City of Dover v. Union Leader, Doc. No. 219-2006-E-177 (Strafford Super. Ct., November 30, 2006) (Mohl, J.)




City of Dover


Union Leader Corp.

Docket No.: 06-E-177


The petitioner, the City of Dover ("the City"), brings this petition for declaratory judgment, requesting clarification to this court's order in docket #04-E-173 ("the prior order") in light of a request for information under the State's Right-to-Know Law, RSA Chapter 91-A. The respondent, the New Hampshire Union Leader ("the Union Leader"), seeks the disclosure of detailed information regarding City of Dover employees' salaries and benefits. The court held a hearing on this matter on November 20, 2006. After review of the parties' arguments and the applicable law, the court finds and rules as follows.

On October 6, 2004, this court issued an order denying Dover Citizens for Sound Government's petition under RSA 91-A for the division of the City Manager and Department Heads' salaries into various categories to indicate how the employees' pay was allocated. Dover Citizens for Sound Government v. City of Dover, Strafford Superior Court, Docket No. 04-E-173 (October 6, 2004) (Order, Mohl, J.). The categories included the compensation the City Manager receives for unused sick and vacation days. Id. This court found the request to essentially be a request for "what [2] health care plan the City Manager has chosen, how much it costs, and how many sick and vacation days he decided to, or needed to, take each year." Id. Since the City already disclosed the City Manager's salary, "th[e] information would not give the public any more information than it already has" and "disclosing this information could divulge to the public whether if the City Manager has any health problems or how the City Manager has allocated his personal time." Id.

On September 26, 2006, the Union Leader submitted a request, pursuant to RSA 91-A, seeking detailed information on payments made to the City's employees for compensated absences for sick or vacation time in the past five years. The City's employees are permitted to accumulate vacation time from year to year and to roll over unused vacation time to subsequent years. Prior to 1996, employees were allowed to accumulate unused sick time in addition to unused vacation time. The employees are allowed to request payments of the accumulations of compensated absences on a periodic basis.

The City asserts it has already released to the public the personnel practices of the City. Specifically, the City argues it has made the following information readily available to the public: (1) copies of all individual employment contracts with City employees; (2) copies of all collective bargaining agreements with the seven collective bargaining units of the City of Dover; (3) an explanation of the costs and types of health, dental and other insurance plans available to City employees; (4) the Total Compensation received by each employee in the City of Dover; (5) a copy of the Merit Plan detailing the pay grades and ranges of wages of each position; (6) a listing of the employees by name who received pay-outs for compensated absences in 2004 and 2005; and (7) a [3] disclosure of the total amounts paid to employees for compensated absences in 2004 and 2005 without a breakdown by individual employee.

The City also argues it has made the following individual employee information readily available: (1) the name of each employee and the wages of each employee for FY '04 and FY '05; (2) the total cost of the benefits provided to each employee for FY '04 and FY '05; (3) the names of the employees who received distributions of compensated absences for calendar years 2004 and 2005; and (4) the total amount paid by the City of Dover for compensated absences to all employees for calendar years 2004 and 2005.

The City asserts its declination to provide individual employee's severance pay is in compliance with the prior order. The City argues if it provides the Union Leader with the requested information, it would be possible to calculate the health plan of the individuals.

The Union Leader cites Mans v. Lebanon Sch. Bd., 112 N.H. 160, 163 (1972) and asserts there is no privacy issue at stake in this case because the information requested is not the type of intimate details that might harm an individual. The Union Leader argues this information consists of a compensation of unused sick, vacation and personal time and the Union Leader does not request specifics such as the nature of an illness or the destination of any vacation.

Furthermore, the Union Leader argues that even if the court finds the information is private, RSA 91-A still mandates disclosure because the private information must be disclosed where it will inform the public about the activities of its government. Specifically, the Union Leader argues the public has a right to know whether the paid [4] leave available is reasonable considering the leave actually used by employees. The Union Leader asserts the public has a right to know where its tax dollars are being used.

At the hearing on this matter, the Union Leader asserted the public has a right to know where every penny is going. The Union Leader argued there is a difference between how much sick time is used and for what it is used, with the former being information available to the public.

The legislature created RSA 91-a, the Right-to-Know Law, 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 (2001). The Right-to-Know Law "helps 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. Legis. Budget Assistant, 148 N.H. 551, 553 (2002). The court resolves questions under the Right-to-Know Law "with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents." Id. at 554 (citation omitted). Therefore, the court construes "provisions flavoring disclosure broadly, while construing exemptions narrowly. Id.

"Every citizen during the regular or business hours of all such bodies or agencies, and on the regular business premises of such bodies or agencies, has the right to inspect all public records, . . . except as otherwise prohibited by statute or RSA 91-A:5." RSA 91-A:4, I (2001 & Supp. 2006). "[P]ersonnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy" are exempt from disclosure. RSA 91-A:5, IV.

[5] Other jurisdictions have addressed the request, under Right-to-Know Law, for individual employees' itemized amount of leave days and have found such information as not personal in nature so as to amount to an invasion of privacy. Perkins v. Freedom of Information Commission et al., 228 Conn. 158, 177 (1993) (finding "the plaintiff cannot possibly prove that disclosure of the numerical data in her sick leave records would be highly offensive to a reasonable person"); Brogan v. School Committee of Westport, 401 Mass. 306, 309 (1987) (finding "information as to a named individual's medical condition inherently is 'of a personal nature' in a way that the fact that a named teacher took a 'sick day' or a 'personal day' on a certain date is not").

The court finds the rulings of Massachusetts and Connecticut to be persuasive. Information pertaining to compensation for accumulated sick, vacation, or personal days is not personal in nature so as to warrant nondisclosure. Public employees are accountable to the public and accept a diminished amount of privacy in exchange for such employment. See Id. The Union Leader's request for each individual employee's severance pay is numerical information and does not disclose the reason such employee used sick or vacation days, which would be personal in nature.

Accordingly, the court finds RSA 91-A requires disclosure of each individual employee's severance pay, and the categories that comprise such pay.

So Ordered.

11/30/2006    /s/   

DateBruce E. Mohl

Presiding Justice