STATE OF NEW HAMPSHIRE
CARROLL, SS SUPERIOR COURT
Docket No. 212-2013-CV-099
Josephine Amatucci
v.
Chief Stuart Chase, Town of Wolfeboro Police Department
FINAL ORDER
By order dated September 5, 2013, the court ordered the respondent to "produce to the court under seal for in camera review and within 10 days of the date of the Clerk's notice of this order a true copy of Officer O'Brien's employment records with the Town of Wolfeboro, including without limitation any documents as may exist which show the hours he worked and including without limitation documents already provided to the petitioner." The court has received documents under seal1 from the respondent through respondent's attorney in two packets, each labeled "Personnel File for James R. O'Brien," has reviewed them in camera, and determines and orders as follows.
In order to provide background for this order, the court repeats in its entirety the substance of its September 5, 2013 order, as follows:
Josephine Amatucci (Ms. Amatucci or the petitioner) petitions for access under New Hampshire's Right-to-Know Law, RSA Chapter 91-A, to the employment records of former Wolfeboro Police Officer James O'Brien. She explains in her petition the particular documents she seeks, that is, his termination letter and his time records, particularly for the last period of his employment with Wolfeboro. [Footnote in original: She also explains in her petition the reasons she seeks access to such records. However, the reason a citizen seeks access to public records has no bearing on the right to access those records and accordingly need not be stated, and where stated is not material to the court's determination.] Ms. Amatucci's petition states that she seeks access to the original documents, and not in camera review of the documents by the court.
The respondent, Wolfeboro Police Chief Stuart Chase (Chief Chase or the respondent), objects. In his objection, he explains that he believes that the documents sought are exempt from disclosure under RSA 91-A:5, IV, and that the [2] issue has already been heard and decided in a previous case brought by Ms. Amatucci against the Town of Wolfeboro seeking access to police records.
The hearing was held on September 6, 2013. Ms. Amatucci appeared and is representing herself. Chief Chase appeared with and through counsel. 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: "Records pertaining to internal personnel practices; . . . and personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute an 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 v. N.H. Public Utilities Commission, 152 N.H. 106, 109 (2005) (citation and internal quotation omitted).
Chief Chase asserts that he has provided such documents sought concerning Officer O'Brien's last work period as exist, specifically the Personnel Action Request concerning Officer O'Brien's resignation (Exhibit A to Respondent's Answer) and the Payroll History Sheet for Officer O'Brien (Hearing Exhibit A), and that the balance of the personnel file is categorically exempt from disclosure under RSA 91-A:5, IV. Ms. Amatucci asserts that on information and belief more detailed records of the hours worked by Officer O'Brien during his last period of employment exist. Chief O'Brien further asserts that these issues were heard and resolved by the court in Amatucci v. Hamilton, et al, Carroll County Superior Court Docket No. 212-2008-CV-117 (Order of March 11, 2009). Ms. Amatucci asserts that the documents sought then and the documents sought now are different.
"[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).
Accordingly, in order to resolve both of the disputes between the parties, as to the nature of the records held by the respondent and as to whether this action is barred by the court's 2009 order on the petitioner's request for access to documents, the court should, and so does, order in camera review of the documents at issue. See e.g. id.
Consistent with the foregoing, the respondent shall produce to the court under seal for in camera review and within 10 days of the date of the Clerk's notice of this order a true copy of Officer O'Brien's employment records with the Town of Wolfeboro, including without limitation any documents as may exist which show [3] the hours he worked and including without limitation documents already provided to the petitioner.
Upon completion of its in camera review, the court will issue a further order.
Since the issuance of the September 5, 2013, Ms. Amatucci has filed, among other pleadings, a motion to amend her request, narrowing its focus to Weekly Time Sheets for Officer O'Brien for the entire month of December 2003 and the first two weeks of January 2004. By separate order, the court has granted her request to narrow her Right-to-Know request to those Weekly Time Sheets.
The court has examined all of the documents submitted by the respondent in response to the September 5, 2013 order, and finds no Weekly Time Sheets for Officer O'Brien for December 2003 or January 2004. The court did find several documents which contain information, either direct or by reasonable inference, concerning Officer O'Brien's work hours or employment status during December 2003 or January 2004. Although the court understands from the respondent's pleadings that the respondent has already provided these documents to the petitioner, in order to ensure that the petitioner has them, the court nonetheless attaches copies of those documents to this final order on her Right-to-Know petition.
The respondent seeks attorney's fees for having to respond to this legal action, asserting that the petitioner is raising here the same issue she raised in a 2008 case, Amatucci v. Hamilton, et als, Carroll County Superior Court Docket No. 08-C-117, and resolved in that case by an order of this court dated March 11, 2009. Here, Ms. Amatucci seeks access to a particular portion of Officer O'Brien's personnel file. There, Ms. Amatucci sought access to "police 'Investigative Files,' or internal affairs files," concerning a particular incident. Her requests are sufficiently differentiated that her action here is not the kind of frivolous or unreasonable litigation, or an action without any reasonable claim in the law as it is, or as it might arguably be held to be, as to warrant an award of attorney's fees. See e.g. Superior Court Rule 59; Keenan v. Fearon, 130 N.H. 494, 502 (1988); Harkeem v. Adams, 117 N.H. 687, 691 (1977). The respondent's request for attorney's fees is denied.
So ordered.
1 The Superior Court Protocol for Handling In Camera Documents applies to the documents submitted under seal in this case, and accordingly the documents submitted under seal shall be maintained under seal by the Clerk and then destroyed by the Clerk after 10 years, still under seal, as set out in that Protocol.
2 Such a review involves submission of copies of the documents at issue under seal to be reviewed by the presiding judge only.