STATE OF NEW HAMPSHIRE
CARROLL, SS SUPERIOR COURT
Docket No. 08-E-067
The Conway Daily Sun
v.
SAU 9, Superintendent Carl Nelson
ORDER
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 that the respondent SAU 9, through its Superintendent Carl Nelson, release reports filed by a special investigator concerning allegations of workplace harassment and misconduct at the Conway Elementary School. As explained in this order, the court concludes that under RSA 91-A:5 IV and Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006), the requested documents are records pertaining to internal personnel practices and are thus exempt from disclosure.
The hearing on the petitioner's request under the Right-to-Know Law 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.
By order dated June 27, 2008, the court determined that an in camera review would assist it in understanding the nature of the materials at issue. The court determined in particular that such a review would assist it 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, and then, if the materials were determined not to be categorically exempt under that statute, that a further in camera review would assist it in determining whether and to what extent the materials may be released. The June 27, 2008 order accordingly concluded by ordering that the respondent SAU 9 forthwith [2] 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.
In response to the court's June 27, 2008 order, the respondent SAU 9 produced the documents at issue, and the court has reviewed them in camera.
Upon consideration of the arguments and exhibits of the parties offered at the June 17, 2008 hearing, of the pleadings and memoranda of the parties, of the court's in camera review of the documents at issue, and of the applicable law, the court determines and orders as follows.
The Conway School District received a number of complaints by employees about a school principal alleging misconduct and harassment. SAU 9 engaged a third party investigator to conduct an investigation of those complaints. The investigator conducted interviews of the persons directly involved and of many others. The investigation ultimately concluded with the preparation and submission of final reports consisting of 84 single-spaced pages and more than 200 single-spaced pages of notes of witness interviews.
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 to 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 and witness interview notes, are exempt from disclosure under RSA 91-A:5 IV as records "pertaining to internal personnel practices."
RSA 91-A:5 IV provides in pertinent part that: "The following records are exempted from the provisions of [RSA Chapter 91-A, the Right-to-Know Law]: Records pertaining to internal personnel practices . . . ."
RSA 91-A:5 IV, read together with Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006), controls the outcome of this case. The fundamental facts underlying Hounsell are quite similar to the fundamental facts underlying this case. In that case, an employee of the North Conway Water Precinct alleged that he had been threatened and [3] harassed by a co-worker. Hounsell at 2. The precinct, through its legal counsel, retained third-party investigators to investigate the complaint of harassment. Id. The precinct's investigators conducted interviews of each precinct employee as part of their investigation. Id. The investigators ultimately prepared and submitted a report summarizing their investigation and making findings and recommendations. Id. The petitioners sought disclosure of the report under RSA Chapter 91-A. Hounsell at 3. The precinct declined the request to disclose the report, asserting that the report was exempt from disclosure under RSA Chapter 91-A as a confidential personnel document. Id.
The Hounsell petitioners then filed a petition in superior court seeking access to the investigators' report as well as all notes and transcripts, among other things. Id. The trial court denied that request, concluding that the report was exempt from disclosure under RSA 91-A:5 IV, and the petitioners appealed to the New Hampshire Supreme Court. Id.
The Supreme Court examined whether the Hounsell trial court erred by concluding that the investigators' report was exempt from public disclosure as an internal personnel practice under RSA 91-A:5 IV, and concluded that the trial court did not err. Hounsell at 4.
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). However, we generally interpret the exemptions in RSA chapter 91-A restrictively to further the purposes of the Right-to-Know Law. Id. at 626.
As with the respondent in Hounsell, the respondent here, SAU 9, is a public body subject to the Right-to-Know Law. As with the Hounsell Court, this court is mindful [4] that, while the legislature has determined that certain documents are categorically exempt from disclosure, the exemptions are to be interpreted restrictively to further the purposes of the Right-to-Know Law. See id. As in Hounsell, the nature of the allegations under investigation could have led to disciplinary action against the subject of the investigation. See Hounsell at 4.
Citing Fenniman, the petitioners in Hounsell argued that because Fenniman premised exemption upon "encourag[ing] thorough investigation and discipline of dishonest or abusive police officers," Fenniman, 136 N.H. at 627, and because the investigators' report in Hounsell was not an "internal police investigatory file," the Hounsell report was not categorically exempt. Hounsell at 4-5. The Hounsell Court determined, however, that such a distinction had "little relevance to the issue before us." Id. at 5. "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." Id.
The Hounsell Court went on the note that:
The [respondent] precinct also counters that public policy supports the investigation of complaints of misconduct by all public employees so that public bodies and agencies can take appropriate remedial action, especially where such a complaint alleges harassment or intimidation of another employee. It argues that the disclosure of records underlying, or arising from, internal personnel investigations would deter the reporting of misconduct by public employees, or participation in such investigations, for fear of public embarrassment, humiliation, or even retaliation. We find that the disclosure of the [investigators'] report would implicate policy concerns similar to those underlying the disclosure of an "internal police investigatory file," and we reject the petitioners' reliance upon this narrow factual distinction.
Hounsell, 154 N.H. at 5 (emphasis in original). The Supreme Court concluded that the Hounsell trial court did not err by determining that the investigators' report was exempt from public disclosure. Id.
This court likewise finds that disclosure of the investigator's reports or her underlying interview notes would implicate policy concerns similar to those underlying isclosure of internal police investigatory files found by the New Hampshire Supreme [5] Court to be exempt from disclosure in Fenniman, 136 N.H. at 627, see also Hounsell, 154 N.H. at 5. Public policy supports the investigation of complaints of misconduct by public employees, particularly where those employees are in positions of authority and particularly where allegations of misconduct or harassment of other employees are made. The willingness of employees to report perceived misconduct and to participate in investigations without fear of embarrassment, humiliation, or even retaliation, supports exemption from public disclosure of the reports of independent investigators concerning such allegations.
This court's in camera review of the reports of the SAU 9 independent investigator and of her notes of witness interviews supports these conclusions. These documents show a comprehensive and detailed investigation into personnel matters. The documents throughout contain the names and what appear to be candid observations of the witnesses interviewed, names of others thought to be involved or rumored to have additional information, personal information not just about the subject of the investigation but also about the witnesses themselves and about other employees, and even names and information about students and parents. In short, the documents contain the kind of information demonstrating exactly why an independent investigator into personnel matters should have free reign to gather information free of fear of public disclosure of that information.
The court concludes that the independent investigator's reports and witness interview notes requested by the petitioner in this case are "records pertaining to internal personnel practices" and are thus exempt from disclosure under RSA 91-A:5 IV. Hounsell, 154 N.H. at 4-6.
The petitioner here, unlike the petitioners in Hounsell, further requests that the court review the documents in camera not only to determine whether they are categorically exempt under RSA 91-A:5 IV, but also to determine whether the court may order disclosure of such materials as are not otherwise exempt from disclosure, citing Petition of Keene Sentinel, 136 N.H. 121, 130 (1992). Upon review of the documents in camera, the court concludes that there are no portions of the requested documents which are subject to public disclosure. As discussed above, it is the court's conclusion that [6] these documents are exempt under RSA 91-A:5 IV. Hounsell, 154 N.H. at 4-6. Further, however, the court's in camera review in any event shows that the documents focus exclusively on personnel matters and that they are suffused with the kind of confidential and personnel information - including names of witnesses, other employees, students and parents, information about those people, and candid observations about personnel practices - essential to an internal personnel investigation. Upon in camera review, the court concludes that no portions of the requested documents are subject to public disclosure.
For the foregoing reasons, the court concludes that the reports and witness interview notes of the independent investigator hired by SAU 9 sought by The Conway aily Sun are records pertaining to internal personnel practices and are thus exempt from disclosure under RSA 91-A:5 IV and Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006). The petition seeking disclosure of those documents under RSA Chapter 91-A, the Right-to-Know Law, is accordingly denied.
So ordered.