Jacobs v. Bureau of Emergency Communications, Doc. No. 217-2016-CV-304 (Merrimack Super. Ct., April 12, 2017) (Nicolosi, J.)

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Lisa Jacobs


State of New Hampshire, Bureau of Emergency Communications

Docket No. 217-2016-CV-304


A single issue remains in this case: whether the BEC's decision to not release Lisa Jacobs' May 7, 2016 911 call recording is unconstitutional. A hearing on the merits was held on April 7, 2017. The Court finds and rules as follows.


Jacobs seeks a court order for the release of the recording of a 911 call she and Robert Hebert made on May 7, 2016 regarding shots fired in her neighborhood in Fitzwilliam, New Hampshire. The release of the 911 call is the only claim remaining in this action.


The New Hampshire Constitution protects the public's access to governmental records in Part I, Article 8.

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.

[2] N.H. Const., Pt. I, Art. 8. "This right of access is not, however, absolute, and may be overcome when a sufficiently compelling interest for nondisclosure is identified." In re State (Bowman Search Warrants), 146 N.H. 621, 625 (2001).

There is a presumption that court records are public and the burden of proof rests with the party seeking closure or nondisclosure of court records to demonstrate with specificity that there is some overriding consideration or special circumstance, that is, a sufficiently compelling interest, which outweighs the public's right of access to those records.

In re Keene Sentinel, 136 N.H. 121, 128 (1992). In general, requests for governmental records are made through RSA 91-A, the Right-to-Know statute. However, when the New Hampshire Legislature enacted RSA 106-H to govern the management of the Enhanced 911 System, 911 call recordings were specifically exempted from RSA 91-A "public records." RSA 106-H:14 ("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.") Therefore, RSA 91-A does not apply here. However, the constitutional protections of Part I, Article 8 of the New Hampshire Constitution still govern Jacobs' request for the CD.

While RSA 106-H:14 completely removes 911 call recordings from the universe of "public records" that can be requested under RSA 91-A, the BEC has instituted a policy that allows release of 911 recordings in certain circumstances. The caller on a 911 call can request a copy of the recording of their call by appearing at the BEC in person with ID and a notarized request for the recording. If more than one person is heard on a 911 call, all people on the call have to [3] provide a notarized request and appear in person at BEC offices for any caller to receive a certified copy of the CD of the call.

Jacobs has made an as-applied constitutional argument in her pleadings. She argues that the BEC's failure to release the May 7, 2016 911 call made by her and Robert Hebert is unconstitutional. The Court agrees.

Part I, Article 8 of the New Hampshire Constitution expressly states that the public has access to government records in order to hold the government "at all times accountable to them." N.H. Const. Pt. I, Art. 8. Here, the 911 call recording requested by Jacobs is a record held by a government body that has the potential to provide insight into the inner workings of the government. Review of a 911 call could provide insight into government's response to such calls, which is a vital public service. As such, public access to the record would promote the goal of government accountability to the people as espoused in Part I, Article 8 of the New Hampshire Constitution. Therefore, there is a public interest in disclosure of the 911 call.

The BEC holds the burden to show that there is a "sufficiently compelling interest" to not disclose the May 7, 2016 911 call that outweighs the public's right of access. See Keene Sentinel, 136 N.H. at 128. The BEC has conceded that the content of the call does not implicate any privacy, confidentiality, investigatory, or security concerns, which are some of the governmental interests cited as reasons for nondisclosure of government records. See In re State, 146 N.H. at 626 (approving non-disclosure of documents at pre-indictment stage of ongoing investigation); In re N.B., 169 N.H. 265, 273 (2016) (recognizing adoptive children's privacy interests); Sumner v. N.H. Secy. of State, 168 N.H. 667, 670 (2016) (holding that "the integrity, fairness, and [4] efficiency of the election process" is "indisputably compelling"). While the BEC noted that Robert Hebert, the other caller on the May 7, 2016 911 call, has told it that he does not want the call released, no affidavit or other attested-to evidence of Robert Hebert's wishes has been provided.

Even if a privacy interest is implicated, the State is still required to protect those interests in the "least restrictive means available." In re N.B., 169 N.H. at 273. There can be other options short of full non-disclosure that protect an established privacy interest. Id. ("There are many ways that the State's interests in privacy and in protecting the identities of the children and others involved in the case could be served short of ordering that any pleading be filed under seal or that an entire case be filed as confidential." (emphasis in original)).

The BEC has not carried its burden to show a sufficiently compelling interest in nondisclosure of this particular 911 call recording. Withholding the recording from Jacobs is therefore an unreasonable restriction on her access to governmental records. This is a narrow holding made specifically with regards to Jacobs' request for the 911 recording from May 7, 2016. All other prayers for relief are denied.


For the foregoing reasons, the BEC must release one copy of the recording of Jacobs' May 7, 2016 911 call to her.


Date:    4/12/2017       /s/   

Diane M. Nicolosi

Presiding Justice