Union Leader v. N.H. Retirement System, Doc. No. 216-2010-E-105 (Hillsborough Super. Ct. North, September 2, 2010) (Garfunkel, J.)

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Union Leader Corporation


New Hampshire Retirement System

Docket No. 10-E-0105


On June 4, 2010, the court held a hearing on petitioner Union Leader Corporation's petition for access to public records and respondent New Hampshire Retirement System's objection. Upon due consideration of the parties' arguments and pleadings and the applicable law, the court GRANTS the petition.

This case arises out of the following facts. On February 12, 2010, Beth LaMontagne Hall, a news-gathering correspondent working for Union Leader, submitted a written request for information to the New Hampshire Retirement System (NHRS), seeking a list of the names of the five hundred state retirement system members who received the highest annual pension payments in 2009 and the amounts of these payments.

NHRS denied the request on February 19, 2010. NHRS offered to provide Union Leader with a list of all annuities paid by the state, ranked from highest to lowest, identifying the type of annuity, member category (teacher, fire, police, employee), and whether the annuitant's last employer was the State of New [2] Hampshire or a political subdivision. The list did not include names of the annuitants.

On March 18, 2010, Union Leader filed a petition for access to public records pursuant to the Right to Know Law, codified at RSA 91-A, seeking the names of the retirees. Specifically, Union Leader argues that RSA 91-A:4, I-a (Supp. 2009) requires that the requested records be made available for public inspection.

RSA 91-A:4, I-a provides that

[r]ecords of any payment made to an employee of any public body or agency listed in RSA 91-A:1-a, VI(a)-(d), or to the employee's agent or designee, upon the resignation, discharge, or retirement of the employee, shall immediately be made available without alteration for public inspection. All records of payments shall be available for public inspection notwithstanding that the matter may have been considered or acted upon in nonpublic session pursuant to RSA 91-A:3.

NHRS argues that the plain language of RSA 91-A:4, I-a does not include payments made to retirees. It argues that retirees are not "employees," that benefits paid over time are not paid "upon" retirement, and that retirement benefits are not paid "in addition to regular salary" as required by the statute.

The interpretation of a statute is a matter of law. Goodreault v. Kleeman, 158 N.H. 236, 252 (2009). The court will consider the statute as a whole and construe the language in accordance with its plain and ordinary meaning. Id. If the statute's language is plain and unambiguous, the court need not took beyond it for further indication of legislative intent, and will not consider what the legislature might have said or add language that the legislature did not see fit to [3] include. Id. at 253. By contrast, if the statute is ambiguous, the court will look to the legislative history to aid its analysis. Id.

"Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme." Id. (quotation omitted). In light of the statutory purpose of "ensur[ing] the greatest possible public access to . . . records of public bodies, and their accountability to the people," RSA 91-A:1 (2001), the provisions in the Right to Know Law favoring disclosure will be construed broadly while the provisions citing exemptions will be construed narrowly. Lamy v. N.H. Pub. Utils. Comm'n, 152 N.H. 106, 108 (2005).

Because RSA 91-A:4 is a provision providing for disclosure, the court will interpret this section broadly. Accordingly, the court concludes that the language of the statute is unambiguous: any payments made to state employees that have retired are subject to mandatory disclosure.

NHRS argues that because retirees no longer work for the state, they are not "employees" under the statute.

The court, however, rejects this argument in light of the plain meaning of the statute. The statute's scope is limited to payments made to employees that have been fired, have retired, or have resigned. Thus, the statute pertains only to former employees. To include only current employees within the scope of the statute, as NHRS argues, would render the statute completely meaningless because no records would fall within its purview. The court declines to accept such an interpretation.

[4] NHRS further argues that the term "upon" contemplates a one-time payment made at the exact moment of retirement, not extended benefits paid over time.

"Upon" used in this context is defined as "immediately or very soon after." Webster's Encyclopedic Unabridged Dictionary of the English Language 1570 (unabridged ed. 1989). While the term "immediately" clearly incorporates one-time payments made at the moment the employee retires, the phrase "very soon after" includes additional payments made following retirement. In light of the broad interpretation the court is required to afford to the provision at issue, the court concludes that "upon" does not limit the statute to one-time payments remitted at the moment of retirement, but instead contemplates payments made both immediately at the moment of retirement and during the duration of retirement. See Zorn v. Demetri, 158 N.H. 437, 440 (2009) (court will not "make a fortress out of the dictionary," "but [will] remember that statutes always have some purpose or object to accomplish" and therefore, in interpreting the statute, the court will "keep in mind the intent of the legislation and not simply examine isolated words or phrases found therein.") (quotation omitted).

Finally, NHRS argues that retirement benefits are not "paid in addition to regular salary and accrued vacation, sick, or other leave."

The court disagrees. An employee's salary and any leave he or she receives are separate and distinct from the employee's retirement benefits. A salary and leave are received and taken during the course of employment. [5] Retirement benefits are received after employment has ceased. Thus, retirement benefits are "paid in addition to regular salary and accrued . . . leave."

Accordingly, the court concludes that the plain language of RSA 91-A:4 mandates disclosure of the records pertaining to retirement benefits paid to public employees.

NHRS also argues that disclosure of the names of the retirees infringes on the retirees' privacy interests. NHRS contends that the privacy interests outweigh any public interest in disclosure.

RSA 91-A:5 specifically exempts from disclosure "files whose disclosure would constitute invasion of privacy." RSA 91-A:5, IV (Supp. 2009). In determining whether disclosure of public records constitutes an "invasion of privacy," the court will conduct a three step analysis. Lamy, 152 N.H. at 109.

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.

Id. (citations omitted). In evaluating whether disclosure constitutes an "invasion of privacy," "[t]he party resisting disclosure bears a heavy burden to shift the balance towards nondisclosure." Id.

NHRS asserts, relying on Lamy v. New Hampshire Public Utilities Commission, that the individual retirees have privacy interests in their names and addresses. In Lamy, the petitioner sought the names and address of customers of a public utility. 152 N.H. at 108. The New Hampshire Supreme Court held [6] that the private customers of the utility had a privacy interest in their names and addresses. Id. at 110. The Lamy Court concluded that the privacy interest was founded on the "ability to retreat to the seclusion of one's home and to avoid enforced disclosure of one's name and address." Id. (quotation and brackets omitted). In addition, the Court noted that the privacy interest existed to avoid "the influx of unwanted, unsolicited mail or the telephone calls and visits [to the customers] that could follow from disclosure of their names and home addresses." Id.

Unlike the request in Lamy, Union Leader's request here does not include the addresses of the retirees. Therefore, Union Leader's limited request does not raise the same concerns expressed by the Lamy Court relative to "the influx of unwanted, unsolicited mail or the telephone calls and visits." Further, in light of the fact that the retiree's addresses are not being sought, their "ability to retreat to the seclusion of [their] home[s]" is preserved. The court concludes, therefore, that Lamy is not determinative.

The New Hampshire Supreme Court addressed the release of names and salary information under RSA 91-A:4 in Mans v. Lebanon School District, 112 N.H. 160 (1972). In Mans, the Court stated that "for many years in this state salaries of public officials and employees, state and municipal, have been commonly published by statute or made available to the public or disclosed voluntarily without significant damage to individual dignity or the efficient management of the state system." 112 N.H. at 183. The Mans Court therefore determined that "[t]he salaries of public employees and schoolteachers are not [7] intimate details the disclosure of which might harm the individual." Id. at 164 (quotation and ellipsis omitted). The Mans Court further concluded that the disclosure of this information did not constitute an "invasion of privacy" under the RSA 91-A:5. Id.

Union Leader's request for the names and retirement benefits of retired state employees is analogous to the petitioner's request for the names and salaries of teachers in Mans. While retirees are no longer public employees, they are still receiving public funds in the form of retirement benefits. Since disclosure of public employees' names and salaries does not invade their privacy interests, the court concludes that the disclosure of retirement benefits and names of public employees likewise does not invade any privacy interest. Therefore, disclosure of the names and amounts of benefits is mandatory. See Prof. Firefighters of N.H. v. Local Gov't Ctr, Inc., 159 N.H. 699, 708-709 (2010) (following Mans and finding that disclosure of names and salaries of private employees of public organization does not violate privacy interest).

Union Leader seeks to recover its attorney's fees under RSA 91-A:8 (Supp. 2009).

RSA 91-A:8 provides

If any public body or agency or employee or member thereof, in violation of the provisions of this chapter, refuses to provide a governmental record . . . to a person who reasonably requests the same, such public body, public agency, or person shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter provided that the court finds that such lawsuit was necessary in order to make the information available . . . . Fees shall not be awarded unless the court finds that the public body, public agency, or person knew or should have known that the conduct engaged in was a violation of this chapter . . . .

[8] Here, NHRS made reasonable arguments in a case of first impression regarding the disclosure of retiree benefits under RSA 91-A:4, I-a. Although, the arguments were unsuccessful, the court concludes that NHRS did not know or have reason to know that its refusal to provide the information was a violation of RSA 91-A. Therefore, Union Leader is not entitled to attorney's fees.

For the foregoing reasons, NHRS is ordered to disclose the names of the five hundred state retirement system members who received the highest annual pension payments in 2009 and the amounts of these payments.


September 2, 2010    /s/   

David A. Garfunkel

Presiding Justice