When the New Hampshire Civil Liberties Union (NHCLU) learned that the Manchester Police Department routinely photographed people stopped by the police but not arrested, it requested access to the photographs and information about the department’s practice. The city denied the request claiming that it would interfere with and reveal investigative techniques.
The NHCLU petitioned the superior court for disclosure of the photographs. The court granted the petition and ordered the city to provide access to the photographs. The city appealed, arguing that releasing the photographs would be an unwarranted invasion of privacy of the people photographed.
In its opinion, the Court noted that under RSA 91-A:5, IV, the government can deny access to records “whose disclosure would constitute invasion of privacy.” The Court explained the three-step approach it follows in analyzing disclosure and invasion of privacy issues:
- Is there a privacy interest that would be invaded by disclosure?
- Is there a public interest in disclosure?
- Does the public interest in disclosure outweigh the government’s interest in nondisclosure and the individual’s interest in nondisclosure?
In denying a Right to Know Law request based on invasion of privacy, the government must show that the information sought “will not inform the public about the [government’s] activities, or that a valid privacy interest, on balance, outweighs the public interest in disclosure.”
The privacy interest asserted by the city was the individuals’ interest in “not being associated unwarrantedly with alleged criminal activity.” The Court said, however, that the city’s assertion wasn’t relevant because the photographs were taken with the consent of the people stopped, that the superior court had specifically exempted from disclosure photographs that were part of police investigations, that no inference about the individuals’ involvement with a crime could logically be drawn from the pictures and that no personal identifying information, such as name, address or date of birth, would be provided. The Court said any privacy interest at stake in disclosure of the photographs is minimal because they do not reveal “intimate details of an individual’s life.” The Court also noted that the photographs would be “disclosed as a large group for statistical analysis only, and not for individual publication or dissemination.”
In analyzing the public’s interest in disclosure, the Court said it must “assess what disclosure … demonstrates about governmental conduct.” The NHCLU argued that disclosure of the photographs could demonstrate the police department’s race or gender-based patterns regarding the people it chose to stop. The Court agreed. Citing previous cases, the Court said, “Official information that sheds light on an agency’s performance of its statutory duties falls squarely within the statutory purpose of the Right to Know Law.”
The final step in the analysis is balancing the public’s interest in disclosure against the government’s and the individuals’ interests in nondisclosure. Because the Right to Know Law “places emphasis on the fullest responsible disclosure,” the Court said the city had failed its heavy burden of “shifting the balance toward nondisclosure in this case.” The privacy interest in the photographs did not outweigh the public’s interest in disclosure.