New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Superior court orders disclosure of complaints about school board member’s conduct at school sporting events

Conway Daily Sun v. Conway School District
Carroll County Superior Court, No. 212-2011-CV-257, 1/30/2012

The following summary is based on a decision of the Carroll County Superior Court. Please note that (a) superior court opinions are not binding on the New Hampshire Supreme Court, and (b) at the time this summary went to print, it was still possible for this decision to be appealed to the New Hampshire Supreme Court.

The plaintiff newspaper submitted a request to the School District under the Right to Know Law, RSA 91-A, for copies of any correspondence received by the District addressing “inappropriate behavior” by school board member Randy Davison. It was undisputed that the District had received written complaints about Davison’s conduct at school district sporting events. However, the District, exercising caution, declined to release such documents on the ground that, because Davison was also a parent of a pupil participating in the sporting events, release of the documents might constitute an invasion of privacy under RSA 91-A:5. The newspaper sued in order to obtain the documents.

The court analyzed the situation under the three-part test set forth in Lamy v. N.H. Public Utilities Commission, I52 N.H. 106, 109 (2005), to balance the public interest in disclosure with any governmental interest in nondisclosure and the individual’s right to privacy:

First, we evaluate whether there is a privacy interest at stake that would be invaded by the disclosure. If no privacy interest is at stake, the Right-to-Know Law mandates disclosure. Next, we assess the public’s interest in disclosure. Disclosure of the requested information should inform the public about the conduct and activities of their government. Finally, we balance the public interest in disclosure against the government interest in nondisclosure and the individual’s privacy interest in nondisclosure.

A heavy burden of proof is on the party resisting disclosure. Quoting Lambert v. Belknap Cty. Convention, I57 N.H. 375, 383-84 (2008), the court observed that “[p]ublic officials must recognize their official capacities often expose their private lives to public scrutiny.” The court reviewed the documents in question in camera, that is, without disclosing them to the parties. An important factor in the balancing test is whether the government body simply received and stored the documents in question, in which case disclosure would not reveal much about the activities of the government. In this case, the records showed that the information was shared and discussed by administrators, resulting in discussions directly with Mr. Davison. These were government activities that tipped the balance in favor of disclosure. However, the court also determined that a good deal of information must be redacted (edited by crossing out) in order to protect the privacy rights of students under the Right to Know Law and the federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. Sec. 1232g.

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