Union Leader v. City of Nashua, Doc. No. 226-1995-E-023 (Hillsborough Super. Ct. South, May 15, 1997) (Hampsey, J.)





No. 95-E-023

Union Leader Corporation


City of Nashua


The plaintiff seeks the release of a videotape and certain documents from the City of Nashua under New Hampshire's Right-to-Know Law (RSA 91-A) relating to a July 1994 arrest of Alan H. Rudman by the Nashua police. Specifically, the plaintiff seeks a copy of the transcript of the arresting officer's deposition, the officer's narrative arrest report and a videotape of Rudman taken during his arrest. The defendant objects contending that disclosure would constitute an unwarranted invasion of Rudman's privacy.

This case was remanded by the New Hampshire Supreme Court after a previous denial of the plaintiff's petition. A hearing on remand was held on May 13, 1997. The following facts are undisputed.

In July 1994, Alan H. Rudman was charged with aggravated DWI after being arrested by the Nashua police. This charge was later the subject of a nolle prosequi entered by the City of Nashua. Pursuant to a plea bargain, Rudman pled guilty to the motor vehicle violation of speeding. In its report to the Attorney General, the City explained its decision to nol pros as follows. "Reduced due to defendant observed to have no impairment on [2] video, no breath test, no field sobriety tests within the Nashua Police Department."

In Lodge v. Knowlton, 118 N.H. 574 (1978) the New Hampshire Supreme Court adopted the six-prong test included in the Freedom of Information Act, see 5 U.S.C. ยง 552(b) (7) (1982) (amended 1986) (FOIA), which guides courts in evaluating requests for access to police investigative files. Lodge, 118 N.H. at 577. One exemption in the Lodge list is for "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . constitute an unwarranted invasion of privacy." Id. at 576.

The language in Lodge offers little assistance beyond the language of the statutory exemption itself. Thus, when an exemption is claimed upon privacy grounds, the Court need only decide whether disclosure of information would constitute an invasion of privacy within the meaning of RSA 91-A:5, IV. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475, No. 95-185, Slip op. at 3 (December 5, 1996) (citing U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 771 (1989) (discussing when an invasion of privacy may be "warranted")).

RSA Chapter 91-A promotes public access to records of all public bodies by permitting any citizen to inspect public records. RSA 91:1, A:4. One category of records that may be exempt from disclosure are those files whose disclosure would constitute an invasion of privacy. RSA 91-A:5 (supp. 1994).

[3] In determining whether the exemption applies, the Court applies a balancing test, weighing "the public interest in disclosure of the requested information against the government interest in nondisclosure, and in privacy exemption cases, the individual's privacy interest in nondisclosure. Union Leader Corp. v. City of Nashua, 141 N.H. at 475, No. 95-185, Slip op. at 3 (December 5, 1996) (citing Chambers v. Gregg, 135 N.H. 478, 481 (1992); Mans v. Lebanon School Bd., 112 N.H. 160, 162 (1972)).

If the claimed exemption is invasion of privacy, the Court must "review each document to which access is sought and for which a specific right of privacy is claimed to determine if there is a sufficiently compelling reason that would justify preventing public access to that document." Petition of Keene Sentinel, 136 N.H. 121, 129-30 (1992). This review is conducted keeping in mind that the basic purpose of the Right-to-Know Law "is to provide the utmost information to the public about what its government is up to." Union Leader Corp. v. City of Nashua, 141 N.H. at 476, No. 95-185, Slip op. at 4 (internal quotation omitted). "When a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure." Id. (citation omitted).

"In Right-to-Know cases, the plaintiff's motives for seeking disclosure are irrelevant." Id. "Although the particular motives of the requesting party are irrelevant to reaching the proper balance," id., our State Supreme Court has adopted the [4] United States Supreme Court's observation in U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 773 (1989), that

[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within th[e] purpose [of the FOIA]. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct. In th[e Reporters Committee] case -- and presumably in the typical case in which one private citizen is seeking information about another -- the requester [did] not intend to discover anything about the conduct of the agency that has possession of the requested records. Indeed, response to [the Reporters Committee] request would not shed any light on the conduct of any Government agency or official.

Union Leader Corp. v. City of Nashua, 141 N.H. at 477, No. 95-185, Slip op. at 5 (quoting Reporters Committee, 489 U.S. at 773).

Keeping in mind the public's strong interest in disclosure of information pertaining to its government's activities, "there may also be strong privacy interests on the other side of the balance, particularly in law enforcement investigatory records."

[I]ndividuals have a strong interest in not being associated unwarrantedly with alleged criminal activity. Protection of this privacy interest is a primary purpose of [the FOIA] exemption 7(C). The 7(C) exemption recognizes the stigma potentially associated with law enforcement investigations and affords broader privacy rights to suspects, witnesses, and investigators.

Id. (quoting Stern v. F.B.I., 737 F.2d 34, 91-92 (D.C. Cir. 1984) (citations omitted).

The Court has reviewed the three sought after pieces of information in camera. Applying the principles set forth above under the mandated balancing test to each piece of information, the Court finds and rules that the plaintiff is entitled to [5] access of the deposition, narrative report and video at issue.

On the one hand, the public's interest in knowing about the way its police department handles arrests of DWI cases is strong. Allowing disclosure of the disputed information will inform the citizenry about the conduct of the executive branch of our government. Specifically, it will shed light on the way the Nashua police department carries out its statutory duties with respect to the arrest and prosecution of DWI cases. On the other hand, Rudman's interest in keeping private his DWI arrest and subsequent dismissal is weak, especially since the DWI incident and subsequent dismissal were widely reported by the press. Moreover, because of wide press coverage of the arrest and dismissal, the danger of unwarranted stigma attaching to Rudman is virtually nonexistent. Finally, because the DWI case is no longer pending but has been disposed of, Rudman will suffer no prejudice by disclosure.

The defendant has failed to sustain its heavy burden of shifting the balance towards nondisclosure. As such, the Court finds that the public's right to gain access to the disputed information outweighs Rudman's privacy interest. Accordingly, the plaintiff's Petition for Information Pursuant to RSA 91-A is GRANTED. The City of Nashua is ordered to disclose to the plaintiff, and any member of the public upon request, the arresting officer's deposition, the officer's narrative report and the videotape of Rudman taken during his arrest. The [6] defendant's requests for findings of fact and rulings of law are ruled upon as follows. Granted: 1-10; Denied: 11; 12.


Date: May    15   , 1997    /s/   

Bernard J. Hampsey, Jr.