Conway Daily Sun v. SAU 9, Doc. No. 212-2008-E-067 (Carroll Super. Ct., June 27, 2008) (Houran, J.)

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Docket No. 08-E-067

The Conway Daily Sun


SAU 9, Superintendent Carl Nelson


In this action brought under New Hampshire's Right-to-Know Law, RSA Chapter 91-A, the petitioner The Conway Daily Sun asks that the court order the respondent SAU 9, through its Superintendent Carl Nelson, to release a report filed by a special investigator concerning allegations of workplace harassment at the Conway Elementary School.

The hearing was held on June 17, 2008. At the close of the hearing, the court granted the request of the parties to file post-hearing memoranda. Both parties have filed such memoranda, the last of which was received on June 25, 2007, and this matter is accordingly now ripe for consideration and decision.

The Conway School District received a number of complaints by employees about a school principal. SAU 9 engaged a third party firm to conduct an investigation of those complaints. Hundreds of pages of witness interview transcripts were produced, and the investigation ultimately concluded with the preparation of final reports over two hundred pages long.

The Conway Daily Sun's Petition to this court seeks release of those records, including the investigator's reports, the names of officials authorized to read the reports, the names of the officials who have read the reports, and the total cost of the investigation, including all fees paid to the lawyer working for SAU 9 and any other parties associated with the investigation. SAU 9 has since provided some of the information requested, but asserts that the investigatory records, including the investigator's reports, are exempt from disclosure under RSA 91-A:5 IV as records "pertaining to internal personnel practices."

[2] As a threshold matter, The Conway Daily Sun requests that the court review the records at issue in camera, which would mean an initial review of the documents by the presiding judge. The Conway Daily Sun asserts that such a review would assist the court in determining whether the report is subject to disclosure under the Right-to-Know Law, or whether the report must be disclosed but perhaps with portions which may be exempt from disclosure redacted. SAU 9 objects to an in camera review, asserting that as a matter pertaining to internal personnel practices the records are categorically exempt under RSA 91-A:5 IV and that, further, even were the court to consider the record on a page by page basis, it would find that the whole document contains information making it exempt from disclosure under the law.

The court finds Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006) instructive on this point. In that case, an employee of the North Conway Water Precinct alleged that he had been threatened and harassed by a co-worker. Id. at 2. The precinct, through its legal counsel, retained third-party investigators to investigate the complaint of harassment. Id. The investigators conducted interviews of each precinct employee as part of their investigation, and then prepared a report summarizing their investigation and making findings and recommendations. Id. The petitioners sought disclosure of the report under RSA Chapter 91-A. Id. The precinct declined to disclose the report, asserting that the report was exempt under RSA 91-A:5 IV. Id. at 2-3.

The trial court in Hounsell v. North Conway Water Precinct did not conduct an in camera review of the records sought. Id. at 5. On appeal, the Supreme Court noted that the trial court "would have been within its discretion to conduct an in camera review to determine whether any portion of the requested document . . . was, arguably, subject to public disclosure." Id. (citation omitted). The Supreme Court further noted, however, that in that case neither party made such a request to the trial court and the trial court proceeded to analyze the applicability of the RSA 91-A:5 IV exemption based upon the parties' offers of proof. Id. The Supreme Court also noted that in that case the petitioners had not requested a partial disclosure of the materials, instead arguing only that the entire report was outside the RSA 91-A:5 IV exemption from disclosure. Id. at 5-6.

[3] In the present case, unlike the petitioners in Hounsell v. North Conway Water Precinct, The Conway Daily Sun is requesting that the court conduct an in camera review, and is further requesting that, upon concluding that the materials are not categorically exempt under RSA 91-A:5 IV as pertaining to internal personnel practices, the court review the documents to order disclosure of all materials not otherwise exempt from disclosure, citing for example Petition of Keene Sentinel, 136 N.H. 121, 130 (1992).

The court determines that an in camera review will assist it in understanding the nature of the materials at issue. Such a review will assist the court in determining in the first instance whether the materials are categorically exempt from disclosure under RSA 91-A:5 IV as pertaining to internal personnel practices. If the materials are determined not to be categorically exempt under that statute, then a further in camera review, see e.g. Keene Sentinel, 136 N.H. at 130, will assist the court in determining whether and to what extent the materials may be released.

For the foregoing reasons, the respondent SAU 9 shall forthwith produce for the court's in camera review a copy of the records sought by the petitioner The Conway Daily Sun's Right-to-Know request.

So ordered.

June 27, 2008    /s/   

Steven M. Houran

Presiding Justice