Seacoast Newspapers, Inc. v. City of Portsmouth ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2019-0135
SEACOAST NEWSPAPERS, INC.
v.
CITY OF PORTSMOUTH
Argued: November 20, 2019
Opinion Issued: May 29, 2020
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Richard C.
Gagliuso on the brief and orally), and American Civil Liberties Union of New
Hampshire, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on
the brief), for the plaintiff.
Jackson Lewis P.C., of Portsmouth (Thomas M. Closson on the brief and
orally), for the defendant.
Nolan Perroni, PC, of North Chelmsford, Massachusetts (Peter J. Perroni
on the brief and orally), for the intervenor, New England Police Benevolent
Association, Local 220.
DONOVAN, J. The plaintiff, Seacoast Newspapers, Inc., appeals an order
of the Superior Court (Messer, J.) denying its petition to disclose an arbitration
decision concerning the termination of a police officer by the defendant, the
City of Portsmouth. Seacoast primarily argues that we have previously
misconstrued the “internal personnel practices” exemption of our Right-to-
Know Law. See RSA 91-A:5, IV (2013). Today, we take the opportunity to
redefine what falls under the “internal personnel practices” exemption,
overruling our prior interpretation set forth in Union Leader Corp. v.
Fenniman, 136 N.H. 624 (1993). As explained below, we conclude that only a
narrow set of governmental records, namely those pertaining to an agency’s
internal rules and practices governing operations and employee relations, falls
within that exemption. Accordingly, we hold that the arbitration decision at
issue here does not fall under the “internal personnel practices” exemption,
vacate the trial court’s order, and remand for the trial court’s consideration of
whether, or to what extent, the arbitration decision is exempt from disclosure
because it is a “personnel . . . file[ ].” RSA 91-A:5, IV. We also deny Seacoast’s
request for attorney’s fees.
I. Factual and Procedural History
The following facts are undisputed or supported by the record. In 2015,
the City of Portsmouth terminated the employment of Aaron Goodwin, a former
police officer with the Portsmouth Police Department. Following Goodwin’s
termination, the Portsmouth Police Ranking Officers Association, New England
Police Benevolent Association, Local 220 (Union) filed a grievance on his behalf
challenging the termination and seeking his reinstatement. Arbitration of the
grievance was conducted in accordance with the Union’s collective bargaining
agreement and administered by an independent arbitrator. The final decision
was issued in 2018.
Goodwin’s alleged misconduct while employed by the Department has
been the subject of significant media attention throughout New Hampshire and
beyond, given the public’s significant interest in learning about how its public
officials resolve matters involving alleged breaches of trust and conflicts of
interest by public employees and, in particular, police officers. To that end, a
reporter employed by Seacoast submitted a written request to the City seeking
access to a copy of the arbitration decision. The City agreed that it should be
released to the public. However, the City’s attorney informed the reporter that
the City would not release the decision in light of the position taken by the
Union that it was exempt from disclosure under the Right-to-Know Law’s
exemptions for “internal personnel practices” and “personnel . . . files.” See
RSA 91-A:5, IV.
In response, Seacoast filed a petition in superior court seeking to compel
disclosure of the decision and requesting attorney’s fees. It argued that the
City had “not demonstrated any reasonable valid basis for denying access” to
the decision. The City answered that it did not object to the relief sought by
2
Seacoast with the exception of its request for attorney’s fees. However, the
Union moved to intervene and the trial court granted its motion. The Union
opposed Seacoast’s petition, reiterating its position that both exemptions
precluded disclosure of the decision. After a hearing and in camera review of
the decision, the trial court concluded that it was exempt from disclosure
under the “internal personnel practices” exemption. See RSA 91-A:5, IV. The
trial court reasoned that the arbitration grievance “process was conducted
internally and was performed for the benefit of . . . Goodwin and his former
employer” and therefore bore “all the hallmarks of an internal personnel
practice.” The trial court therefore did not determine whether the decision is
also exempt from disclosure because it is a personnel file. See RSA 91-A:5, IV.
This appeal followed.
II. Standard of Review
At the outset, we describe the appropriate standard of review in Right-to-
Know Law matters. Part I, Article 8 of the New Hampshire Constitution
provides that “the public’s right of access to governmental proceedings and
records shall not be unreasonably restricted.” The Right-to-Know Law states
that “[e]very citizen . . . has the right to inspect all governmental records . . .
except as otherwise prohibited by statute or RSA 91-A:5.” RSA 91-A:4, I
(2013).
The ordinary rules of statutory construction apply to our interpretation
of the Right-to-Know Law, and we therefore look to the plain meaning of the
words used when interpreting the statute. Union Leader Corp. v. City of
Nashua, 141 N.H. 473, 475 (1996). Ultimately, this court interprets the Right-
to-Know Law with a view toward disclosing the utmost information in order to
best effectuate our statutory and constitutional objective of facilitating access
to public documents. Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H.
540, 546 (1997). Accordingly, although the statute does not provide for
unfettered access to public records, we broadly construe provisions in favor of
disclosure and interpret the exemptions restrictively. Id. We also consider the
decisions of courts in other jurisdictions because similar acts are in pari
materia and interpretatively helpful. Id.
III. Analysis
At issue here are two exemptions from disclosure set forth in the Right-
to-Know Law for records pertaining to: (1) “internal personnel practices”; and
(2) “personnel . . . files.” RSA 91-A:5, IV. The trial court relied on the progeny
of Fenniman in ruling that the arbitration decision is exempt because it is an
internal personnel practice.
3
A. “Internal Personnel Practices” Jurisprudence
In Fenniman, we broadly construed the “internal personnel practices”
exemption to categorically exclude from disclosure records documenting a
public agency’s internal discipline of an employee. Fenniman, 136 N.H. at 626-
27. Although we recognized that “we generally interpret the exemptions in [the
Right-to-Know law] restrictively,” we also stated that “the plain meanings of the
words ‘internal,’ ‘personnel,’ and ‘practices’ are themselves quite broad.” Id. at
626. As a result, we held that documents compiled during an internal
investigation of a police department lieutenant accused of making harassing
phone calls were “categorically exempt” from disclosure under the “internal
personnel practices” exemption because “they document[ed] procedures leading
up to internal personnel discipline, a quintessential example of an internal
personnel practice.” Id. at 625-27.
Our interpretation of the “internal personnel practices” exemption in
Fenniman departed from our customary Right-to-Know Law jurisprudence in
two significant ways. Reid v. N.H. Attorney General, 169 N.H. 509, 519-20
(2016). First, we failed to interpret the exemption narrowly and, second, we
declined to employ a balancing test. Id. at 520; see, e.g., Lambert v. Belknap
County Convention, 157 N.H. 375, 382-86 (2008) (describing the balancing test
employed to determine whether public records are exempt from disclosure
because their release would constitute invasion of privacy). Our analysis in
Fenniman had additional shortcomings, including its failure to consult
decisions from other jurisdictions interpreting similar statutes, in particular,
cases interpreting the federal Freedom of Information Act (FOIA) — an inquiry
we make in cases requiring us to interpret certain provisions of the Right-to-
Know Law and its failure to consider whether a broad interpretation of the
“internal personnel practices” exemption might render any of the remaining
statutory language redundant or superfluous — in particular, the language
exempting “personnel . . . files.” Reid, 169 N.H. at 520; see RSA 91-A:5, IV.
We subsequently applied the “internal personnel practices” exemption in
Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006). There, we
concluded that an internal investigatory report regarding allegations of threats
and harassment made by an employee of the North Conway Water Precinct fell
under the “internal personnel practices” exemption. Id. at 2, 4. Although the
report was prepared by outside investigators, we relied on Fenniman and
reasoned that “the investigation could have resulted in disciplinary action,” and
thus the report pertained to “internal personnel practices.” Id. at 4. The
Hounsell Court failed to analyze the “internal personnel practices” language or
consider the import of RSA 91-A:5’s other exemptions.1
1
In Montenegro v. City of Dover, 162 N.H. 641, 649-50 (2011), we applied, for the first time, the
“internal personnel practices” exemption outside the context of employee misconduct or discipline.
Relying in part on Fenniman, we concluded that “the job titles of persons who monitor [a] City’s
surveillance equipment” did not fall within the exemption. Id. at 650.
4
Then, in Reid, 169 N.H. at 523, we limited the application of Fenniman’s
broad interpretation of the exemption. Although neither party in Reid asked us
to overrule Fenniman, we pointed out the shortcomings of Fenniman’s analysis
of the exemption’s language, as described above. Id. at 519-22. Accordingly,
we declined to extend the holding of either Fenniman or Hounsell “beyond their
own factual contexts” and instead “return[ed] to our customary standards for
construing the Right-to-Know Law.” Id. at 521-22. We clarified that to qualify
“an investigation into employee misconduct as a personnel practice, . . . the
investigation must take place within the limits of an employment relationship.”
Id. at 523. Applying this interpretation of the exemption, we held that the
records of an investigation by the attorney general of a county attorney did not
fall within the exemption because the attorney general was not the employer of
the county attorney. Id. at 515, 525-26. We remanded for the trial court to
determine whether the records fell under the exemption for personnel files. Id.
at 527.
Most recently, in Clay v. City of Dover, 169 N.H. 681, 684, 688 (2017), we
held that the completed rubric forms from a school superintendent search
committee fell under the “internal personnel practices” exemption. Relying
primarily on Reid, we concluded that “the completed rubric forms relate to
hiring, which is a classic human resources function,” and therefore “pertain to
‘personnel practices.’” Id. at 686. We also determined that the forms were
“internal” because “they were filled out by members of the school board’s
superintendent search committee on behalf of the school board, the entity that
employs the superintendent.” Id. at 687. Nowhere in Clay did we indicate that
the parties had requested that we overrule our prior interpretation of the
“internal personnel practices” exemption.
B. Stare Decisis Analysis
On appeal, Seacoast argues that we misconstrued the Right-to-Know
Law’s “internal personnel practices” exemption in Fenniman and urges us to
overrule that case. We have acknowledged that, in Fenniman, we departed
from our customary Right-to-Know Law analysis. See Reid, 169 N.H. at 519-
22. That recognition, in conjunction with Seacoast’s request that we overrule
Fenniman, triggers our stare decisis analysis. See State v. Quintero, 162 N.H.
526, 539 (2011).
Stare decisis, “the idea that today’s Court should stand by yesterday’s
decisions,” Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401, 2409 (2015),
commands great respect in a society governed by the rule of law, and we do not
lightly overrule a prior opinion, State v. Duran, 158 N.H. 146, 153 (2008).
“Thus, when asked to reconsider a holding, the question is not whether we
would decide the issue differently de novo, but whether the ruling has come to
be seen so clearly as error that its enforcement was for that very reason
doomed.” Id.
5
We will overturn a decision only after considering: (1) whether the rule
has proven to be intolerable simply by defying practical workability; (2) whether
the rule is subject to a kind of reliance that would lend a special hardship to
the consequence of overruling; (3) whether related principles of law have so far
developed as to have left the old rule no more than a remnant of abandoned
doctrine; and (4) whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification. Ford v. N.H. Dep’t of Transp., 163 N.H. 284, 290 (2012).
Although these factors guide our judgment, no single factor is dispositive. Id.
First, we recognize that a broad interpretation of the “internal personnel
practices” exemption, which leads to a subset of public documents being
categorically exempt from disclosure, is easily applied. Although Reid, 169
N.H. at 522-23, limited Fenniman’s broad interpretation of the “internal
personnel practices” exemption, we cannot conclude that the rule, as it stands,
defies practical workability.
Second, we consider whether Fenniman’s interpretation is subject to a
kind of reliance that would lend a special hardship to the consequence of
overruling it. See Ford, 163 N.H. at 290. “Reliance interests are most often
implicated when a rule is operative ‘in the commercial law context . . . where
advance planning of great precision is most obviously a necessity.’” Quintero,
162 N.H. at 537 (quoting Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833, 855-56 (1992) (brackets omitted)). Such interests are not
present here and the Union has identified no reliance interest implicated by
Fenniman’s interpretation.
Third, we consider whether related principles of law have developed such
that the old rule is no more than a remnant of an abandoned doctrine. Ford,
163 N.H. at 290. Fenniman is an outlier in our Right-to-Know Law
jurisprudence, in part, because it broadly interpreted one of the statutory
exemptions. Despite our broad interpretation of “internal personnel practices”
in Fenniman, we have otherwise advanced a narrow construction of the other
exemptions set forth in our Right-to-Know Law. See Montenegro, 162 N.H. at
649-50 (narrowly interpreting the “internal personnel practices” exemption to
not include job titles); Prof’l Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H.
699, 707-10 (2010) (narrowly interpreting the exemption for “confidential,
commercial, or financial information” the disclosure of which would constitute
an invasion of privacy); Lambert, 157 N.H. at 379-86 (narrowly interpreting
various exemptions); N.H. Civil Liberties Union v. City of Manchester, 149 N.H.
437, 439-42 (2003) (narrowly interpreting the exemption for records “whose
disclosure would constitute invasion of privacy”); Goode v. N.H. Legislative
Budget Assistant, 148 N.H. 551, 554-58 (2002) (narrowly interpreting the
exemption for “[r]ecords pertaining to . . . confidential . . . information”).
6
That our Right-to-Know Law jurisprudence since Fenniman has narrowly
construed other exemptions within RSA chapter 91-A supports our conclusion
that a broad interpretation of the “internal personnel practices” exemption is,
at the very least, an abandoned principle.2 See State v. Matthews, 157 N.H.
415, 420 (2008) (concluding that a rule was “a remnant of an abandoned
doctrine,” in part, because it was “inconsistent with . . . our current
jurisprudence”). Although in Reid we limited the application of Fenniman to its
own factual context, overruling Fenniman’s interpretation of the exemption
would further allow us to “return to our customary standards for construing
the Right-to-Know Law.” Reid, 169 N.H. at 522.
Fourth, we ask whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification. Ford, 163 N.H. at 290. “‘[We] are sometimes able to perceive
significant facts or understand principles of law that eluded [our] predecessor
and justify departures from existing decisions.’” Duran, 158 N.H. at 154,
(quoting Casey, 505 U.S. at 866). We see the interpretation of the “internal
personnel practices” exemption differently now than we did when Fenniman
was decided. As noted above, in Fenniman, we failed to consider a number of
factors that we typically analyze when interpreting the Right-to-Know Law. In
particular, the Fenniman Court failed to consider: (1) the principles compelling
transparent governance integrated into our constitution and the Right-to-Know
Law’s purpose; (2) the meaning of the exemption’s words when read together;
(3) the federal courts’ interpretation of a similar exemption in FOIA; and (4)
whether a broad interpretation of the exemption renders another exemption
redundant.
As a threshold matter, the Fenniman Court failed to consider the import
of our constitution and the Right-to-Know Law’s purpose, both of which compel
us to interpret the statute “with a view to providing the utmost information”
and “facilitating access to all public documents.” Prof’l Firefighters of N.H., 159
N.H. at 703 (quotation omitted); see Orford Teachers Assoc. v. Watson, 121
N.H. 118, 119-20 (1981). Thus, our broad interpretation of the exemption in
Fenniman, which has resulted in a broad category of governmental documents
being withheld from public inspection, is contradictory to our state’s principles
of open government. See Reid, 169 N.H. at 532 (recognizing the public’s
significant interest in knowing that a government investigation is
comprehensive and accurate); Prof’l Firefighters of N.H., 159 N.H. at 709
(“[K]nowing how a public body is spending taxpayer money in conducting
public business is essential to the transparency of government, the very
purpose underlying the Right-to-Know Law.”); N.H. Civil Liberties Union, 149
N.H. at 441 (“Official information that sheds light on an agency’s performance
2
Although we recently applied Fenniman’s interpretation of the “internal personnel practices”
exemption in Clay, 169 N.H. at 686, we were not asked at that time to reconsider Fenniman’s
interpretation.
7
of its statutory duties falls squarely within the statutory purpose of the Right-
to-Know Law.”).
Furthermore, in Fenniman we simply noted that the meanings of the
individual words in the “internal personnel practices” exemption were “quite
broad,” Fenniman, 136 N.H. at 626, but did not consider how, when read
together, the words modify one another, thereby limiting the scope of the
exemption, cf. Reid, 169 N.H. at 522. Thus, we failed to consider the meaning
of the phrase “internal personnel practices” taken as a whole. See Fenniman,
136 N.H. at 626 (noting that “the dictionary does not explicitly include
documents such as internal police investigatory files within the[ ] definitions” of
the individual words).
The Fenniman Court also did not consider the federal courts’
interpretation of a similar exemption in FOIA. RSA chapter 91-A was enacted
just one year after FOIA, and the language of the “internal personnel practices”
exemption closely tracks the language of a similar FOIA exemption. Compare
RSA 91-A:5, IV (exempting from disclosure records pertaining to “internal
personnel practices”), with 5 U.S.C. § 552(b)(2) (2018) (exempting from
disclosure matters “related solely to the internal personnel rules and practices
of an agency”). Accordingly, we have often looked specifically to federal case
law for assistance when interpreting the “internal personnel practices”
exemption, although we did not do so in Fenniman. See, e.g., Montenegro, 162
N.H. at 650; Mans v. Lebanon School Bd., 112 N.H. 160, 162-63 (1972). As a
result, our construction of the exemption in Fenniman was “markedly broader
than the United States Supreme Court’s interpretation of that exemption’s
federal counterpart.” Reid, 169 N.H. at 521.
Finally, in Fenniman we failed to consider whether broadly construing
the “internal personnel practices” exemption, such that the exemption applies
to internal investigations of an employee’s misconduct, renders the exemption
for “personnel . . . files” superfluous. See RSA 91-A:5, IV. The legislature is
presumed not to use superfluous language and, therefore, a broad
interpretation that renders statutory language irrelevant ignores legislative
prerogatives. See Duran, 158 N.H. at 155.
Today, as discussed below, we consider these factors and how they
circumscribe our interpretation of the “internal personnel practices” exemption.
“‘[W]e owe somewhat less deference to a decision that was rendered without
benefit of a full airing of all the relevant considerations.’” Duran, 158 N.H. at
155 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658,
709 n.6 (1978) (Powell, J., concurring)). Departure from precedent was
justified in Duran because the precedent failed to give full consideration to the
plain language of the statute and rendered other statutory language
superfluous. See id. at 154. Similar concerns are present here.
8
The Union argues that we should not disturb our construction of the
“internal personnel practices” exemption in Fenniman because the legislature
has not corrected our prior rulings by amending RSA 91-A:5, IV, and has
therefore tacitly endorsed Fenniman’s broad interpretation. However,
legislative inaction does not preclude us from revisiting our interpretation of a
statute in all circumstances. “Although stare decisis generally ‘has more force
in statutory analysis than in constitutional adjudication because, in the former
situation, [the legislature] can correct our mistakes through legislation,’ that is
not always the case.” Duran, 158 N.H. at 157 (quoting Monell, 436 U.S. at
695). “We are unwilling to mechanically apply the principles of stare decisis to
allow a decision that was wrong when it was decided perpetuate as a rule of
law.” Id. (citing Monell, 436 U.S. at 695). “Neither will we always place on the
shoulders of the legislature the burden to correct our own error.” Id.
The Union also argues that we should be particularly cautious of
overruling Fenniman because, during the last legislative session, the legislature
re-referred a bill to committee that seeks to categorize certain internal
disciplinary records of police departments as public records for purposes of the
Right-to-Know Law. We will not be deterred, however, from correcting an error
of our own creation because the legislature considered, but did not enact, a bill
relating to the same subject matter in a recent legislative session. Moreover,
we have no basis on which to conclude that any such legislation, if passed,
would address the situation presented by this case.
“When asked to reexamine a prior holding, our task is ‘to test the
consistency of overruling a prior decision with the ideal of the rule of law, and
to gauge the respective costs of reaffirming and overruling a prior case.’”
Quintero, 162 N.H. at 539 (quoting Casey, 505 U.S. at 854). Fenniman’s broad
interpretation of the “internal personnel practices” exemption substantially
undermines the guarantees protected by the Right-to-Know Law and reduces
its defining goals to lip service. “[S]uch an expansive construction would justify
the criticism that our act, although promising, is ‘weak and easily evaded.’”
Mans, 112 N.H. at 162 (quoting Thomas I. Emerson, The System of Freedom of
Expression, at 672 (1970)). The costs of overruling Fenniman’s interpretation
are insubstantial and heavily outweighed by the rewards. As stated by the
preamble of the Right-to-Know Law: “Openness in the conduct of public
business is essential to a democratic society.” RSA 91-A:1 (2013). An overly
broad construction of the “internal personnel practices” exemption has proven
to be an unwarranted constraint on a transparent government. For the
reasons stated above, we overrule Fenniman to the extent that it broadly
interpreted the “internal personnel practices” exemption and its progeny to the
extent that they relied on that broad interpretation.
9
C. The Arbitration Decision
Freed from the constraints imposed by Fenniman, we now consider the
proper scope of the “internal personnel practices” exemption and whether the
arbitration award at issue here is subject to that exemption. We conclude that
the exemption applies narrowly to records pertaining to internal rules and
practices governing an agency’s operations and employee relations.
Accordingly, the arbitration decision does not fall within the exemption. In
light of this conclusion, we need not decide in this case whether Fenniman
should also be overruled to the extent that it applied a per se rule, as opposed
to a balancing test, prohibiting the disclosure of records that fall under the
“internal personnel practices” exemption.
Together with Part I, Article 8 of our Constitution, the Right-to-Know Law
is the crown jewel of government transparency in New Hampshire. Part I,
Article 8 of the New Hampshire Constitution provides that:
All power residing originally in, and being derived from, the people,
all the magistrates and officers of government are their substitutes
and agents, and at all times accountable to them. Government,
therefore, should be open, accessible, accountable and responsive.
To that end, the public’s right of access to governmental
proceedings and records shall not be unreasonably restricted.
N.H. CONST. pt. I, art. 8.
The preamble of the Right-to-Know Law contains a similar principle,
stating, in part, that “[t]he purpose of this chapter is 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. The
purpose of the Right-to-Know Law is to “provide the utmost information to the
public about what its government is up to.” Goode, 148 N.H. at 555 (quotation
omitted). Accordingly, the statute furthers “our state constitutional
requirement that the public’s right of access to governmental proceedings and
records shall not be unreasonably restricted.” Clay, 169 N.H. at 685 (quotation
omitted). We therefore resolve questions regarding the Right-to-Know Law with
a view to providing the utmost information, broadly construing its provisions in
favor of disclosure and interpreting its exemptions restrictively. Id.; see also
Dept. of Air Force v. Rose, 425 U.S. 352, 361 (1976) (noting that FOIA
exemptions must be narrowly construed). For these reasons, a narrow
interpretation of the “internal personnel practices” exemption accords with our
constitution and the Right-to-Know Law’s underlying purpose.
“When interpreting a statute, we first look to the plain meaning of the
words used.” Reid, 169 N.H. at 522 (quotation omitted). Furthermore, we
often look to federal case law for guidance when interpreting the exemption
10
provisions of our Right-to-Know Law, because our provisions closely track the
language used in FOIA’s exemptions. Reid, 169 N.H. at 520.
“[T]he terms ‘internal’ and ‘personnel’ modify the word ‘practices,’ thereby
circumscribing the provision’s scope.” Id. at 522. As we explained in Reid,
relying on the Supreme Court’s interpretation of FOIA’s “internal personnel
rules and practices” exemption, known as Exemption 2, “personnel” in this
context “‘refers to human resources matters.’” Id. (quoting Milner v.
Department of Navy, 562 U.S. 562, 569 (2011)). “Internal” means “existing or
situated within the limits of something.” Reid, 169 N.H. at 523 (quotation and
ellipsis omitted). Therefore, in Reid we construed “internal personnel practices”
“to mean practices that exist or are situated within the limits of employment.”3
Id. (quotation and brackets omitted). The Supreme Court has further
explained that Exemption 2 relates to records that an agency “must typically
keep . . . to itself for its own use.” Milner, 562 U.S. at 570-71 n.4. “[T]he
general thrust of the exemption is simply to relieve agencies of the burden of
assembling and maintaining for public inspection matter in which the public
could not reasonably be expected to have an interest.” Rose, 425 U.S. at 369-
70. Thus, Exemption 2 concerns an agency’s “rules and practices dealing with
employee relations or human resources,” including “such matters as hiring and
firing, work rules and discipline, compensation and benefits.” Milner, 562 U.S.
at 570. Examples of practices falling within Exemption 2 include “personnel’s
use of parking facilities or regulations of lunch hours, statements of policy as
to sick leave, and the like.” Rose, 425 U.S. at 363 (quotation omitted).
Pursuant to its interpretation of Exemption 2, in Rose, the Supreme
Court held that one-page case summaries of honor and ethics hearings
maintained by the United States Air Force did not fall within the exemption.
Id. at 369-70. The Court reasoned, in part, that the case summaries did “not
concern only routine matters” of “merely internal significance.” Id. at 370.
Similarly, in Milner, 562 U.S. at 572, the Court held that data and maps which
helped store explosives at a naval base were not subject to Exemption 2
because they did not concern “workplace rules” or the “treatment of
employees.”
Using Reid and the Supreme Court’s interpretation of FOIA as our
lodestars, we conclude that the “internal personnel practices” exemption was
intended to apply only to records pertaining to the internal rules and practices
governing an agency’s operations and employee relations, not information
concerning the performance of a particular employee. See Milner, 562 U.S. at
569-70; Rose, 425 U.S. at 363; Reid, 169 N.H. at 523. As we have explained
3
In Reid, we remained bound by Fenniman’s construction of “internal personnel practices” as
extending to investigations into employee misconduct, and therefore our analysis in that case
could not further limit the construction of “internal personnel practices.” See Reid, 169 N.H. at
523.
11
above, this narrow interpretation is consonant with our constitution and the
purpose of the Right-to-Know Law.
Furthermore, our narrow interpretation recognizes the legislature’s
decision to enact a separate exemption for “personnel, medical, . . . and other
files.” RSA 91-A:5, IV; see Reid, 169 N.H. at 520. We interpret a statute in the
context of the entire statutory scheme, N.H. Right to Life v. Dir., N.H.
Charitable Trusts Unit, 169 N.H. 95, 103 (2016), and the legislature is
presumed not to use superfluous language, Duran, 158 N.H. at 155.
Like the exemption for personnel files in RSA 91-A:5, IV, FOIA contains
an exemption, known as Exemption 6, for “personnel and medical files and
similar files.” 5 U.S.C. § 552(b)(6) (2018). As the Supreme Court has
explained, Exemption 6 shields from disclosure, in certain circumstances, an
employee’s “personnel file: showing, for example, where he was born, the
names of his parents, where he has lived from time to time, his high school or
other school records, results of examinations, [and] evaluations of his work
performance.” Rose, 425 U.S. at 377. Simply put, Exemption 6 protects
employee files which are “typically maintained in the human resources office —
otherwise known . . . as the ‘personnel department.’” Milner, 562 U.S. at 570.
We conclude that records documenting the history or performance of a
particular employee fall within the exemption for personnel files. See RSA 91-
A:5, IV; Rose, 425 U.S. at 377. Such records pertain to an employee’s work
performance and are therefore typically maintained by the personnel
department. See Milner, 562 U.S. at 570; Rose, 425 U.S. at 377. Records
relating to internal policies pertaining to an agency’s operations and employee
relations, on the other hand, would not be maintained in an employee’s
personnel file. Thus, narrowly interpreting the exemption for “internal
personnel practices” gives full effect to both exemptions that the legislature
chose to enact. See Shapiro v. U.S. Dept. of Justice, 153 F. Supp. 3d 253, 280
(D.D.C. 2016) (commenting that “Exemption 6 . . . would have little purpose if
agencies could simply invoke Exemption 2 to protect any records that are used
only for ‘personnel’-related purposes”).
Applying this interpretation to the arbitration decision at issue here, we
conclude that the decision does not fall within the “internal personnel
practices” exemption. The decision does not relate to the personnel rules or
practices of the City of Portsmouth. See Rose, 425 U.S. at 363 (listing use of
parking facilities, regulation of lunch hours, and statements of policy regarding
sick leave as examples of internal personnel practices); Shapiro, 153 F. Supp.
3d at 281 (holding that Federal Bureau of Investigation FOIA request
evaluation forms did not come within Exemption 2 because, in part, they did
not “relate solely to trivial or minor matters, akin to the use of parking facilities
or lunch hours”); cf. Rojas v. F.A.A., 941 F.3d 392, 402 (9th Cir. 2019) (holding
that “rules and practices for scoring tests relating to the selection of employees”
12
fell within Exemption 2). Rather, the arbitration and the consequent decision
are products of the application of those rules and practices and, because the
decision relates to the conduct of a specific employee, it would be the type of
information preserved in an employee’s personnel file. See Rose, 425 U.S. at
363; see also Vaughn v. Rosen, 523 F.2d 1136, 1139, 1143 (D.C. Cir. 1975)
(concluding that reports evaluating how federal agencies’ managers and
supervisors carry out their personnel management responsibilities were not
subject to Exemption 2 because, in part, they “deal with the compliance of
federal agencies with policies”).
Given that the trial court applied the “internal personnel practices”
exemption as interpreted in Fenniman, it had no need to determine whether
the decision was exempt from disclosure because it is a “personnel . . . file[ ].”
RSA 91-A:5, IV. Accordingly, we remand this issue to the trial court for its
consideration, in the first instance, as to whether the arbitration decision
arising from the grievance provision of the collective bargaining agreement is
exempt from disclosure pursuant to the two-part analysis for personnel files.
To that end, the trial court must determine: “(1) whether the material can be
considered a ‘personnel file’ or part of a ‘personnel file’; and (2) whether
disclosure of the material would constitute an invasion of privacy.” Reid, 169
N.H. at 527. We provided extensive guidance in Reid as to that analysis, and
need not elaborate further on it here. See id. at 527-33.
D. Attorney’s Fees
Finally, Seacoast has renewed the request it made to the trial court for
attorney’s fees. To award attorney’s fees for a violation of the Right-to-Know
Law, “the trial court must find that the petitioner’s lawsuit was necessary to
make the requested information available and that the [City] knew or should
have known that its conduct violated the statute.” Goode, 148 N.H. at 558
(quotation omitted). The City argues that, although it may agree with Seacoast
that the arbitration award should be disclosed, the Union had a colorable
argument that releasing the award would violate RSA 91-A:5, IV. We agree
with the City. As the City points out, the trial court found the Union’s
argument more than colorable. In light of Fenniman, we can hardly conclude
that the City “should have known” that refusing to disclose the arbitration
award violated the Right-to-Know Law. Therefore, Seacoast’s request for
attorney’s fees is denied.
IV. Conclusion
For the foregoing reasons, we vacate the trial court’s finding that the
arbitration award is exempt from disclosure under the “internal personnel
practices” exemption and remand to the trial court for further proceedings
13
consistent with this opinion. We also deny Seacoast’s request for attorney’s
fees.
Vacated and remanded.
HICKS and BASSETT, JJ., concurred; HANTZ MARCONI, J., concurred
in part and dissented in part.
HANTZ MARCONI, J., concurring in part and dissenting in part. I agree
with my colleagues that the arbitration decision in this case is not a record
pertaining to “internal personnel practices,” and, therefore, does not fall under
the “internal personnel practices” exemption to the Right-to-Know Law. See
RSA 91-A:5, IV (2013). I also agree with my colleagues that this case should be
remanded so that the trial court may consider whether, or to what extent, the
arbitration decision at issue is exempt from disclosure under the exemption for
personnel files. See id. I write separately because I believe that to reach this
result, it is unnecessary to consider whether to overrule Union Leader Corp. v.
Fenniman, 136 N.H. 624 (1993). I believe that, as a matter of law, the
arbitration decision at issue does not fall within the “internal personnel
practices” exemption to the Right-to-Know Law as interpreted in Fenniman.
Thus, I concur in the result my colleagues reach, but write separately because I
disagree with their reasoning. To the extent that my colleagues have overruled
Fenniman, I dissent for the reasons set forth in my dissent in Union Leader
Corp. v. Town of Salem, 173 N.H. ___, ___ (decided May 29, 2020) (Hantz
Marconi, J., dissenting) (slip op. at 11-16).
Fenniman concerned a petition by Union Leader Corporation for access
to documents compiled during an internal investigation of a police lieutenant
accused of making harassing phone calls. Fenniman, 136 N.H. at 625. The
police department released information including the lieutenant’s name and
the results of the investigation, but withheld “memoranda and other records
compiled during the investigation.” Id. at 625-26. We held that the withheld
records pertained to “internal personnel practices” because “they document
procedures leading up to internal personnel discipline, a quintessential
example of an internal personnel practice.” Id. at 626 (quotation omitted). We
also decided that the balancing test we had applied “to judge whether the
benefits of nondisclosure outweigh the benefits of disclosure” was
“inappropriate where, as here, the legislature has plainly made its own
determination that certain documents are categorically exempt” from
disclosure under the Right-to-Know Law. Id. at 627.
In Fenniman, we noted that, at the same time that the legislature was
“overhauling RSA chapter 91-A into its modern form,” it was also “considering
passage of what is now RSA 516:36, II,” which provides that records pertaining
to internal investigations of “any officer, employee, or agent” of a state or local
law enforcement agency are inadmissible in any civil action “other than in a
disciplinary action between the agency” and the officer, employee, or agent. Id.
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at 626; see RSA 516:36, II (2007). We also observed that when considering
passage of what is now RSA 516:36, II, the legislature had apparently assumed
“that RSA chapter 91-A exempted police internal investigatory files from public
disclosure.” Fenniman, 136 N.H. at 627.
We next addressed the interplay between RSA 516:36, II and the
exemption for “internal personnel practices” under the Right-to-Know Law in
Pivero v. Largy, 143 N.H. 187 (1998). In that case, a police officer sought a
copy of an internal investigative file that related to him. Pivero, 143 N.H. at
188. To decide the case, we considered RSA 516:36, II and Fenniman, in
addition to other statutes not relevant to the instant matter. Id. at 189-92.
We explained that “[u]ntil an internal investigation produces information that
results in the initiation of disciplinary process, public policy requires that
internal investigation files remain confidential and separate from personnel
files.” Id. at 191 (citations omitted). We further explained that “these policy
considerations include instilling confidence in the public to report, without fear
of reprisal, incidents of police misconduct to internal affairs” as well as the
need not to “seriously hinder an ongoing investigation or future law
enforcement efforts.” Id.
Fenniman focused upon exempting from disclosure records documenting
“the procedures leading up to internal personnel discipline.” Fenniman, 136
N.H. at 626. That remained our focus in Hounsell v. North Conway Water
Precinct, 154 N.H. 1 (2006). At issue in that case was a report prepared by
individuals who had been retained by counsel for the North Conway Water
Precinct (Precinct) to investigate an employee’s complaint of co-worker
harassment. Hounsell, 154 N.H. at 2. The report summarized the
investigation and made findings and recommendations. Id. We upheld the
trial court’s determination that the report was exempt from disclosure under
the Right-to-Know Law because, similar to the documents in Fenniman, the
report concerned an investigation that “could have resulted in disciplinary
action.” Id. at 4. Although we recognized that the report was not part of an
internal police investigation, such as the report in Fenniman, we explained that
its disclosure would implicate “policy concerns similar to those underlying the
disclosure of an internal police investigatory file.” Id. at 5 (quotation omitted).
As the Precinct in Hounsell had argued, “the disclosure of records underlying,
or arising from, internal personnel investigations would deter the reporting of
misconduct by public employees, or participation in such investigations for fear
of public embarrassment, humiliation, or even retaliation.” Id.
In Clay, we expanded Fenniman to address records documenting
procedures leading to an employer’s hiring decision, but did not disturb
Fenniman’s central holding or the policy concerns underlying it. Clay v. City of
Dover, 169 N.H. 681 (2017). Although we had previously criticized Fenniman,
see Reid v. N.H. Attorney General, 169 N.H. 509, 519-22 (2016), in Clay we
confirmed that it remained good law. Clay, 169 N.H. at 687.
15
The arbitration decision at issue in the instant matter does not meet the
Fenniman definition of records pertaining to “internal personnel practices.”
Unlike the records in Fenniman and Hounsell, the arbitration decision was
rendered after internal discipline had already been meted out. The police
officer in this case was terminated from employment in 2015; the arbitration
decision was not issued until 2018. Accordingly, the arbitration decision,
unlike the records in Fenniman and Hounsell, does not document procedures
“leading up to internal personnel discipline,” Fenniman, 136 N.H. at 626, but
rather constitutes the review of the discipline after it was imposed.
Moreover, disclosure of the arbitration decision in this case does not
implicate the same policy concerns underlying our decision in Fenniman. See
Pivero, 143 N.H. at 191; Hounsell, 154 N.H. at 5. Rather, disclosure of the
arbitration decision implicates different policy considerations because it is part
of an employee grievance proceeding, considerations that may be more
appropriately addressed under the exemption for personnel files.
Because I believe that the arbitration decision does not fall within the
“internal personnel practices” exemption, as construed in Fenniman and its
progeny, I see no reason to consider, in this case, whether to overrule that line
of cases. Nor do I believe, for the reasons set forth in my dissent in Union
Leader Corp. v. Town of Salem, that our established stare decisis factors
compel overruling Fenniman and its progeny. See Union Leader Corp., 173
N.H. at ____ (Hantz Marconi, J., dissenting) (slip op. at 11-16).
Although I would not overrule Fenniman in this case, to the extent that
the Fenniman definition of “internal personnel practices” has been overruled
and a new, narrower definition has been adopted, I agree with my colleagues
that the arbitration decision at issue fails to meet that new definition as a
matter of law. Like my colleagues, I would remand for the trial court to
consider, in the first instance, whether the arbitration decision is exempt from
disclosure pursuant to the two-part analysis for personnel files. See Reid, 169
N.H. at 527-33.
16