 38). The court determines and orders as follows.

The plaintiff seeks disclosure of "the police 'Investigative Files,' or internal affair files under the Right-to-Know Law," RSA Chapter 91-A. She asserts that she "only seeks information on her records" and that she is entitled to access to "the investigative files, internal files, in the 2002 seizure."

The plaintiff has appealed the underlying case to the New Hampshire Supreme Court, and her appeal has been accepted. "As a general rule the perfection of an appeal divests the Trial Court of jurisdiction of the cause and transfers it to the appellate court. However, the general rule . . . does not prohibit the Trial Court from passing on collateral, subsidiary or independent matters affecting the case." State v. Gubitosi, 153 N.H. 79, 81 (2005) (citations and internal quotations omitted).

For purposes of ruling on the pending motion, the court assumes without deciding that the motion raises an issue collateral or subsidiary to, or independent from, the matters affecting the case on appeal.

[2] The defendants represent through counsel that they have made available to the plaintiff for inspection and copying at the police station all information the police department has that is not privileged. The defendants also represent through counsel that neither of the officers involved were investigated by internal affairs in relation to the plaintiff.

Accordingly, the court presumes that what the plaintiff is seeking is access to the personnel files of the two officers involved, Officer Hamilton and Officer O'Brien. Such records are categorically exempt from disclosure under RSA 91-A:5, IV.

The Right-to-Know Law provides that "[e]very citizen . . . has the right to inspect all public records, including minutes of meetings of the bodies or agencies . . . except as otherwise prohibited by statute or RSA 91-A:5." RSA 91-A:4, I (Supp. 2005). It is undisputed that the precinct is a public body subject to the Right-to-Know Law. Among other things, however, RSA 91-A:5, IV (Supp. 2005) exempts from disclosure "[r]ecords pertaining to internal personnel practices." We have recognized that the traditional balancing test employed in Right-to-Know cases, see, e.g., Chambers v. Gregg, 135 N.H. 478, 481, 606 A.2d 811 (1992), is not necessary where "the legislature has plainly made its own determination that certain documents are categorically exempt." Union Leader Corp. v. Fenniman, 136 N.H. 624, 627, 620 A.2d 1039 (1993).

Hounsell v. North Conway Water Precinct, 154 N.H. 1, 3 (2006), Thus, while the exemptions are to be interpreted restrictively to further the purposes of the Right-to-Know Law, see id., the legislature has determined that records such as these are categorically exempt from public disclosure, see Fenniman, 136 N.H. at 627.

For the foregoing reasons, the plaintiff's motion for access to police investigative files is denied.

So ordered.

March 11, 2009    /s/   

Steven M. Houran

Presiding Justice