Thomas Reid v. Joseph Foster, N.H. Attorney General, Doc. No. 217-2014-CV-588 (Merrimack Super. Ct., July 18, 2014) (Smukler, J.)

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Thomas Reid


Joseph Foster, New Hampshire Attorney General

No. 14-CV-588


The plaintiff, Thomas Reid, brought this action against the defendant, Joseph Foster, in his capacity as New Hampshire Attorney General, asserting violations under RSA chapter 91-A (the "Right-to-Know law"). Specifically, the plaintiff seeks documents from an investigation by the Attorney General's Office into the conduct of former Rockingham County Attorney James Reams. Before the court are two motions to compel filed by the plaintiff. The first motion seeks an order requiring the defendant to produce certain unredacted documents. The second motion seeks production of an index. The defendant objects. Because the unredacted documents sought by the plaintiff are exempt from Right-to-Know disclosure, his motion to compel disclosure of those documents is DENIED. Because the defendant has already complied with a previous court order requiring production of an index, the plaintiff's motion to compel the production of a more detailed index is DENIED.

The plaintiff submitted Right-to-Know requests to the defendant on April 17, 2014 and April 24, 2014. The defendant responded to these requests within the RSA 91-A:4, IV five-day period, indicating that the plaintiff's request would require 30 days to process. As of May 24, 2014, the plaintiff had not received any further communication from the defendant. Roughly [2] seven months later, the defendant still had not provided the requested information to the plaintiff. The instant action followed.

On January 14, 2015, the court issued an order with respect to the plaintiff's request. In that order, the court concluded that the defendant violated RSA chapter 91-A by failing to respond to the plaintiff's request in a timely manner. Having made this determination, the court ordered the defendant to submit an affidavit verifying the proposed redactions in documents that had yet to be produced. The court also awarded costs to the plaintiff. The court denied the plaintiff's remaining requests for relief.

Following the court's order, the defendant completed a multi-phase rolling production of documents. On February 13, 2015, the defendant submitted a status report, wherein he claimed to have complied with the plaintiff's request and the court's order. The plaintiff disagreed, asserting that the responses did not comply with RSA chapter 91-A. The instant motions to compel followed. The court will address the parties' arguments in turn.

Resolution of the present motions requires the court to interpret provisions of the Right-to-Know law. "When interpreting a statute, [the court] first look[s] to the plain meaning of the words used and will consider legislative history only if the statutory language is ambiguous." ATV Watch v. N.H. Dep't of Transp., 161 N.H. 746, 752 (2011) (quotation omitted). The court does not "consider words and phrases in isolation, but rather within the context of the statute as a whole." Id. (citation omitted). This allows the court to discern the legislature's intent and interpret statutory language in light of the policy sought to be advanced by the statutory scheme. "The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 438 (2003) (quotation omitted).

[3] "[The court] resolves[s] questions regarding the Right-to-Know law with a view of providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents." WMUR Channel Nine v. N.H. Dep't of Fish & Game, 154 N.H. 46, 48 (2006). Thus, the court must "construe provisions favoring disclosure broadly, while construing exemptions narrowly." Montenegro v. City of Dover, 162 N.H. 641, 650 (2011), citing Murray v. N.H. Div. of State Police, 154 N.H. 579, 581 (2006). "When a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure." Murray, 154 N.H. at 581.

In his first motion, the plaintiff asks the court to compel the production of unredacted documents related to the removal of Reams. Those documents include statements and other information provided by a witness in relation to the investigation of Reams regarding allegations of sexual harassment, hostile work environment, and gender discrimination. The defendant has asserted that the materials sought are exempt from public disclosure because they are personnel records. See RSA 91-A:5, IV. The plaintiff disputes the applicability of this exemption.

Under RSA 91-A:5, IV, "[r]ecords pertaining to internal personnel practices," as well as employees' personnel files, are exempt from disclosure. The "internal personnel practices" exemption of RSA 91-A:5, IV has been the subject of appellate review. See Union Leader Corp. v. Fenniman, 136 N.H. 624, 626 (1993); Hounsell v. North Conway Water Precinct, 154 N.H. 1, 4 (2006). In Fenniman, the defendants attempted to withhold documents that were compiled during an internal investigation of a police department lieutenant accused of making harassing phone calls. 136 N.H. at 625-26. The court concluded that these files were exempt from disclosure because they were "[r]ecords pertaining to internal personnel practices," under the statutory scheme. Id. "[T]he plain meanings of the words 'internal,' 'personal,' and 'practices' are themselves [4] quite broad." Id. Thus, the investigatory files fell within the plain meaning of the statute. "These 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. In Hounsell, the court determined that a report generated in the course of an investigation into claimed employee misconduct was a record pertaining to "internal personnel practices." 154 N.H. at 4.

Here, the records at issue relate to the defendant's investigation into misconduct alleged to have been committed by Reams. This investigation, which was conducted jointly with Rockingham County, consisted of interviews with present and former employees. The subject directly involved the Rockingham County Attorney's Office's personnel practices, including specific instances of conduct involving employee discipline and certain reports to the Rockingham County Attorney's Office human resources office.

The plaintiff argues that the exemption only applies when an investigation is carried out by an entity that has the power to terminate an employee's employment. The plaintiff asserts that the Attorney General did not have the power to remove Reams; therefore, its investigation into Reams' alleged misconduct is not exempt. The court disagrees. Assuming without deciding that the attorney general lacks the authority unilaterally to terminate the county attorney's employment, he, in conjunction with the county, has an interest in the effective operation of the Rockingham County Attorney's Office. See RSA 7:34 ("The county attorney of each county shall be under the direction of the attorney general...."); RSA 7:6 (the attorney general "shall have and exercise general supervision of the criminal cases pending before the supreme and superior courts of the state, and with the aid of the county attorneys...."). Further, the protection afforded by the personnel exemption is not meant to benefit the employer - it is for the protection of the [5] employee. To adopt the plaintiff's position would deter the reporting of misconduct by public employees, or participation in such investigations because an employee would fear public embarrassment, humiliation, or retaliation from the disclosure of such information to the public. See Hounsell, 154 N.H. at 5. For these reasons, the court rejects the plaintiff's position. The defendant's redactions fall within the purview of RSA 91-A:5, IV.

In his second motion, the plaintiff moves to compel production of a complete index. The plaintiff claims that he has identified numerous records that have not been provided and that do not appear on the defendant's index. The plaintiff asserts that these documents must be disclosed. In his objection, the defendant represents that he has submitted a complete index of records. The defendant further disputes the plaintiff's specific factual arguments.

As a preliminary matter, the court agrees with the defendant that he has satisfied the court's January 14, 2015 order. The index provided by the defendant identifies more than 7000 pages of documents produced to the plaintiff as of February 13, 2015. The index was accompanied by a thorough affidavit. As the defendant correctly observes, the court did not require the defendant to justify his refusal on a document-by-document basis; instead, he could justify withholding on a categorical basis. See Murray, 154 N.H. at 583. The court has reviewed the index and affidavit. The defendant has complied with the court's January 14, 2015 order.

The court has also reviewed the plaintiff's specific arguments contained in his motion to compel. The plaintiff first contends that the index is incomplete because it fails to contain documents referenced in the Second Amended Complaint for Removal in the Reams litigation. He broadly asserts that the index must include all records associated with the 1999 Attorney General's Office personnel investigation of Reams and all records associated with a 2012 Rockingham County Human Resources investigation. The court disagrees. The plaintiff's April 17, 2014 [6] Right-to-Know request did not seek records related to the civil action involving Reams. Thus, the plaintiff's motion to compel seeks documents not originally part of the plaintiff's original request. For this reason, the identified documents need not be a part of the index. Indeed, at the outset of this document production, the defendant explained to the plaintiff that these documents would not be produced, as they are exempt under RSA 91-A:5, IV. Both sets of records are personnel records procured in the course of investigating allegations of gender discrimination, sexual harassment, hostile work environment, pregnancy discrimination, and retaliation at the Rockingham County Attorney's Office. Consequently, the defendant lawfully withheld these records.

The plaintiff next claims that the defendant's index lacks a complete list of individuals who were interviewed as part of the 2013 investigation led by the Attorney General's Office. The plaintiff has not sustained his burden on this claim as has failed to indicate who he believes is missing from the index. The court accepts the defendant's representation that he has included all witnesses who were interviewed in the course of the Reams investigation.

The plaintiff further argues that the defendant should have indexed several releases referenced in a transcribed interview that the plaintiff did receive. The defendant argues that he is not required to disclose these records, nor does he need to describe each page with detail in order to comply with the court's order. It is also apparent that the releases in question were obtained so that witnesses could discuss confidential information with the investigators. Consequently, the court rejects the plaintiff's claim that the releases must be indexed.

The plaintiff also seeks to compel disclosure of a summary of the investigation submitted to the court in the Reams litigation. This summary was created for litigation purposes and filed with the superior court under seal. The trial court declined to read the document and did not require that it be provided to Reams. Given the fact that the document was prepared by the defendant [7] for the Reams litigation, it falls outside the scope of the plaintiff's Right-to-Know request. Thus, it need not be disclosedse at this time.

The plaintiff next states that the index fails to contain communications between the defendant and the FBI, the United States Attorney's Office, or the County Commissioners before Reams' removal. The court is not persuaded. The defendant represents that many of these communications were conducted by telephone or in person. To the extent that these communications were documented, the defendant included the documents as a category within the index. Thus, the plaintiff's request to compel production of these documents lacks merit.

Finally, the plaintiff requests that the defendant produce an index and report from its "case management system detailing all documents, records and activities related to the investigation of Reams...." Pl.'s Mot. to Compel at 11. The court disagrees. Under the statutory scheme, the defendant is not required to explain how his case management system works or demonstrate that the defendant has indexed all documents in that system. While the defendant asserts that the office does scan certain documents into its system, it does not follow that everything contained within the defendant's case management system is subject to disclosure.

Based on the foregoing, the court finds and rules that the plaintiff's motions to compel lack merit. The plaintiff is not entitled to the relief he seeks. Accordingly, his motions to compel are DENIED.


Date: July 18, 2015    /s/