Jacobs v. Bureau of Emergency Communications, Doc. No. 217-2016-CV-304 (Merrimack Super. Ct., November 9, 2016) (Nicolosi, J.)

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Lisa Jacobs


Bureau of Emergency Communications of the State of New Hampshire;
New Hampshire Department of Justice;
New Hampshire Department of Safety

Docket No. 217-2016-CV-304


Several motions are pending before the Court. First, Defendant Bureau of Emergency Communications of the State of New Hampshire ("BEC") moves to dismiss Plaintiff's claims against it. Second, Defendant Department of Justice ("DOJ") moves to dismiss Plaintiff's claims against it. Third, the Plaintiff, Lisa Jacobs, has several pending motions to amend her complaint, adding additional claims and prayers for relief against the BEC, DOJ, and the New Hampshire Department of Safety ("DOS").1 Fourth, Jacobs moves to compel production of documents by the DOJ and the DOS. Finally, Jacobs moves to strike the BEC's original partial motion to dismiss. For the following reasons, the BEC's Motion to Dismiss is GRANTED, the DOJ's Motion to Dismiss is GRANTED, Jacobs' pending Motions to Amend are DENIED, Jacobs' Motion to Compel Production as to DOJ is DENIED, and Jacobs' Motion to Strike is DENIED.


[2] Jacobs' original complaint sought a court order for the release of the recording of a 911 call she and Robert Hebert made on May 7, 2016. The BEC has instituted a policy that requires that, if there is more than one caller on a 911 call, all callers have to provide a notarized request and appear in person at BEC offices to receive a CD of the call. The original complaint had five prayers for relief. Jacobs asked for a court order to force the BEC to provide the CD to Jacobs without Hebert's notarized request or presence. (Compl., prayer A.) Jacobs also requested that all future 911 calls made by her with or without another person on the line be automatically released to her (Compl., prayer B.), that the BEC change its policy requiring permission of all speakers on a call before a 911 call is released (Compl., prayer C.), that the BEC change its policy and allow any person to get a recording of any 911 call made in New Hampshire (Compl., prayer D.), and "for the policies regarding the release of information to be made available on the internet for this bureau, the sheriff's bureau, as well as notice to the other 911 calls centers and towns that the 911 calls go to in the border areas of NH[]" (Compl., prayer E.). Jacobs argues it would be an inconvenience for Hebert to take time from work to travel to the BEC to make an in person request for the recording.

On June 8, 2016, the Court received and denied Jacobs request for ex parte release of the CD. (Emergency Ex Parte Mot. for the NH 911 CD to Be Released Today, Court Index # 10.) On June 10, 2016, Jacobs moved to amend her complaint to allege claims against the DOJ and the DOS. (Second Mot. to Amend Compl., Court Index # 12.) That motion was granted on June 24, 2016. (Id.) In her motion to amend, Jacobs states that she seeks information from the DOJ and the DOS regarding "investigations regarding myself, Peter MacDonald, Lorraine MacDonald, Ed Poor, John [3] Poor, Christopher Holman, John Holman, etc. and the town [sic] of Fitzwilliam." (Id.) In her amended complaint, she expands the list of requested documents to include "any records as desired regarding including but not limited to Lisa Jacobs, Lorraine MacDonald, Peter MacDonald, Edward Poor, John Poor, Robert Hebert, James Larkin, Christopher Holman, John Holman, the Fitzwilliam Police, Joe Fillipi Fitzwilliam Police officer, other Fitzwilliam Officers Clark, Haley Rae NH State Trooper, the internal affairs investigation, the town of Fitzwilliam, Susan Emerson, etc." (E#2 Amended Compl., Court Index #14.) She wants these documents "to be used by my attorney against the MacDonalds in civil litigation." (Id.)

Since June 24, 2016, several motions have been filed with the Court. First, on July 5, 2016, the BEC moved to dismiss Jacobs' prayers for relief lettered B-E. (Partial Mot. to Dis., Court Index # 16.) Jacobs objected, moved to amend, and moved to strike the partial motion to dismiss. (Cross Mot. to Amend Compl. in Response to Partial Mot. to Dis., Court Index # 18; Mot. to Strike Partial Mot. to Dis., Court Index # 19; Opp. to Partial Mot. to Dis., Court Index # 20.) Second, on July 27, 2016, the BEC moved to dismiss all Jacobs' claims against it because, it argues, Jacobs is not entitled to a copy of the 911 call because RSA 106-H:9 specifically exempts 911 calls from RSA 91-A. (Mot. to Dis. Amended Compl., Court Index # 22.) Jacobs objected and added additional prayers for relief in her objection, (Opp. to Mot. to Dis., Court Index # 23.) and separately moved to amend her complaint. (Cross Mot. to Amend Compl. in Opp. to Mot. to Dis., Court Index # 25.) The BEC objected to Jacobs' new motion to amend. (Obj. to Cross Mot. to Amend Compl. in Opp. to Mot. to Dis., Court Index # 30.) Jacobs [4] then objected to the BEC's objection and again moved to amend her complaint. (Obj. and Mot. of Notice of Need for Future Amend., Court Index # 32.)

Finally, Jacobs moved to compel production of documents, for sanctions, and for attorney's fees, and for default judgment. (Mot. to Compel Production, Court Index # 35.) The BEC objected on September 6, 2016 on relevance grounds. (Def. Resp. to Pl. First Set of Requests for Production of Documents, Court Index # 36.) Jacobs again moved to amend on September 6, 2016. (Mot. to Amend, Court Index # 37, E#1 Amended Compl., Court Index # 38.)

On September 20, 2016, the DOJ filed a motion to dismiss Jacobs' claims against it, indicating that all requested documents have been provided. To date, Jacobs has not objected to the DOJ's motion to dismiss.


BEC's Motions to Dismiss (Court Index #s 16 & 22)

As a preliminary matter, Jacobs' Motion to Strike the partial motion to dismiss is DENIED. Jacobs amended her complaint; she did not withdraw it. In any event, the arguments made in the second motion to dismiss are duplicative of those made in the first.

Jacobs has cited numerous constitutional provisions and made conclusory statements about their violation that are undeveloped and ungrounded in the facts alleged. The only viable constitutional issue presented is whether RSA 106-H, and the related policy implemented by the BEC, unreasonably restricts access by Jacobs and the public to governmental records, in contravention of the New Hampshire Constitution, part 1, article 8.

[5] Jacobs also complains that the BEC's actions are inconsistent with the federal Freedom of Information Act ("FOIA") and RSA 91-A. The records at issue, however, are not federal records, and, as pointed out by BEC, our legislature has chosen to except 911 calls from New Hampshire's right-to-know law and to allow instead a very narrow category of disclosure per RSA 106-H:14, an act within its province.

The BEC relies in part on section 14 of RSA 106-H in denying Jacobs' request, which reads:

Any information or records compiled under this chapter shall not be considered a public record for the purposes of RSA 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 to environmental services solely for the purpose of estimating the location of wells subject to RSA 482-B . . . .

(Emphasis added). In addition, the Department of Safety, of which the BEC is a part, promulgated an administration rule, Saf-C 7006.04, related to section 14, which attempts to broaden the allowed disclosure categories to include 911 callers, such as Jacobs. But see Formula Development Corp. v. Town of Chester, 156 N.H. 177, 182 (2007) ("Administrative officials do not possess the power to contravene a statute[] [and] ... administrative rules may not add to, detract from, or modify the statute which they are intended to implement." (quoting Appeal of Anderson, 147 N.H. 181, 183 (2001)). The administrative rule is entitled Confidentiality of Information and Records, and reads in relevant part:

[6] (a) Pursuant to RSA 106 H:14 information and records compiled by the commission or the [BEC] shall not be public records for the purposes of applying the provision of RSA 91-A except to the extent that:
(1) [];
(2) They are information or records relating to a call made by dialing 911 and made available only to the person making the call; or
(3) [].
(e) The bureau shall release such records when required to do so by an order of a court which:
(1) Has jurisdiction to issue the order;
(2) In the order identifies with particularity the party permitted to obtain the records and the records to be released.

Saf-C 7006.04. Assumedly, the BEC policy, which allows a 911 caller to obtain a copy of a 911 recording of his or her call, if the caller appears in person with identification and a notarized request, was developed to carry out this administrative rule.

In addition to relying on RSA 106-H:14 to avoid application of RSA 91-A and disclosure thereunder, the BEC cites RSA 106-H:9, III, which it argues makes all records of the BEC "confidential and privileged." The Court disagrees. RSA 106-H:9, III must be read in context. It reads:

Notwithstanding any other provision of law, . . . the records and files of the department, related to this section, are confidential and privileged. Neither the department, nor any employee of the department, . . . shall disclose any information obtained from the department's records, . . . nor may any such employee or person be required to produce any such information for the inspection of any person or for the use in any action or proceeding except as provided in this paragraph.

(Emphasis added). The "section" referred to relates only to the funding of the 911 system through a surcharge. Based on this narrowing phrase, the Court does not read [7] the "confidential and privileged" language to apply to all BEC records, but rather concludes it applies only to those records and files related to the section 9 surcharge, ones not at issue in this case.

Turning back to RSA 106-H:14 and the related BEC policy, the Court starts with examination of the language of the NH Constitution. The New Hampshire Constitution, part 1, article 8 states:

All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted.

The question then is whether RSA 106-H:14 and/or the BEC policy "unreasonably" restricts the public's access, including Jacobs, to governmental records in the form of recorded 911 calls. To answer this question, the Court looks to RSA 91-A for guidance. RSA 91-A was intended to "help further our State Constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted." Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 553 (2002). The stated 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." RSA 91-A:1. To comply with the constitutional mandate of openness in government, the Supreme Court has "construed provisions favoring disclosure broadly, while construing exemptions narrowly." Id. at 554. Accordingly, the burden of proof is properly placed on the party seeking non-disclosure, generally the government, to show that it is not unreasonably restricting the [8] public's access to government records. Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 549 (1997).

RSA 106-H:14 by its strict application completely limits the availability of information or records compiled under 911 to the general public. Even assuming the administrative rule broadens the restriction by allowing a 911 caller access to his or her call recording, members of the general public still would not be privy to the governmental record. Because Jacobs is prohibited from receiving the recording absent Hebert's involvement, she stands in the same position as any other public member who would be denied access to the 911 call under RSA 106-H:14 and the BEC policy.

In effect, RSA 106-H:14 removes an entire category of governmental records from public view. Although the Court is cognizant that 911 calls are generally of an emergency nature, which might involve information about medical and mental health issues, private and embarrassing facts, and juvenile matters, and may raise safety concerns from a report of a citizen or a victim in a dangerous circumstance or interfere with law enforcement efforts or a defendant's right to a fair trial, such possibilities do not warrant a blanket restriction. Indeed, like concerns could arise from law enforcement records. Rather, should a basis exist to restrict disclosure, the basis should be addressed on a case-by-case basis, as has been done by courts in other states grappling with whether 911 tapes should be disclosed.2

[9] The contrast between the restriction in RSA 106-H:14 and RSA 91-A:5, IV, as interpreted by our appellate court when considering the disclosure of considering like investigative records, is instructive. While recognizing the possible sensitivity of law enforcement records, the public disclosure of which may raise significant safety or privacy issues, the Supreme Court nonetheless ruled that investigative records could be withheld, despite the presumption of openness under the right-to-know law, if the party seeking non-disclosure can demonstrate that the public's interest in disclosure is outweighed by the interests in non-disclosure. See Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996). To determination whether or not a law enforcement-related record should be released, the New Hampshire Supreme Court has adopted the Federal FOIA 6-point test. See, e.g. Lodge v. Knowlton, 118 N.H. 574, 576-77 (1978) (citing to 5 U.S.C. § 552(b)(7) (Supp. 1975)). If the requested material is "investigatory and . . . compiled for law enforcement purposes," it can be withheld if one of the "six statutory adverse results" would apply. Id. These "adverse results" apply if release would;

(A) interfere with enforcement proceedings; (B) deprive a person of a right to a fair trial or an impartial adjudication; (C) constitute an unwarranted invasion of privacy; (D) disclose the identity of a confidential source . . . ; (E) disclose investigative techniques and procedures; or (F) endanger the life or physical safety of law enforcement personnel

[10] Id. (citing 5 U.S.C. § 552(b)(7) (Supp. 1975)). However, if an investigatory record does not meet one of the six adverse results, the record should be disclosed. Id. See N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437 (2003); Union Leader Corp. v. City of Nashua, 141 N.H. 473 (1996).

The test under Federal FOIA aligns with the statutory exemptions in RSA 91-A for "confidential, commercial, or financial information; . . . files whose disclosure would constitute an invasion of privacy" and "records pertaining to matters relating to the preparation for and the carrying out of all emergency functions . . . ." RSA 91-A:5, IV & VI. The Court finds that the same test for BEC records would adequately protect the public's constitutional right and interest in knowing how its government is operating and at the same time address a citizen or governments interest in non-disclosure based on the particular facts presented. RSA 106-H:14 and the BEC policy provide no avenue for a case-by-case evaluation of the "reasonableness" of non-disclosure. The Court finds that the restriction to the disclosure of 911 tapes in RSA 106-H and the related administrative rule and policy is too broad and is offensive to part 1, article 8 of the New Hampshire Constitution.

To date, the BEC has not raised any rationale for not disclosing the 911 call besides compliance with RSA 106-H. The Court has discerned no issue in this particular case with the potential interference with enforcement proceedings, deprivation of a right to a fair trial, unwarranted invasion of privacy, disclosure of the identity of a confidential source, disclosure of investigative techniques and procedures, or the endangerment of the life or physical safety of law enforcement personnel. See Lodge, 118 N.H. 576-77. The requester is one of the callers on the call and the two callers [11] were joined in their purpose when making the call. There does not appear to be an existing criminal investigation into the shots fired or any charges filed, nor would disclosure appear to reveal any investigative technique, confidential source or identity of any unknown witness. As noted, the agency seeking non-disclosure of a public record has the burden of showing why that record should not be disclosed. Union Leader, 142 N.H. at 549. The BEC has made no argument that any of the above-listed reasons for non-disclosure or any other would apply.

Accordingly, the Court DENIES the BEC's Motion to Dismiss. The BEC shall release a certified copy of Jacobs' May 7, 2016 911 call to her within five (5) five days of the Clerk's notice of this order, upon her presentation of identification acceptable to the BEC, unless a factual basis exists to establish the public's right of access is outweighed by an specific interest in non-disclosure of the public record. In that instance, the BEC shall notify the court within five (5) days of the Clerk's notice and a hearing will be scheduled.

The balance of BEC's Motion to Dismiss is GRANTED as to Jacobs' Prayers B-E. Part 1, article 8 does not require unrestricted access to all government records; to the contrary, it allows reasonable restriction, which can only be determined when a specific request is made.

DOJ's Motion to Dismiss (Court Index # 35) & Jacobs' Motion to Compel (Court Index # 39)

Jacobs made additional claims in her amended complaint, arguing that the DOJ had not provided documents to her that she had requested under a RSA 91-A and/or [12] FOIA request. As of September 20, 2016, the DOJ has stated to the Court that it provided 124 responsive documents to Jacobs on August 16, 2016. Jacobs has not objected to the production of documents as insufficient and/or unresponsive to her request which, the Court notes, was very broadly written. Therefore, the DOJ's Motion to Dismiss is GRANTED. Relatedly, Jacob's Motion to Compel Production, , is DENIED because the requested documents are not relevant to the subject of the original complaint, as is required by court rule. N.H. Sup. Ct. R. 21(b) ("parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . .")

Jacobs' Motions to Amend (Court Index #s 18, 19, 23, 25, 32, 37, 38)

Jacobs made several requests to amend both separately as motions to amend and in conjunction with objections to the Defendants' pleadings. "Liberal amendment of pleadings is permitted unless the changes would surprise the opposing party, introduce an entirely new cause of action, or call for substantially different evidence." Tessier v. Rockefeller, 162 N.H. 324, 340 (2011). Since the Court granted Jacobs' Motion to Amend on June 24, 2016, none of the subsequent pleadings have added claims that are relevant and related to the original claim requesting the release of the 911 call recording. The later-added claims are extensive and seek many different types of relief but are either unrelated to the original complaint or are duplicative of the original complaint and/or the amended complaint that has been already allowed. As such, all pending motions to amend would surprise the opposing party, introduce entirely new causes of action, and/or call for substantially different evidence than the original 911 call [13] recording claim or the amended RSA 91-A/FOIA claim(s) against the DOJ and DOS. All motions to amend dated after June 24, 2016 are DENIED.

If Jacobs has claims against these parties or others that would be properly heard in Merrimack County, she is free to bring those claims in a separate action.


For the foregoing reasons, the BEC's Partial Motion and Motion to Dismiss are GRANTED in part and DENIED in part; the DOJ's Motion to Dismiss is GRANTED; Jacobs' pending Motions to Amend are DENIED; Jacobs' Motion to Compel Production is DENIED; and Jacobs' Motion to Strike is DENIED.


Date:    11/9/2016       /s/   

Diane M. Nicolosi

Presiding Justice

1 DOS has not been served to date. The original date for service was August 22, 2016 with a return of September 12, 2016. The dates passed without service. On September 23, 2016, the Court granted Jacobs' Motion to Extend Service date as to DOS. No new Orders of Notice to Issue to DOS have been requested.

2 See, e.g. Sedensky v. Freedom of Information Commission, 2013 WL 6698055 at 12-13. (Conn. Super. Ct 2013, Unpublished opinion); Evening Post Pub co. v. City of North Charlestown, 611 S.E.2d 496, 499-500 (S.C. 2005); Asbury Park Press v. Lakewood Township Police Dept., 354 A.2d 146, 156-164 (N.J. Super. 2002); Asbury Park Press v. Ocean County Prosecutor's Office, 864 A.2d 446 (N.J. Super. 2004); Marshall County v. Paxton Media Group, LLC, 2009 WL 153206 (KY. App. 2009 Unpublished) (citing and clarifying Bowling v. Brandenburg, 37 S.W. Ed 785 (2000); A.H. Belo Corp. v. Mesa Police Dept., 42 P.3d 615 (Ariz. 2002); and Meredith Corp. v. City of Flint, 671 N.W.2d 101, 104-06 (Mich. App. 2003).