New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

FOIA test applies for all law enforcement records under RSA 91-A

Montenegro v. Dover
No. 2010-412, 11/2/2011

This case under RSA Chapter 91-A involves law enforcement records, which are not directly addressed in the Right to Know Law. The plaintiff requested a variety of documents relating to video surveillance equipment and operations by the City police department, including the locations of all equipment, the recording capacities of each piece of equipment, the time periods the equipment was operated, the retention time for any recordings, and the job titles of the people monitoring the equipment.

Since 1978, New Hampshire courts have applied the test used in the federal Freedom of Information Act (FOIA) to analyze requests for law enforcement documents under RSA 91-A. Although the plaintiff argued that the FOIA test was only for use with records created in connection with “investigation or prosecution” activities, the Court rejected that argument. Instead, it established that the six-prong test should be used to analyze any records compiled for law enforcement purposes, and a record that satisfies any one of the prongs is exempt from disclosure. In particular, the Court found that all of the requested records (except the job titles of the people monitoring the surveillance equipment) were exempt from disclosure under RSA 91-A because they met three of the six FOIA factors: disclosure of the records could reasonably be expected to interfere with enforcement proceedings, would disclose techniques and procedures for law enforcement investigations or prosecutions and/or risk circumvention of the law, and could reasonably be expected to endanger the life or physical safety of any individual.

The Court was also asked to determine whether the job titles of the people monitoring the equipment were confidential as records pertaining to “internal personnel practices” under RSA 91-A:5, IV. In previous opinions, the Court had only applied that exemption to records related to internal personnel discipline, “a quintessential example of an internal personnel practice.” The exemption also covered records related to such matters as hiring and firing, work rules and discipline. Since the job titles of those performing a specific task were unrelated to any of those things, they were not exempt and had to be disclosed.

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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