STATE OF NEW HAMPSHIRE
CARROLL, SS SUPERIOR COURT
Docket No. 212-2011-CV-257
Conway Daily Sun, Plaintiff
v.
Conway School District, Defendant
and
Randy Davison, Intervenor
ORDER
The Conway Daily Sun (the Sun) petitions for access under New Hampshire's Right-to-Know Law, RSA Chapter 91-A, to copies of any correspondence received by the Conway School District (the District) addressing any "inappropriate behavior" by Conway School Board Member Randy Davison (Mr. Davison).1
The Sun submitted its Right to Know request to the District on October 28, 2011. The District has declined to release the documents, not categorically but instead to provide the intervenor an opportunity to be heard on the issue. The District asserts that it acted appropriately because Mr. Davison is both a member of the School Board and a private parent of a student and that the District was accordingly required to proceed with caution so as to avoid disclosure to the extent it is acting as a repository of information about a private citizen, see e.g. Lamy v. N.H. Public Utilities Commission, 152 N.H. 106, 113 (2005) ("the central purpose of the Right-to-Know Law 'is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed'" (quoting U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 774 (1989) (emphasis in original)).
Hearing, at which the Sun, the District, and Mr. Davison appeared and presented argument and offers of proof, was held on December 22, 2011. The court determines and orders as follows.
"To advance the purposes of the Right-to-Know Law, we construe provisions favoring disclosure broadly and exemptions narrowly." Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996). By so doing, the court "best effectuate[s] the statutory and constitutional objective of facilitating access to all public documents." Union Leader Corp. v. N.H. Housing Finance Authority, 142 N.H. 540, 546 (1997).
The Right-to-Know Law specifically exempts from disclosure "files whose disclosure would constitute invasion of privacy." RSA 91-A:5, IV. "This section of the Right-to-Know Law means that financial information and personnel files and other [2] information necessary to an individual's privacy need not be disclosed." Lamy, 152 N.H. at 109 (citation and internal quotation omitted).
Here, it is undisputed that the District has received documents concerning Mr. Davison's conduct at school sporting events, and it is undisputed that Mr. Davison is both a member of the School Board and a parent of a student who participates in school sporting events.
When the privacy interests of an individual are potentially implicated by a Right to Know request, the court uses a three-part test, ultimately balancing the public interest in disclosure with any governmental interest in nondisclosure and the individual's right to privacy:
We engage in a three-step analysis when considering whether disclosure of public records constitutes an invasion of privacy under RSA 91-A:5, IV. First, we evaluate whether there is a privacy interest at stake that would be invaded by the disclosure. If no privacy interest is at stake, the Right-to-Know Law mandates disclosure.
Next, we assess the public's interest in disclosure. Disclosure of the requested information should inform the public about the conduct and activities of their government. Finally, we balance the public interest in disclosure against the government interest in nondisclosure and the individual's privacy interest in nondisclosure.
Lamy, 152 N.H. at 109 (citations omitted). "The party resisting disclosure bears a heavy burden to shift the balance towards nondisclosure." Id. (citation omitted).
"[W]hen there is a question whether materials are exempt from public access, the trial judge should conduct an in camera review2 to determine whether portions of the materials meet any of the other statutory exemptions." Professional Firefighters v. HealthTrust, Inc., 151 N.H. 501, 506 (2004) (citation and internal quotation omitted). In camera review is particularly appropriate where the court is unable to discern from the record the nature of the records at issue, see id. at 507, and where release of the records may cause an invasion of privacy, see Union Leader v. Nashua, 141 N.H. at 478.
In this case, in camera review of the documents at issue will assist the court in determining whether there is a privacy interest at stake that would be invaded by the disclosure, whether disclosure of the requested information would inform the public about the conduct and activities of their government, and ultimately whether, upon balancing the public interest in disclosures3 against the government interest in nondisclosure and the individual's privacy interest in nondisclosure, the documents must be disclosed. Further, should the court determine upon in camera review that any of the documents must be disclosed, that review will enable the court to redact any portions which may be categorically excluded from disclosure, see e.g. Brent v. Paquette, 132 N.H. 415, 427-28 (1989) (student's names and addresses); 20 U.S.C. ยง 1232g (Family Educational Rights and Privacy Act of 1974).
[3] For the foregoing reasons, the Conway School District shall produce under seal for the court's in camera review a copy of any correspondence, whether paper or electronic, received by the District addressing allegedly inappropriate behavior by Randy Davison, together with any documents generated by the District4 discussing, addressing, or responding to that correspondence in any way.
So ordered.
1 Mr. Davison's motion to intervene in this case has been granted by the court.
2 Such a review involves submission of copies of the documents at issue under seal to be reviewed by the presiding judge only.
3 In this regard, in camera review will also assist the court in determining the merits of Mr. Davison's assertion that a "derivative use" of the documents sought is the only public interest in their disclosure, the public interest in disclosure "has little weight," see Lamy, 152 N.H. at 113.
4 Other than attorney-client documents privileged within the meaning of, e.g., N.H. Rule of Evidence 502.