Conway Daily Sun v. Conway School District, Doc. No. 212-2011-CV-257 (Carroll Super. Ct., January 27, 2012) (Houran, J.)

[1]

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 School 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 School District on October 28, 2011. The District declined to release the documents. It did so not categorically, however, but instead to provide the intervenor, Mr. Davison, 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 School 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.

[2] "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 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 School District has received documents concerning Mr. Davison's conduct, inter alia, 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);

"Public officials must recognize their official capacities often expose their private lives to public scrutiny." City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1324 (Alaska 1982) (as quoted in Lambert v. Belknap Cty. Convention 157 N.H. 375, [3] 383-84 (2008); see also Lambert, 157 N.H. at 383 (noting distinction between the general privacy interests of citizens and the interests of those seeking elected office).

"[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.

With the above principles in mind, by order dated December 29, 2011 the court determined that an in camera review of the documents at issue was warranted. The court accordingly ordered that the Conway School District 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 District3 discussing, addressing, or responding to that correspondence in any way.

Those documents were received by the court from the School District under seal on January 17, 2012. The court has now completed its review of the documents in camera and of the applicable law, and determines first that many of the documents must be disclosed under RSA Chapter 91-A and second that the documents must be redacted before disclosure to remove both confidential and irrelevant information.

Review of the documents shows that, while there is a privacy interest at stake that would be invaded by the disclosure, disclosure of the requested information would inform the public about the conduct and activities of their government. All of the documents to be disclosed concern public sporting events in which schools under the jurisdiction of the Conway School Board participated or events otherwise on school grounds. Further, while Mr. Davison's privacy interest as a parent attending school sporting events would be invaded by disclosure, he is also a member of the school board [4] having jurisdiction over the schools participating in such events, and "[p]ublic officials must recognize their official capacities often expose their private lives to public scrutiny," Lambert, 157 N.H. at 383-84.

Critical to the balancing that the court must perform of the public interest in disclosure against any government interest in nondisclosure and the individual's privacy interest in nondisclosure is whether the government bodies receiving the documents simply received and stored the documents. This is so because, as the Conway School District correctly asserted at the hearing, if it was acting as no more than a repository of information about a private citizen, the balance would tip more heavily in favor of nondisclosure. See e.g. Lamy, 152 N.H. at 113. "[T]he 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." Id. (emphasis in original) (internal quotation and citation omitted).

Upon review of the documents at issue in camera, the court determines that the School District did more than simply receive and warehouse information. The documents show that the information was forwarded from administrator to administrator and was subject to internal discussions among administrators, and the documents show at least two instances that they resulted in discussions by school administrators directly with Mr. Davison. These are government activities and, at least in the context of Mr. Davison's dual status as not only a private citizen who is the parent of a student but also a member of the School Board appearing at school facilities or events, tips the balance in favor of disclosure.

That this information is at least in part derivative of information already in the public domain does not tip the balance in this case from disclosure to nondisclosure, as in camera review shows that these documents were not simply received and warehoused, and that accordingly any derivative use of the information is not the only public interest in disclosure. See Lamy, 152 N.H. at 113.

Thus, having balanced the public interest in disclosure against any government interest in nondisclosure and Mr. Davison's privacy interest in nondisclosure, Lamy, 152 [5] N.H. at 109, the court determines that portions of the documents must be disclosed pursuant to RSA Chapter 91-A.

Not all of every document is, however, to be disclosed. One or more of the documents contain information that is both responsive to the Sun's Right to Know request and outside of that request; information outside of the request need not be provided.

More critically, Mr. Davison, both in his memorandum and at hearing, correctly notes that should the court order disclosure, there are significant privacy rights of third parties, particularly students, which would be violated should the documents be disclosed without redaction. Both the names of students and information which could lead a reasonably informed person to discern the names of students must not be disclosed. See e.g. Brent v. Paquette, 132 N.H. 415, 427-28 (1989) (disclosure of student's names and addresses as invading the student's privacy); see also 20 U.S.C. ยง 1232g (Family Educational Rights and Privacy Act of 1974 (FERPA)). Avoiding such disclosure will in this case require redacting not only any reference to students by name but also by identifying information such as uniform number. It will also require redacting the names of many of the persons who provided the School District with the information at issue, as many of those people identify themselves as parents of children attending school events, and their names would lead a reasonably informed reader to understand the name of the student.

For the foregoing reasons, the court grants the petition for disclosure of information filed by the Conway Daily Sun pursuant to RSA Chapter 91-A, the Right to Know Law. That disclosure is, however, to be made only as to portions of documents responsive to the Right to Know request, and only after redaction of students' names and of any information which could lead a reasonably informed person to discern the names of students.

Superior Court Rule 59-A provides for a ten day period following the issuance of a court order within which any party may seek reconsideration of that order should that party believe the order misapprehends or overlooks any point of law or of fact. In a Right to Know case, immediate disclosure of documents pursuant to a court order renders the [6] opportunity to seek reconsideration meaningless.4 Accordingly, disclosure of the documents subject to this order is not to occur either until ten days from the date of the Clerk's notice of this order have passed without filing of a motion for reconsideration or, if such a motion is filed within that ten days, until the court has ruled on that motion.5

So ordered.

January 27, 2012    /s/   

Steven M. Houran

Presiding Justice


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 Other than attorney-client documents privileged within the meaning of, e.g., N.H. Rule of Evidence 502.

4 There are cases in which the public's right to disclosure is sufficiently pressing that courts exercise their authority to waive Rule 59-A and order immediate disclosure. This is not such a case.

5 In order to aid the Conway School District in determining whether it wishes to move for reconsideration, particularly but not exclusively as to its obligations under Brent, 132 N.H. at 427-28 (1989) and FERPA, and in order to assist the School District's understanding of the court's view of what must be provided in order to comply with the Conway Daily Sun's Right to Know request and what must be redacted under Brent and FERPA, the court is enclosing with the copy of this order issued to the School District only copies of the documents which the court has determined must be disclosed, redacted the minimum extent the court believes necessary to be responsive to the Right to Know request and to comply with student privacy rights.