STATE OF NEW HAMPSHIRE
CARROLL SS SUPERIOR COURT
Docket No. 212-2013-CV-178
Josephine Amatucci
v.
Wolfeboro Police Department
ORDER ON PLAINTIFF'S RIGHT TO KNOW REQUEST
The plaintiff Josephine Amatucci (Ms. Amatucci) requests under RSA chapter 91-A, the Right to Know Law, that the defendant the Wolfeboro Police Department (the Department), be ordered to provide her with access to the Wolfeboro Police Department "police log" or "call log" for August 21, 2013, and to provide her with a copy of a recording of a call made to the Wolfeboro Police Department concerning the plaintiff made through the E-911 system. Ms. Amatucci initially made this request directly to the Department. The Department declined to provide the records sought, asserting that both records are exempt from disclosure under the Right to Know law, and Ms. Amatucci brought the matter here for resolution. The hearing on her Right to Know requests was held on November 20, 2013, with Ms. Amatucci representing herself and the Department appearing with counsel through its Chief, Stuart Chase. The court determines and orders as follows.
Background
The reason a citizen makes a request under the Right to Know Law has no bearing on whether the request is granted or denied. Instead, the only issue for the court is whether the Right to Know Law requires production of the requested records or does not. Here, however, some brief background is warranted in order to have context for one of Ms. Amatucci's assertions, to the effect that the Department has waived any exemption from the Right to Know Law by providing the documents to the Chief of the Wakefield Police Department.
On August 21, 2013 the Wolfeboro Police Department received a telephone call relay routed from the Enhanced 911 (E-911) answering facility. The call was from an off-duty Wakefield Police Department officer reporting to the effect that he observed a blue PT Cruiser [2] motor vehicle on Route 109 east in Wolfeboro erratically operated by an "elderly female driver" by tailgating and trying to pass on a double yellow line. The license plate number the caller reported indicated that the owner of the motor vehicle is Ms. Amatucci. The call was recorded, and a summary of the call was entered into the police log maintained by the Wolfeboro Police Department. Exhibit. 1. As that police log entry indicates, as a result of the call and the written report submitted by the caller to the Wolfeboro Police Department later the same day, the Department submitted a "DSMV 384" form to the Director of Motor Vehicles requesting a Motor Vehicle Driver Re-examination for Ms. Amatucci. Exhibit A.
Ms. Amatucci disputes that she was driving in Wolfeboro at the time reported, disputes that she has ever driven in the manner reported, and disputes that she has a driving record which would warrant a request for driver re-examination. She requested that the Department provide her with access to the police log for August 21, 2013 and a copy of the recording of any call the Department received from the off-duty Wakefield officer that day. The Department has provided Ms. Amatucci with the portion of the police log concerning the call and the Department's subsequent action, with a copy of the caller's subsequent written statement, and with a copy of the DSMV 384 form, but denied her request for access to the rest of the August 21, 2013 police log and her request for a copy of the recording of the caller's call. By her complaint and at the hearing Ms. Amatucci is requesting that the court order the Department to produce a copy of the day's "police log," with last names redacted, and a copy of the recording of the caller's call.
Analysis
The court first takes up Ms. Amatucci's request for a copy of the call received by the Department through the E-911 system and then turns to her request for the Department's "police log."
E-911 Recording
Records or any information compiled under the chapter of laws establishing the enhanced 911 system are exempt by statute, RSA 106-H:14, from being considered as public records for the purposes of the Right to Know Law.
RSA 106-H:14 provides in full as follows:
[3] Any information or records compiled under this chapter shall not be considered a public record for the purposes of 91-A regardless of the use of such information under paragraph I or II. Notwithstanding any provision of law to the contrary, the bureau shall only make information or records compiled under this chapter available as follows:
I. On a case-by-case basis to a law enforcement agency that requires the information or records for investigative purposes; and
II. To the department of environmental services solely for the purpose of estimating the location of wells subject to RSA 482-B. Information shared with the department of environmental services under this provision shall be limited to geographic information systems data that will aid in locating such wells. The department of environmental services shall not release such shared data under RSA 91-A.
Ms. Amatucci argues that the recording of the E-911 call she seeks should nonetheless be released to her because other law enforcement departments release such recordings upon request. Without knowing, but for purposes of this order only assuming without deciding, that other departments do so, such a practice by another law enforcement agency, or by other such agencies, could not override what the law, RSA 106-H:14, plainly states: Any information and records compiled under the E-911 statutes are not public records subject to disclosure under the Right to Know Law.
Ms. Amatucci further argues that because the Wolfeboro Police Department released a copy of the recording of the E-911 call at issue here to Chief Fifield of the Wakefield Police Department, any exemption from the Right to Know Law has been waived. Again, the answer is compelled by statute. RSA 106-H:14, I, provides that E-911 information and records may be disclosed "[o]n a case-by-case basis to a law enforcement agency that requires the information or records for investigative purposes," and RSA 106-H:14 further provides that any such disclosure does not affect the status of that information or records as not public records subject to disclosure under the Right to Know Law. Here, Ms. Amatucci lodged a complaint with Wakefield Chief Fifield concerning the off-duty Wakefield police officer who made the E-911 call to the Wolfeboro Police Department, and it was in connection with Chief Fifield's investigation of that complaint that the Wolfeboro Police Department provided Chief Fifield with the E-911 recording. The statute, RSA 106-H:14 and 106-H:14, II, makes it clear that [4] such disclosure does not change the status of such records from non-public documents not subject to disclosure under the Right to Know Law into public documents which must be disclosed under the Right to Know Law.
For the foregoing reasons, Ms. Amatucci's request for a copy of the recording of the call made through the E-911 system was properly denied because the recording is not, as a matter of statutory law, RSA 106-H:14, a public record subject to disclosure under the Right to Know Law.
Police Log
Ms. Amatucci asks that the Department be ordered to provide her with a copy of the police log for the day in question, with the last names of those referenced in the log redacted. The Department objects, asserting that the log is a law enforcement document which under Murray v. N.H. Div. of State Police, 154 N.H. 579 (2006), the Right to Know Law does not require to be disclosed.
To withhold materials under Murray, an agency must "establish that the records at issue were compiled for law enforcement purposes, and that the material satisfies the requirements of one of the subparts of" the Murray test, but does not need to establish that the materials are investigatory in nature. Montenegro v. City of Dover, 162 N.H. 641, 646 (2011) (citation omitted).
In Murray, the New Hampshire Supreme Court exempted:
"records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such [5] disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual ... ."
Murray, 154 N.H. at 582 (quoting 5 U.S.C. ยง 552(b)(7) (2002)). The agency seeking to withhold bears the heavy burden of establishing both that what is sought constitutes records or information compiled for law enforcement purposes and that one of the six Murray tests applies. The citizen requesting disclosure bears no burden to prove either that the documents are not compiled for law enforcement purposes or that none of the Murray tests applies.
Here, the Department invokes Murray test (A), asserting that disclosure would interfere with law enforcement by chilling the willingness of the public to contact the police to report criminal activity or to cooperate with the police, test (B), asserting that release of the information in the logs could deprive those charged of a right to a fair trial or an impartial adjudication, test (C), asserting that release of information concerning such things as medical emergencies and domestic violence complaints would interfere with rights to privacy, and test (D), asserting that the logs contain information concerning confidential informants and information furnished by confidential sources.
The Department describes the nature of the documents requested by offer of proof and statements on the record under oath of Chief Chase. The Department maintains a log of all communications made to the Department's dispatchers, whether calls referred through E-911, direct telephone calls to the Department, or walk-in reports. That log is referred to by the parties for ease of reference as the police log. The Department creates and maintains the log notes to aid it in its law enforcement role. The logs contain information about ongoing criminal activity resulting in immediate police response, information concerning or in aid of ongoing investigations, and requests for police assistance. The log notes include things such as references to known or suspected drug users or sellers, allegations of domestic violence, reports concerning criminal activity from confidential or anonymous sources, and reports of emergencies and accidents.
As such, the logs plainly constitute records or information compiled for law enforcement purposes by a law enforcement agency, see e.g. 38 Endicott St. N., LLC v. State Fire Marshal, 163 N.H. 656, 662 (2012), so the question here is whether under one or more of [6] the Murray tests the Department is permitted to withhold the logs from disclosure. The court determines that the Department has met its burden of showing that the adverse consequence addressed by Murray test (A) exists should the documents be ordered disclosed, and thus that the Department has met its burden of showing that its police logs are not required to be disclosed under the Right to Know Law. Because application of Murray test (A) resolves the issue, the court need not, so does not, reach or decide whether the Department has also met its burden under Murray tests (B), (C), and (D).
An agency asserting exemption under Murray test (A) may not rely on a blanket assertion that the documents sought constitute records or information in investigatory files compiled for law enforcement purposes. Murray, 154 N.H. at 583. Instead, the agency must meet a "minimum threshold of disclosure in order to justify its refusal to disclose." Id. (citation omitted). "The agency is not required, however, to justify its refusal on a document-by-document basis." Id. (citation omitted). An in camera review or preparation of a "Vaughn index" is not necessarily required for the trial court to determine whether the agency's refusal to disclose is justified. Id. In the present case, as in Murray, generic determinations, justified on a category-of-document by category-of-document basis, suffice. See id.
Examples of types of categories which satisfy these Murray principles include: "details regarding initial allegations giving rise to th[e] investigation; interviews with witnesses and subjects; investigative reports furnished to the prosecuting attorneys; contacts with prosecutive attorneys regarding allegations, subsequent progress of investigations, and prosecutive opinions . . . ." Murray, 154 N.H. at 583-584 (quoting Curran v. Department of Justice, 813 F.2d 473, 476 (1st Cir. 1987). In the present case, the Department has met its burden of demonstrating that the information in the logs falls squarely into two of the Murray/Curran categories, because by the offers of proof and statements under oath presented the Department has demonstrated that the log notes consist of information coming in to the department used to initiate law enforcement investigations or interviews1 with witnesses or subjects, or both.
Ms. Amatucci asserts that because other police departments make redacted copies of their police logs available to the public this Department should be ordered to do so as well. [7] Again assuming for purposes of this order, but without deciding, that other police departments redact out information which might, for example, chill public inclination to report crimes or invade individual rights to privacy, and make the redacted logs publically available, the court again observes that the voluntary actions of one agency cannot bind another. For the reasons set out above, this police department has met its burden of showing that these police logs qualify as exempt from mandatory disclosure under the Right to Know Law.
Ms. Amatucci also asserts that the Department disclosed the entire police log for the day in question to the Wakefield Police Department and thus waived any right to claim that the log is exempt from public disclosure. The Department asserts that it disclosed to the Chief of the Wakefield Police Department only the same portion of the log that it has disclosed to Ms. Amatucci. The court need not resolve this factual dispute because in any event disclosure of the log by the police chief of one department to the police chief of another for use in connection with investigation of a citizen complaint about one of that chief's officers does not constitute waiver by disclosure. As noted above, Ms. Amatucci lodged a complaint with Wakefield Chief Fifield concerning the off-duty Wakefield police officer who made the report to the Wolfeboro Police Department, and it was in connection with Chief Fifield's investigation of that complaint that the Wolfeboro Police Department provided Chief Fifield with access to the log.
Conclusion
For the foregoing reasons, Ms. Amatucci's request that the court order the Wolfeboro Police Department to provide her with access to the recording of the E-911 call and to the police log for August 23, 2013 is denied.
So ordered.
Order vacated 1/3/14, see order re: recusal of that date.
1 The term "interviews" is used here in its ordinary sense as discussions by which information is provided, here by witnesses or subjects.