Jacques v. Curry, Doc. No. 217-2005-E-168 (Merrimack Super. Ct., June 27, 2005) (Fitzgerald, J.)

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Paul R. Jacques,
Robert M. Meegan,
Don Valente, and
Sterling Wheeler


Stephen J. Curry, in his official capacity as the Commissioner of the New
Hampshire Department of Corrections,
Lisa Currier, in her official capacity as Human Resources Administrator of the New
Hampshire Department of Corrections, and
John Vinson, in his official capacity as Legal Counsel to the New Hampshire
Department of Corrections

No. 05-E-168


Paul R. Jacques, Robert M. Meegan, Don Valente, and Sterling Wheeler ("petitioners") have filed this petition for injunctive relief against the above named defendants to restrain the New Hampshire Department of Corrections ("DOC") from destroying and/or obstructing access to personnel records of the DOC. The Court held a hearing on this matter on May 17, 2005. Before the Court is the defendants' motion to dismiss to which the petitioners object. For the following reasons, the Court finds and rules as follows.

I. Factual Background

The petitioners appear to be or have been employees of the DOC. They claim that documents they have obtained demonstrate that certain managers of the DOC have been improperly reclassifying portions of the petitioners' personnel files so as to make them subject to destruction after one year rather than being retained longer. They also contend [2] that DOC managers have been maintaining┬╗ secret personnel files containing unfounded allegations of misconduct regarding the petitioners and other employees of the DOC and that they have denied the petitioners access to their "secret" files. They further contend that the classification and destruction scheme of the DOC was initiated only for the purpose of avoiding liability for a series of actions against it in federal court.

The petitioners have brought this action pursuant to RSA 275:56 and RSA chapter 91-A seeking an injunction requiring the DOC to cease the destruction of the above referenced documents and requiring the DOC to avoid obstructing access to those documents. The DOC has moved to dismiss the petition. At the time of the May 17 hearing, the petitioners had not had an opportunity to respond to the motion to dismiss. However, at that hearing the DOC did concede that, pursuant to orders of the United States District Court, no documents would be destroyed. Therefore, the issue before the Court is that of the petitioners' access to DOC files.

II. Discussion

As a preliminary matter, the State has moved to dismiss, with prejudice, the claims of petitioners Jacques, Valente and Wheeler on the ground that their objections' were merely copies of petitioner Meegan's objection and were filed beyond the deadline set by the Court and the rules. The Court finds, in accordance with Super. Ct. R. 58 and Ossipee Auto Parts v. Ossipee Planning Bd., 134 N.H. 401, 404 (1991), that the objections of petitioners Jacques, Valente and Wheeler were, without explanation or excuse, untimely filed. However, although the Court is troubled by the petitioners' inability to meet a clearly expressed deadline, the petitioners are proceeding pro se, and [3] the Court finds in the interest of justice, the rule should be waived and the objections allowed.

As to the merits of the objections, the DOC first contends that RSA 275:56, pertaining to employee access to employers' personnel files, does not apply to this case. The State contends that the definition of "employer" in RSA 275:4 does not include the State and therefore the State is not subject to the requirements of the chapter. The petitioners counter that there are numerous definitions of "employer" in different parts of RSA chapter 275 and that none of those definitions specifically exclude the State. Therefore, since the State is not excluded and the legislature could have excluded it, the State is subject to RSA 275:56.

The Court finds that RSA 275:56 does not apply to the State. As pointed out by the petitioners, none of the definitions of "employer" in RSA chapter 275 specifically exclude the State or its departments, agencies or subdivisions. However, those definitions also do not specifically include the State, or its agencies. Further, as noted by the DOC, RSA chapter 273-A deals exclusively with personnel matters relating to public employees and employers including the State and its agencies. See RSA 273-A:1, X. "Under the customary rule of statutory construction, [the Court] presume[s] that 'the legislature does not enact unnecessary and duplicative provisions.'" State v. Powell, 132 N.H. 562, 568 (1989) (quoting DeWees v. N.H. Bd. of Pharmacy, 130 N.H. 396, 403 (1988)). Should the State be subject to the provisions of RSA chapter 275, RSA chapter 273-A would, on numerous matters, be duplicative and unnecessary. Accordingly, because RSA chapter 275 does not include the State in its definitions and because the [4] State as an employer is specifically addresses by RSA chapter 273-A, the Court find that RSA chapter 275 does not apply to the State.

Since the Court has found that RSA 275:56 does not apply to this case, the remaining basis for disclosure of the documents is RSA chapter 91-A, the Right-to-Know law. The DOC contends that the records requested - personnel related recruitment files and investigative files - are not subject to disclosure. As to the personnel related recruitment files, the DOC contends that they are exempted from disclosure by the provisions in RSA 91-A:5, IV relating to documents of internal personnel practices and those documents whose disclosure would constitute an invasion of privacy. The DOC also argues that the internal personnel practices exemption applies to the investigative files. The DOC also claims that under the rulemaking authority granted by RSA 21-I:43 the director of personnel may determine which items should be in an employee's personnel file and whether those items may be kept confidential under the Right-to-Know law. The DOC makes essentially the same argument regarding the classification of documents with respect to the Collective Bargaining Agreement of the State Employee's Association, of which the petitioners are a part.

The petitioners counter that rulemaking authority does not also grant authority to exempt whole categories of documents otherwise subject to the Right-to-Know law. They further contend that the DOC does not carry its burden to avoid disclosure under the Right-to-Know law.

The Court agrees with the petitioners that RSA 21-I:43 and the Collective Bargaining Agreement do not grant authority to the DOC to make broad exemptions from the Right-to-Know law. As to the DOC's other contentions, the New Hampshire [5] Supreme Court has recently clarified the test to be applied when dealing with documents whose disclosure could constitute an invasion of privacy. When analyzing these documents the Court engages in a three-step analysis. See Lamy v. N.H. Pub. Util. Comm'n., 152 N.H. 106, 109 (decided April 11, 2005) (slip op. at 2). "First, we evaluate whether there is a privacy interest at stake that would be invaded by disclosure." Id. (citing N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 440 (2003)). If no privacy interest is at stake, the Right-to-Know Law mandates disclosure." Id. "Next, we assess the public's interest in disclosure." Id. "Disclosure of the requested information should inform the public about the conduct and activities of their government." Id. "Finally, we balance the public interest in disclosure against the government interest in nondisclosure and the individual's interest in nondisclosure." Id. "Whether the information is exempt from disclosure because it is private is judged by an objective standard and not by a party's subjective expectations. . ." Id. (slip op. at 3).

The State contends that disclosure of the personnel recruitment files sought by the petitioners would constitute an invasion of privacy because the files contain sensitive personal information such as an applicant's name, home address and telephone number, social security number, driver's license number and resume. The Court finds that there is a privacy interest at stake that would be invaded by the disclosure of the requested documents. The privacy interest at stake here, in fact, is greater than that in Lamy because in Lamy only names and addresses were at issue.

Next, the Court considers the public's interest in disclosure. "The public interest that the Right-to-Know law was intended to serve concerns 'informing the citizenry about the activities of their government.'" Id at 111. (quoting Union Leader Corp. v. City of Nashua, [6] 141 N.H. 473, 477 (1996)). "If disclosing the information does not serve this purpose, 'disclosure will not be warranted even though the public may nonetheless prefer, albeit for other reasons, that the information be released.'" Id.

While not entirely clear, the petitioners appear to be seeking access to personnel files of the DOC generally. They advance no justification, either on their own behalves, or that of the public as to why these documents should disclosed. It does not appear to aid in informing citizens of the activities of the agency. The Court sees no evidence on the record indicating that the information sought will be used for any purpose other than to discover additional information about the DOC itself. Such "derivative use" of disclosed information, while not categorically ruled out of consideration, has little weight. See Lamy, 152 N.H. at 113 (slip op at 4-5).

Finally, the Court must balance the interests above to determine if the requested documents should be disclosed. The Court finds that, in light of the substantial personal privacy concerns and the little weight accorded to the public benefit from the information, the personnel related recruitment files should not be disclosed.

The DOC also argues that the investigative files sought by the petitioners are exempt from disclosure because they relate to internal personnel practices of the DOC. In Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993), the court dealt with whether the internal investigative files of the City of Dover's Police Department were exempt from disclosure. The court held that "[t]hese files plainly 'pertain to internal personnel practices' because they document procedures leading up to internal personnel discipline, a quintessential example of an internal personnel practice." Id. at 626. Further, "[a]lthough we have often applied a balancing test to judge whether the benefits of [7] nondisclosure outweigh the benefits of disclosure, such an analysis is inappropriate, where, as here, the legislature has plainly made its own determination that certain documents are categorically exempt." Id. at 627 (citations omitted); see also Pivero v. Largy, 143 N.H. 187, 190 (1998) (noting the continuing validity of Fenniman). There is no basis for concluding that the internal investigative records of the DOC should be treated differently than those of the Dover Police Department in this instance. Accordingly, the Court finds, under Fenniman, that the investigative files of the DOC are exempt from disclosure.

As the documents sought by the petitioners are not subject to disclosure, and the destruction of documents is barred by orders of the federal court, there are no issues remaining. Accordingly, the State's motion to dismiss is GRANTED.

So Ordered.

   6/27/05       /s/   

Date Edward J. Fitzgerald, III

Presiding Justice