New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

How to Do It Right: Superior Court Upholds Town’s Response to Right to Know Request

Healy v. Warner. Board of Selectmen, Merrimack County Superior Court
Docket No. 08-E-0259, 9/10/2008

In a case illustrating the use of proper procedures, the Merrimack County Superior Court upheld the Warner Board of Selectmen’s response to a request for information under New Hampshire’s Right to Know Law, RSA Chapter 91-A.

In 2007, the Board of Selectmen hired employees to fill two positions. During the process, the Board met in at least two non-public sessions to consider multiple candidates. More than a year after the positions were filled, a citizen concerned about age discrimination submitted two requests to the Town under RSA 91-A:4, asking for the name, address, listed telephone number and resume of each candidate for the two positions. The request also included copies of all minutes and recordings of the meetings at which the Board discussed the candidates and copies of job descriptions for each position. The Town Administrator responded in writing within five business days to each request explaining that the records were either available in the Town offices, no longer existed or were exempt from disclosure. Dissatisfied, the citizen and several other petitioners filed suit in the superior court.

Governmental records must be made available to the public upon request unless they are exempt from disclosure under RSA 91-A:5 or elsewhere in the law. RSA 91-A:4. Under RSA 91-A:5, IV, records are exempt if they are records regarding “… personnel …and other files whose disclosure would constitute invasion of privacy.” The Court analyzed the request for the name, address, telephone number and resume of the candidates under this section, following the New Hampshire Supreme Court’s opinions in Union Leader Corp. v. NH Housing Finance Authority, 142 N.H. 540 (1997) and Lamy v. NH Public Utilities Commission, 152 N.H. 106 (2005).

Courts use a three-part test to determine whether disclosure of public records constitutes an invasion of privacy under RSA 91-A:5, IV. First, the Court evaluates whether there is a privacy interest at stake that would be invaded by the disclosure. If there is, the Court determines the public’s interest in the disclosure (that is, whether the information will tell the public anything about what the government is up to). Finally, the Court balances the public interest in disclosure against the individual’s privacy interest and the government’s interest in nondisclosure.

In this case, the Court found (following reasoning in the Lamy case) that job applicants have a modest privacy interest in their names, home addresses and telephone numbers, even though this information may be available through other channels. Going further, the Court noted that information on resumes regarding education and work history is not often publicly available, and concluded that applicants have an even greater privacy interest in this information than they do in their names, addresses and telephone numbers. In contrast, the Court determined that the information was unlikely to allow the petitioners to determine whether age discrimination had occurred. Since disclosure of the applicants’ personal information was unlikely to provide concrete insight into the Board’s actions, the Court concluded that the applicants’ privacy interest outweighed the public’s interest, and that the information was exempt from disclosure.

The Court also decided that the Town had responded appropriately to the requests for minutes of the nonpublic sessions and the written job descriptions. The Board did not seal the minutes of the nonpublic sessions, and made them available during normal business hours at the Selectmen’s Office within 72 hours after each meeting, which the Court found fulfilled the requirements of RSA 91-A:3, III. In addition, it was acceptable for the Town Administrator to inform the petitioner that the job descriptions were available for review in the Selectmen’s Office, stating that “RSA 91-A:4 does not require towns to provide copies of public records to citizens; it requires only that the records be available for review and reproduction.”

Finally, the Board had a regular policy and practice of keeping tape recordings of meetings for six months before erasing them so that the tapes could be reused. The petitioner did not request copies of the tapes until more than a year after the meetings. Following Brent v. Pacquette, 132 N.H. 415 (1989), the Court found that this policy was legal and that the Board had done nothing wrong in erasing the tapes in accordance with the policy.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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