Gelinas v. Herman, Doc. No. 219-1999-E-030 (Strafford Super. Ct., April 8, 1999) (Fauver, J.)

[1]

State of New Hampshire

STRAFFORD, SS. SUPERIOR COURT

Paul R. Gelinas, Jr.

v.

William G. Herman, Town Administrator
for the Town of New Durham

99-E-030

ORDER ON THE PLAINTIFF'S PETITION FOR RELEASE OF INFORMATION
PURSUANT TO THE RIGHT TO KNOW LAW

The plaintiff, a selectman for the Town of New Durham, brought this action against the defendant, town administrator for the Town of New Durham, seeking a copy of the Schoolcare Insurance premium statement which lists the types of insurance coverage chosen by town employees. The plaintiff seeks the information both in his capacity as town selectman, and also a member of the public under the Right to Know Law (RSA 91-A). The relevant facts are as follows.

The plaintiff left a handwritten note on the defendant's desk requesting a copy of the information at issue. The defendant supplied the plaintiff with the requested information, with the exception of the names and social security numbers of the town employees, which the defendant considered to be confidential information. Prior to filing this action, the plaintiff did not tell the defendant that the supplied information was insufficient.

Preliminarily, the court addresses the Motion to Intervene filed by the Board of Selectmen of the Town of New Durham. The [2] Board of Selectmen asserts that the defendant's actions were performed in the scope of his employment responsibilities and were done on behalf of the Board of Selectmen. There being no objection from the plaintiff, the Motion to Intervene is GRANTED.

The plaintiff seeks the information both in his capacity as a town selectman, and also as a member of the public under the Right to Know Law (RSA 91-A). With regard to his duties as town selectman, the plaintiff asserts that he needs to know which health insurance plan each town employee has chosen in order to effectively carry out his duties. Specifically, the plaintiff argues that this benefit information is important for determining how much of a raise each employee should be given. With regard to his claim under the Right to Know Law, the plaintiff argues that this is public information which every tax payer is entitled to see.

In response, the defendant argues that if the plaintiff is acting in his capacity as town selectman, he should first bring the issue to the attention of the Board of Selectmen. With regard to the plaintiff's claim under the Right to Know Law, the defendant asserts that the names and social security numbers of individual employees and the types of insurance coverage those individuals have chosen is confidential information which is exempt from disclosure under the Right to Know Law.

The public has a right to view and copy all public records, except those records which are exempt from public access. See RSA 91-A:4; RSA 91-A:5. Records pertaining to "confidential" or "financial" information, or "other files whose disclosure would [3] constitute invasion of privacy," are exempt from disclosure under RSA 91-A:5, IV. When dealing with confidential or financial information, the "benefits of disclosure to the public must be weighed against the benefits of non-disclosure to the government." Chambers v. Gregg, 135 N.H. 478, 481 (1992). "When a public entity seeks to avoid disclosure . . . that entity bears a heavy burden to shift the balance toward nondisclosure." Union Leader Corp. v. City of Nashua, 141 N.H. 473, 476 (1996).

Similarly, there is a "strong presumption in favor of disclosure," when exemption is claimed on privacy grounds. Id. at 478. In balancing the public's interest in disclosure against a private citizen's interest in privacy, the court "examine[s] the nature of the requested document or material and its relationship to the basic purpose of the Right-to-Know Law." Id. at 476. In Mans v. Lebanon School Board, 112 N.H. 160 (1972), the New Hampshire Supreme Court held that teachers' contracts and salary information are not exempt from public disclosure because they are not "intimate details" the disclosure of which would constitute invasion of privacy. See id. at 164.

In this case, the plaintiff does not seek "intimate details" regarding the health of town employees or the personal use of their insurance. Rather, his request is limited to disclosure of the type of insurance chosen in order to determine the amount paid by the town for each employees' insurance. Because the town pays for the insurance premiums, these benefits are analogous to the salary information disclosed in Mans, supra. Furthermore, the defendant has failed to specify how the disclosure of this [4] information constitutes an invasion of privacy, and no town employees have intervened in an attempt to protect their privacy interests.

The public has a strong interest in the allocation and expenditure of public funds. Balancing this interest against the individual's privacy interest, the court finds that disclosure is required under the Right to Know Law. This disclosure, however, is limited to the names of the employees, and the insurance option selected by each employee. Social security numbers constitute confidential information which should not be disclosed.

Furthermore, the court finds that the plaintiff has a right of access to the information in his capacity of town selectman. Town selectmen have the responsibility to "manage the prudential affairs of the town and perform duties by law prescribed." RSA 41:8. This includes keeping "a fair and correct account of all moneys received, all accounts and claims settled and all orders drawn by them, and of all their other financial transactions in behalf of the town." RSA 41:9, III. As town selectman, the plaintiff should be given access to financial information relating to the salary and benefits of individual town employees.

Accordingly, the plaintiff's request for public disclosure of the School Care Health Insurance Premium statement is GRANTED. However, all social security numbers shall be redacted prior to disclosure.

With regard to the plaintiff's request for attorney's fees, the court finds that the defendant did not know, nor should he [5] reasonably have known, that his conduct constituted a violation of the Right to Know Law. See RSA 91-A:8. Specifically, the defendant asserts that he consulted a "Personnel Record Keeping" booklet in making his decision not to disclose the names of the employees. Furthermore, the plaintiff has failed to show that the "lawsuit was necessary in order to make the information available . . . ." See RSA 91-A:8. Specifically, the defendant asserts that the plaintiff never told the defendant he was dissatisfied with the information he received. Instead, the plaintiff immediately filed suit. Accordingly, the plaintiff's request for attorney's fees is DENIED.

SO ORDERED.

Date:    4/8/99       /s/   

DatedPeter H. Fauver

Presiding Justice