Estate of Esty-Lennon v. New Hampshire, Doc. No. 217-2015-CV-376 (Merrimack Super. Ct., August 7, 2015) (Fauver, J.)

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No. 217-2015-CV-00376


On August 5, 2015, the Petitioner, the Estate of Hagen Esty-Lennon, brought an emergency petition seeking to enjoin the Respondent, the State of New Hampshire, from disclosing four videos relating to the death of Hagen Esty-Lennon ("decedent"). After the petition was filed, several parties were granted the right to intervene, including the Haverhlll Police Department, the daily newspaper the Valley News, and the mother of the decedent's minor children. The Court held a hearing on August 6, 2015, and reviewed the videos in camera. Based on the following, the Court orders a preliminary injunction enjoining the release of the videos in their entirety, to remain in effect pending further order of the Court.

The following facts are pertinent in addressing the petitioner's action. On July 6, 2015, Officers Jarvis and Collins of the Haverhill Police Department shot and fatally wounded the decedent. The four videos which are the subject of this petition were taken from body-cams worn by the officers during the incident, the dashboard-cam of Officer Jarvis's police cruiser, and the body-cam of Sergeant Trott, who arrived at the scene moments after the shooting occurred. The videos capture a span of time which includes [2] the officers' arrival on scene, their initial interactions with the decedent, the shooting itself, and the actions of the officers and other responders during the minutes after the shooting. Both the Haverhlll Police Department and the New Hampshire Attorney General's office currently hold copies of the videos, and both organizations have received Right-to-Know requests for the videos' release. The Petitioner now seeks a preliminary injunction to enjoin the release of the videos.

"The issuance of injunctions, either temporary or permanent, has long been considered an extraordinary remedy." N.H. Dep't of Env. Servs. v. Mottolo, 155 N.H. 57, 63 (2007) (citation omitted). "A preliminary injunction is a provisional remedy that preserves the status quo pending a final determination of the case on the merits." Id. "An injunction should not issue unless there is an immediate danger of irreparable harm to the party seeking injunctive relief, and there is no adequate remedy at law." Id. "[A] party seeking an injunction must show that it would likely succeed on the merits." Id.

The Petitioner argues that the release of the videos could cause irreparable harm to the decedent's family. Having reviewed the videos, the Court finds that long portions of the videos contain graphic and disturbing images which have the potential to cause emotional and psychological damage to the decedent's family, including his two minor children.

Next, to determine whether the Petitioner is likely to succeed on the merits, the Court must interpret provisions of New Hampshire's Right-to-Know Law, RSA chapter 91-A. "The Right-to-Know Law guarantees every citizen the right to inspect and copy all public records, with certain limited exceptions." 38 Endicott St. N., LLC v. State Fire Marshal, N.H. Div. of Fire Safety, 163 N.H. 656, 660 (2012) (quotations omitted). "In [3] interpreting provisions of the New Hampshire Right-to-Know Law, [the Court] often look[s] to the decisions of other jurisdictions interpreting similar provisions of other statutes for guidance, including federal interpretations of the federal Freedom of Information Act (FOIA)." Id.

Although RSA 91-A does not explicitly address the treatment of requests for law enforcement records, when analyzing such requests, the New Hampshire Supreme Court has adopted the test embodied in Exemption 7 of FOIA. See Murray v. New Hampshire Div. of State Police, Special Investigation Unit, 154 N.H. 579, 582 (2006); 5 U.S.C. § 552(b)(7). Under Exemption 7, records compiled for law enforcement purposes are exempt from disclosure to the extent that the production of such records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Likewise, under RSA 91-A, "files whose disclosure would constitute invasion of privacy" are exempt from the statute's provisions. RSA 91-A:5, IV.

To what extent family members have a privacy interest in law enforcement records containing disturbing images associated with a decedent's death appears to be an issue of first impression in New Hampshire. However, several other jurisdictions have addressed similar issues. See, e.g., Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 170 (2004); Prison Legal News v. Exec. Office for U.S. Attorneys, 628 F.3d 1243, 1246 (10th Cir. 2011); Catsouras v. Dep't of Cal. Highway Patrol, 104 Cal. Rptr. 3d 352, 357 (2010). For example, in Favish, the United States Supreme Court held that Exemption 7's privacy provision extends to the objections of a decedent's family to the release of photographs showing the condition of the decedent's body at the scene of death. 541 U.S. 157, 170 (2004).

[4] Based on the Court's preliminary review, the decedent's family potentially has a privacy right which could be invaded by the release of the videos. Therefore, the videos, or certain portions of the videos, may be exempt from the provisions of RSA 91-A. However, given the short period of time between the filing of the petition and the hearing, the Court will stay its final ruling until the parties have the opportunity to more thoroughly brief the Court on their positions regarding what standard the Court should apply when making its determination. The Court invites all interested parties to submit memorandums by September 1, 2015, after which time the Court will issue its final decision.

Based on the forgoing, the Petitioner's motion for a preliminary injunction enjoining the release of the videos is GRANTED, to remain in effect pending further order of the Court.

So ordered.

   8-7-15       /s/   

Date Peter H. Fauver

Presiding Justice