Individuals have a significant privacy interest in their interactions with law enforcement. When it comes to release of these records pursuant to a Right-to-Know request, make sure to evaluate all of the information contained within the records for a potential privacy interest and weigh the specific information against any compelling public interest.
Petitioner Laurie Ortolano filed a Right-to-Know request seeking the release of several documents including transcripts of police interviews and video surveillance footage. The City of Nashua declined to produce the video footage and transcripts of witness interviews under the privacy exemption contained within RSA 91-A and the FOIA standards. At trial, the court ruled that the documents were public record, without conducting an in-camera review of the content of said documents, and found that the City violated RSA 91-A as they knew or should have known that the documents were public record under RSA 91-A. The City appealed this decision, as well as the issuance of attorneys fees.
The Supreme Court of New Hampshire reviewed the trial court’s ruling and made a few important rulings. First, the court recognized that individuals have a strong privacy interest in their interactions with law enforcement. The release of video footage or transcripts of police interviews can subject a person to embarrassment or loss of reputation in the community. Consequently, governmental records depicting an individuals interaction with law enforcement are subject to a privacy redaction or exemption and must be evaluated under the public v. private balancing test. Here, the trial court summarily ruled that the public had a compelling interest in the release of these records without reviewing the content of said records and evaluating how significant of a privacy concern existed. Without review, the court had no way of concluding that the public’s interest outweighed a potential privacy interest. Therefore, the case was remanded back to the trial court.
The petitioner also argued that any privacy interest was waived when partial information about the police interviews was released through other records. The court disagreed and ruled that partial release of potentially private information does not effectively extinguish all privacy interests. Based on these rulings, the court also reversed the award of attorneys fees until the lower court did a more thorough evaluation of the content of the requested documents.
READ MORE IN COURT DECISION!
Practice Pointer: It is well established that potentially private information is subject to the private v. public balancing test. Here, the Supreme Court has reiterated the importance of engaging in that balancing test, especially given the heightened privacy interest individuals have with regards to interactions with law enforcement. However, it is vital that municipalities actually review and evaluate the specific content of these records and make an educated determination about the weight of the privacy interest, and not simply quote the standard without looking at the records themselves.