New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Disclosure exemption for law enforcement records applies to agencies other than traditional law enforcement agencies

38 Endicott Street North, LLC v. State Fire Marshal
No. 2011-502, 5/22/2012

This case is an interesting development in the treatment of “law enforcement records” for purposes of public disclosure under RSA Chapter 91-A, the Right to Know Law. RSA 91-A does not specifically address law enforcement records, and since 1978 New Hampshire courts have analyzed requests for disclosure using the test applied under exemption 7 of the federal Freedom of Information Act (FOIA), known as the Murray exemption. Murray v. NH Div. of State Police, 154 N.H. 579 (2006). To be considered confidential, (1) records or information must be compiled for law enforcement purposes, and (2) releasing the information would have one of six listed adverse consequences on law enforcement activity.

What is different about this case is that it did not involve traditional law enforcement records, but those of the State Fire Marshal’s Office (FMO). The Court concluded that the exemption may apply to records compiled by any type of agency, even if its primary function is not law enforcement. “The phrase ‘law enforcement purposes’ includes both civil and criminal matters.” The difference is that an agency which is primarily a law enforcement agency (such as a police department) usually does not have a high burden of proof regarding the “law enforcement purpose” of the records. On the other hand, a mixed-function agency with some administrative and some law enforcement purposes must satisfy a higher burden, demonstrating that it had a purpose falling within its sphere of enforcement authority in compiling the particular documents.

The Court examined the FMO’s statutory duties and found that it is a mixed-function agency. Its duties under RSA Chapter 153 include some law enforcement functions, such as enforcing laws relative to the protection of life and property from fire, fire hazards and related matters; reporting on all fires and optionally submitting findings of fact to the state police, county attorney or local officials to assist him in arrest or prosecution; and supervising and enforcing local bylaws regarding fire prevention and safety. As a mixed-function agency, the FMO had to show the records were compiled pursuant to its law enforcement functions, as opposed to its administrative functions. In this case, the records were created during an investigation into potential criminal wrongdoing pursuant to the FMO’s law enforcement duties, and, therefore, were compiled for “law enforcement purposes.”

The next step was to determine whether the records fell within any of the six FOIA factors and could be kept confidential. This case involved the first factor, “interference with enforcement proceedings.” The agency must show that enforcement proceedings are pending or reasonably anticipated, and that disclosure of the requested documents could reasonably be expected to interfere with those proceedings. Interestingly, the agency is not required to explain when, where or by whom charges might arise, or even require that law enforcement proceedings be a certainty. It merely requires the agency to demonstrate that proceedings are “reasonably anticipated.” The FMO met this test.

This decision raises the possibility that records of other mixed-function agencies may be similarly exempt from disclosure under RSA 91-A. For example, many municipal officials and departments have some variety of civil or criminal investigation and enforcement authority, whether on their own or in conjunction with the local police or county attorney. It remains to be seen how far this opinion may extend.

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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