State of New Hampshire
STRAFFORD, SS. SUPERIOR COURT
George J. Foster & Co. d/b/a Foster's Daily Democrat
v.
Attorney General of the State of New Hampshire
00-E-087
ORDER ON PETITION FOR DISCLOSURE OF PUBLIC DOCUMENTS
The plaintiff filed this petition seeking disclosure of certain materials pursuant to the Right-to-Know Law, RSA 91-A. Specifically, the plaintiff requests disclosure of materials relating to alleged improper police conduct during an interview of an arson suspect. The defendant objects to the petition, arguing that the materials sought are exempt from the provisions of RSA 91-A. The relevant facts are as follows.
On January 17, 2000, Linda Ragas was interrogated at the Strafford County House of Corrections by two Rochester police detectives regarding a fire at 19 Summer Street. As a result of that interrogation, Ragas was charged with one count of arson. A private attorney who was in an adjacent room at the time overheard parts of the interrogation, and upon leaving the room made certain observations of the manner in which the detectives were conducting the interview. Subsequently, the attorney contacted the Strafford County Attorney's Office, and provided that office with a statement detailing his observations. After reviewing the police reports and tapes of the interview, the [2] county attorney wrote to both the Rochester Police Department and the Attorney General's Office expressing concerns about the manner in which the interrogation was conducted. This generated a review by the Attorney General's office into the incident.
The charges against Linda Ragas for the 19 Summers Street arson were ultimately dropped. Ragas is, however, presently charged with an unrelated arson that occurred at 29 Signal Street in Rochester. There is a possibility she could still be charged with the 19 Summer Street arson, which remains an open investigation.
The plaintiff requests disclosure of the following materials: (1) copies of the audio tape and any transcripts of the interview; (2) affidavits and statements of participants or witnesses to the interview, and (3) follow up letters, reviews, or investigations relating to the detectives' conduct during the interview. The Attorney General's office has produced its entire file relating to this matter for in camera review by the court.
The plaintiff argues that the requested materials do not relate to the police investigation, but rather relate to the manner of the interrogation and the complaints that were filed regarding that interrogation. The plaintiff asserts that because there is no pending internal disciplinary matter, and the charges against Ragas for the 19 Summer Street fire have been dropped, the materials are not exempt from the provisions of RSA 91-A.
In response, the defendant argues that disclosure of the audio tape and police reports of the interrogation would [3] interfere with an open criminal investigation, and would compromise Ragas' right to a fair trial. In addition, the defendant asserts that the statement of the attorney who witnessed part of the interrogation is a document related to an internal personnel matter and, therefore, exempt from RSA 91-A. Finally, the State argues that the follow up letters, reviews, and investigations of the detectives' conduct are also exempt from disclosure since they constitute the deliberative process of governmental agencies dealing with an internal personnel matter.
New Hampshire's Right-to-Know Law (RSA 91-A) entitles every citizen to "inspect all public records . . . except as otherwise prohibited by statute or RSA 91-A:5." RSA 91-A:4. The term "public records" is not defined by statute, see Brent v. Paquette, 132 N.H. 415, 421 (1989); however, it "will generally include any document, book, paper, manuscript, drawing, photograph, map, sound recording, microform or other material . . . made or received pursuant to law or in connection with the transaction of official business." Loughlin, 13 N.H. Practice: Local Government Law, § 701.
In determining what is or is not a public record, the court must balance the benefits of disclosure to the public against the benefits of nondisclosure to the government. See Lodge v. Knowlton, 118 N.H. 574, 576 (1978). However, a public entity seeking to avoid disclosure of material under the Right-to-Know Law "bears a heavy burden to shift the balance toward nondisclosure." Union Leader Corp. v. City of Nashua, 141 N.H. [4] 473, 476 (1996).
First, the court considers the plaintiff's request for copies of the audio tape and police reports relating to the January 17, 2000 interrogation. These materials were compiled during the investigation of a possible arson at 19 Summer Street.
The New Hampshire Supreme Court has adopted the six-prong test included in the federal Freedom of Information Act, 5 U.S.C. § 552(b)(7) (Supp. 1975), as guidance for evaluating requests for access to police investigatory files. See Lodge v. Knowlton, 118 N.H. at 576-77. Specifically, "[i]f the requested material is an 'investigatory record compiled for law enforcement purposes,' it may be withheld if the government can prove one of the six statutory adverse results." Id. at 576.
In this case, the audio tape and the police reports relating to the January 17, 2000 interrogation constitute "investigatory record[s] compiled for law enforcement purposes" since they were compiled by detectives in the course of investigating the 19 Summer Street fire. The State argues that the records may be withheld because disclosure would (A) "interfere with enforcement proceedings" and (B) "deprive a person of a right to a fair trial or an impartial adjudication." See 5 U.S.C. § 552(b)(7)(A) and (B).
Although documents relating to an ongoing investigation are not categorically exempt from disclosure, such materials may be withheld "if disclosure would materially impair the effectiveness of an ongoing investigation . . . ." 37A Am Jur 2d, Freedom of [5] Information Acts § 301 (citing the Uniform Information Practices Code, § 2-103(a)(1)(i)). The agency must establish, however, "that some distinct harm is likely to result if the record or information requested is disclosed," and may not withhold the information simply on the basis that it is related to an enforcement proceeding. Id. § 302.
In this case, although the charges against Linda Ragas relating to the 19 Summer Street fire have been dropped, it has been only four months since the fire, and the arson investigation remains open. Ragas is currently charged with an unrelated arson, and the State asserts that it is conceivable she could later be charged again for the 19 Summer Street fire.
The benefits of nondisclosure of an investigative file are greater when a case is ongoing since there is the possibility that disclosure of the material might interfere with law enforcemnt investigations. When proceedings are in the investigatory stage, before enforcement proceedings have been initiated against a particular individual, the dissemination of law enforcement investigatory material is much more likely to impede the investigation, and ultimately to harm the government's case. The Ragas interview is an integral part of the arson investigation, and its dissemination could prematurely reveal the nature, scope, direction and focus of the investigation, enabling other potential suspects to construct defenses based on the amount of information gathered by law enforcement.
[6] The court finds that the Attorney General's Office has sufficiently established that disclosure of the audio tapes and police reports would interfere with enforcement proceedings in that such disclosure would materially impair the effectiveness of an ongoing investigation. The defendant may, therefore, withhold disclosure of the tapes and reports. See Lodge v. Knowlton, 118 N.H. at 576; 5 U.S.C. § 552(b)(7)(A).
This exemption, however, "is not intended to protect material from disclosure forever." 37A Am Jur 2d, Freedom of Information Acts § 301 at § 306. "[I]t only protects records or information compiled for law enforcement proceedings for pending proceedings." Id. Once an individual is charged and tried on the arson charge, or the investigation is closed, this exemption would no longer apply. As such, the court finds that the audio tape and police records are exempt from disclosure, at this time, due to the ongoing investigation.
Next, the court considers the plaintiff's requests for dislosure of (1) the private attorney's statements of his personal observations of the interrogation; and (2) the follow up letters and reviews relating to the detectives' conduct in that interrogation. The defendant asserts that these materials are exempt from disclosure because they relate to internal personnel matters, and the internal deliberative process of the Attorney General's Office.
In Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993), the New Hampshire Supreme Court held that internal police [7] investigatory files are exempt under RSA 91-A:5, reasoning that such 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." The court in Fenniman concluded that the legislature intended to exempt internal police investigatory files in order to "'encourage thorough investigation and discipline of dishonest or abusive police officers.'" Union Leader Corp. v. Fenniman, 136 N.H. at 627 (quoting N.H.H.R. Jour. 621 (1986) (House Bill 269 approved and ordered to third reading)).
The materials sought by the plaintiff in this case are clearly part of an investigatory file relating to an internal personnel matter. That investigation was generated when the private attorney contacted the Strafford County Attorney's Office to express concerns about the interrogation methods he saw being used by two Rochester police detectives. Apparently, the attorney spoke with Tom Hart, the Chief Investigator at the Strafford County Attorney's Office, on February 4, 2000. As a result of that conversation, the attorney sent a letter and a "Memo On My Personal Observations" to Tom Hart on February 7, 2000.
The court finds that the letter and the memo constitute documents compiled during an internal investigation into the conduct of police officers, and are, therefore, exempt from public disclosure. See Fenniman, 136 N.H. at 627; RSA 91-A:5, IV. Similarly, the follow up letters and reviews compiled during [8] the internal investigation into the officers' conduct are also exempt from public disclosure. See id. After an in camera review of those documents, the court finds that they were compiled during the internal investigation and are not, as argued by the plaintiff, the results of such an investigation.
The plaintiff argues, however, that the exemption for internal police investigatory files is limited in time to the duration of the actual investigation or internal personnel matter. The plaintiff asserts that once the disciplinary matter is concluded, the information is no longer exempt from public disclosure. The court disagrees, as such an interpretation of the law contradicts the very purpose of the exemption.
The purpose of exempting internal police investigatory files is to "encourage thorough investigation and discipline of dishonest or abusive police officers." Fenniman, 136 N.H. at 627 (quotation and citation omitted). If such files were subject to disclosure once the investigation is completed, such disclosure could have a chilling effect on the process in the future. Furthermore, RSA 91-A:5, IV, which exempts "records pertaining to internal personnel practices," places no time limitation on the exemption for such documents.
In sum, the court finds that the audio tapes and police reports of the January 17, 2000 interrogation are exempt from disclosure at the present time, since such disclosure would interfere with enforcement proceedings, specifically the effectiveness of an ongoing criminal investigation. See Lodge v. [9] Knowlton, 118 N.H. 574 (1978). In addition, the court finds that the remaining materials constitute documents compiled during an internal investigation into the conduct of police officers and are, therefore, exempt from the provisions of RSA 91-A, as "records pertaining to internal personnel practices." See Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993); RSA 91-A:5, IV. Although the information contained in these materials may implicate discovery issues in the criminal context pursuant to State v. Laurie, 139 N.H. 325 (1995), public disclosure under RSA 91-A is not warranted.
Accordingly, the plaintiff's Petition for Request for Disclosure of Public Documents is DENIED.
So ORDERED.