The “Internal Personnel Practices” Exemption Under RSA 91-A:5, IV Only Applies to Records of the Internal Rules and Practices Governing an Agency’s Operations and Employee Relations, and Not Information Concerning the Performance of a Particular Employee.

Seacoast Newspapers v. Portsmouth
New Hampshire Supreme Court Docket No. 2019-0135
Friday, May 29, 2020

The NH Supreme Court overruled its decision in Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993) to the extent that decision too broadly interpreted the “internal personnel practices” exemption under RSA 91-A:5, IV.  In Fenniman the Court had ruled that under the “internal personnel practices” exemption a public agency’s records concerning the internal discipline of an employee were categorically exempt from disclosure. The Court has now concluded that the “internal personnel practices” exemption only applies to a narrow set of governmental records pertaining to an agency’s internal rules and practices governing operations and employee relations.  

This matter came before the Court on appeal from a Superior Court decision that denied public access to an arbitration ruling concerning the dismissal of a Portsmouth police office.  The Superior Court relied on Fenniman when it declared the arbitration ruling exempt from disclosure.  Reviewing the language of RSA 91-A:5, IV, and considering past rulings and decisions by the federal courts, the Supreme Court has narrowed the interpretation of “internal personnel practices.”  Henceforth, the “internal personnel practices” exemption only applies to records pertaining to the internal rules and practices governing an agency’s operations and employee relations, and not information concerning the performance of a particular employee.  By way of comparison a similar internal personnel practices exemption under the federal Freedom of Information Act, the phrase  refers to rules and practices dealing with employee relations or human resources, including such matters as hiring and firing, work rules and discipline, compensation and benefits, regulation of lunch hours, and statements of policy as to sick leave. 

Because records pertaining to an employee’s work performance or discipline are typically maintained in a personnel file, on remand the Court has directed the Superior Court to determine whether the arbitration decision should be disclosed based upon a different clause in RSA 91-A:5, IV, “personnel . . . files whose disclosure would constitute invasion of privacy.”  The Court concluded that records documenting the history or performance of a particular employee fall within the exemption for personnel files.  To that end, the Superior Court must now determine: (1) whether the material can be considered a ‘personnel file’ or part of a ‘personnel file’; and (2) whether disclosure of the material would constitute an invasion of privacy.  This will require the Superior Court to determine whether the arbitration decision is, or is contained in, a personnel file. If not, the “personnel … files” exemption does not apply. Reid v. N.H. AG, 169 N.H. 509, 528 (2016).  If the arbitration decision is part of the officer’s personnel file, then whether the disclosure would constitute an invasion of privacy would be based upon the well-established three-step analysis:

First, 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.

Second, 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, balance the public interest in disclosure against the government's interest in nondisclosure and the individual's privacy interest in nondisclosure. Reid v. N.H. AG, 169 N.H. 509, 528-29 (2016).


Additional Information: 

Practice Pointer:  Records that document disciplinary matters involving a municipal employee that are made part of the employee’s personnel file may be exempt from disclosure if that disclosure would invade a protected privacy interest of the employee and that disclosure does not inform the public about the conduct and activities of their government.  However, if the disciplinary record would not invade a protected privacy interest of the employee, or, where the public interest in the disciplinary record outweighs the privacy interest of the employee, then the record must be disclosed.  Since an administrative rule issued by the NH Department of Labor, NH Admin Rule Lab 802.08, states that “Personnel File” is defined as personnel records created and maintained by an employer and pertaining to an employee including and not limited to disciplinary documentation, it would be the better practice to keep and maintain all records concerning performance evaluations and disciplinary documents in an employee’s personnel file.