Macaione v. Rundles, Doc. No. 219-2004-E-113 (Strafford Super. Ct., June 30, 2004) (Mohl, J.)




Rose Macaione, Individually,
and m/n/f of
Shelley Valhos


Janice Rundles,
Strafford County Attorney

Docket No.: 04-E-113


This case arises from a motor vehicle accident that occurred in Dover, New Hampshire, on February 22, 2003. The plaintiff's daughter, Shelley Valhos, was injured in the accident, and the plaintiff, Rose Macaione, brought a civil suit against the driver of the car that injured her daughter. (See Docket No. 03-C-231). The driver of the car, Crystal Childers, was indicted on a charge of Conduct After Accident, and the criminal case is also pending in this court. (See Docket No. 03-S-606-F). The criminal case is scheduled for trial during the week of July 26, 2004.

The plaintiff filed this action after the Stafford County Attorney denied her access to the police reports of the investigation into the accident. This court has already issued an order in the civil case permitting both the plaintiff and Childers access to the police reports for the purpose of that litigation, but the right-to-know claim was not resolved by the court's order. After review of the parties' arguments and the applicable law, the court finds and rules as follows.

[2] "Enacted in 1967, the right-to-know law . . . was intended to increase public access to governmental proceedings in order to augment popular control of government and to encourage agency responsibility. Since its enactment, [the New Hampshire Supreme Court] has broadly construed the statute's provisions in order to further these objectives." Society for Protection of N.H. Forests v. Water Supply & Pollution Control Comm'n, 115 N.H. 192, 194 (1975). The statute guarantees citizens the right to inspect and photocopy all public records, RSA 91-A:4 (Supp. 2003). Police reports are public records. See Lodge v. Knowlton, 118 N.H. 574, 576 (1978).

In Lodge, the New Hampshire Supreme Court adopted the framework set forth in the federal Freedom of Information Act detailing circumstances in which police investigative files are exempt from disclosure pursuant to the right to know law. Id. The following records are exempt:

investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to 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 and physical safety of law enforcement personnel.


To withhold the release of public records, the government agency seeking to prevent disclosure must demonstrate that the file is investigatory and was compiled for law enforcement purposes. Id. at 576-77. Then, the agency must demonstrate that the records fall within one of the exemptions listed above. Id. at 577.

In support of her contention that the investigative records in this case should not be made available to the public until after the original matter is resolved, the Strafford County Attorney relies on the first two exemptions set forth in Lodge, supra. Specifically, the County Attorney maintains disclosing investigative reports which form the foundation of a criminal matter that has not yet been adjudicated "would prematurely reveal all of the information upon which the State will [3] rely to prove its case against the defendant." (Def.'s Mem. Law at ¶ 4). The County Attorney argues the enforcement proceedings would be interfered with because witnesses would have access to other witnesses' statements, which could compromise the integrity of the witnesses' testimony at trial. Furthermore, the County Attorney argues that releasing the investigative reports prior to trial would make the names of the witnesses public information, and therefore expose them to witness tampering.

The County Attorney further argues that allowing the records to be publicly disseminated would jeopardize Childers' right to a fair trial or impartial adjudication in that any member of the jury pool would have access to the reports, whether the information contained within them is admissible or not. (Def.'s Mem. Law at ¶ 5). The County Attorney's concerns rest upon the release of the documents prior to the adjudication of the criminal case. Her concerns pertaining to the exemptions from release are no longer present after the case has been adjudicated.

The plaintiff argues that to arbitrarily draw a line excluding the release of police records prior to trial is inconsistent with the purpose of the right to know law. The plaintiff maintains this is particularly so in a situation like this, in which the defendant has access to the police reports by virtue of the discovery rules in criminal cases, but the plaintiff, in the civil case, is denied access on the grounds set forth in Lodge.1

The court first addresses the County Attorney's argument that Childers' right to a fair trial or impartial adjudication would be jeopardized because members of the public, and thus members of the potential jury pool, would have access to the records, which may include information that is ultimately not admissible at trial. This argument is not persuasive. Specifically, the voir dire process is designed, in part, to determine whether members of the jury pool have been prejudiced by information they have obtained outside of the court proceedings, such as through the news media. [4] See, e.g., State v. VandeBogart, 136 N.H. 107, 110 (1992). Moreover, mere knowledge of facts about the case outside of those introduced at trial is not sufficient to disqualify a juror; the juror must be prejudiced by such knowledge or unable to be impartial because of it. See id. at 115.

The fact that prospective or potential jurors may access the police investigatory files in this case is not sufficient to override the right to know law's purpose of ensuring "both the greatest possible public access to the actions, discussion, and records of all public bodies, and their accountability to the people." RSA 91-A:1 (2001). Should jurors access the records, and become prejudiced by the knowledge gleaned therefrom, the voir dire process would adequately protect Childers' right to a fair trial.

The County Attorney's argument that the investigatory records should be exempt from release because of their potential impact on witnesses in the criminal case bears more weight. The preservation of the reliability of enforcement proceedings is of the utmost concern to both the County Attorney and to the public. The potential for witnesses to alter their testimony upon accessing the investigatory reports of the incident or for third parties to attempt to pressure the witnesses to give testimony more favorable to either side threatens the integrity of those proceedings. It is unrealistic to institute a policy whereby only those members of the public who are not involved in the case or who do not have an interest in the case may access the investigatory reports. Such a policy unduly burdens the County Attorney's office, and would be virtually impossible to enforce. Therefore, there is no way to maintain the integrity or truthfulness of the judicial proceedings against Childers in the criminal case and simultaneously allow public access to the investigatory reports.

[5] As such, the court finds that allowing the public to access the investigatory reports prior to the conclusion of the adjudication of the criminal case jeopardizes the integrity of the enforcement proceedings, an exemption set forth in Lodge, 118 N.H. at 576.

Accordingly, the plaintiff's petition to access public records pursuant to RSA 91-A is DENIED.

So Ordered.

6/30/2004    /s/   

DateBruce E. Mohl

Presiding Justice

1 These issues have been resolved, in part, by the court order in 03-C-231.