New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Names, Addresses Are Exempt from Disclosure When Release Would Not Shed Light on Government Activity

Lamy v. New Hampshire Public Utilities Commission
No. 2004-343, 4/11/2005

Under the Right to Know Law, the plaintiff requested copies of voltage complaint reports, which contained the names and street addresses of residential and business customers of Public Service of New Hampshire (PSNH). The Public Utilities Commission (PUC) disclosed the reports, but first redacted the names and addresses of PSNH's complaining customers, although the town of each complaining customer was discernable. The plaintiff sought a court order compelling the PUC to make the unredacted reports available, and the trial court granted his request. The trial court held that disclosing the names and addresses was not an invasion of privacy and, therefore, the information was not exempt from disclosure under RSA 91-A:5, IV. The PUC appealed, arguing that the trial court improperly weighed the competing interests involved in determining whether disclosing the names and addresses would be an invasion of privacy. Quoting from an earlier case, the Court said the invasion of privacy section of the Right to Know Law “means that financial information and personnel files and other information necessary to an individual's privacy need not be disclosed.” Invasion of privacy determinations require a three-step analysis: 1) whether there is a privacy interest at stake that would be invaded by disclosure; 2) the public's interest in disclosure; 3) balancing the public's interest in disclosure against the government interest in nondisclosure and the individual's privacy interest in nondisclosure. “The party resisting disclosure [in this case, the PUC] bears a heavy burden to shift the balance towards nondisclosure.” The Court held that the PUC met this heavy burden regarding the names and addresses of residential customers, but did not regarding business customers. The PUC argued that PSNH's business customers have a privacy interest in nondisclosure because they were likely unaware that their communications with PSNH would be disclosed as public records. However, previous cases have held that determining whether a privacy interest is at stake is based on an objective standard, not on the person's subjective expectations. Therefore, absent further evidence, the Court held that the PUC failed to meet its burden that a privacy interest was at stake in the disclosure of names and addresses of PSNH's business customers. As to the privacy interest of PSNH's residential customers, the Court had previously held that “disclosing a person's name and address implicates that person's privacy rights because the disclosure serves as a conduit into the sanctuary of the home.” The Court said that the privacy interest in names and addresses is weaker than if names and addresses were associated with other private information, such as financial information. The Court sought guidance from federal court decisions because New Hampshire's Right to Know Law is similar to the federal Freedom of Information Act. Citing a decision of the Court of Appeals for the First Circuit, the Court wrote that “there is only a modest privacy interest assigned to an individual's bare name and home address.” Noting that home addresses are often publicly available, the Court relied on the U.S. Supreme Court's recognition “that individuals have some nontrivial privacy interest in avoiding the influx of unwanted, unsolicited mail or the telephone calls and visits that could follow from disclosure of their names and home addresses.” The Right to Know Law gives any member of the public, including commercial advertisers and solicitors, as much right to disclosure as one with a special interest in a particular document, the Court wrote, making it “clear that the individual privacy interest that would be protected by nondisclosure is far from insignificant.” Since the residential customers have a privacy interest at stake in the disclosure of their names and home addresses, the Court next considered the public interest in such disclosure. If the disclosure of such private information does not “provide the utmost information about what the government is up to,” disclosure is not warranted, the Court wrote, “even though the public may nonetheless prefer, albeit for other reasons, that the information be released.” The Court found that disclosure of the names and home addresses would not “reveal anything about the PUC's own conduct.” The names and addresses would tell the public who submitted voltage complaints and where the voltage problems occurred, the Court said, but would not tell the public whether or how the PUC investigated PSNH's response to such complaints. The plaintiff or others hoped to use the information to obtain additional information outside the PUC files, the Court wrote. “This kind of public interest has been termed ‘derivative use.'” Federal appeals courts construing the Freedom of Information Act disagree about whether derivative use of information is a “cognizable public interest,” but even those that do “acknowledge that this interest carries little weight,” the Court said. “[W]e avoid any categorical rule that would exclude the derivative use of requested information from consideration,” the Court wrote, adding, “When the sole public interest in disclosing the information is only tangentially related to the central purpose of the Right to Know Law, we decline to accord it great weight.” The Court said, “Although there might be some public interest in knowing the names and addresses of residential customers who filed voltage complaints with PSNH, the central purpose of the Right to Know Law is to ensure that the [g]overnment's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the [g]overnment be so disclosed.” The Court found that the public interest in disclosing names and addresses of residential PSNH customers “so that they may be contacted at home does not outweigh their privacy interest in not being disturbed at home.” The plaintiff could use less intrusive means of contacting customers, including advertising, the Court said, adding that the plaintiff did not show how disclosing the names and addresses would contribute to assessing the PUC's investigation of PSNH's response to the voltage complaints.

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.

< Back to Court Update Home