Government Need Only Establish that Disclosure of a Law Enforcement Record Might Risk Circumvention of the Law; in the Right Circumstances Trial Court Review of Right-to-Know Record Disclosure can Occur in an Ex-Parte In Camera Hearing.

ACLU v. City of Concord
New Hampshire Supreme Court Case No. 2020-0036
Tuesday, December 7, 2021

The City of Concord adopted a budget that contained a police department line item for “Convert Communications Equipment.”  When asked to disclose the nature of the equipment the City Manager only revealed it was not body cameras or drones but refused to answer the question. Both the ACLU and the Concord Monitor submitted Right-to-Know Law requests seeking any information describing the equipment, and all contract agreements between the City and the vendor.  The City responded by providing a redacted version of a License and Service agreement.  Those redactions included the name of the vendor, the type of information gathered by the vendor and how the vendor uses the information. The City asserted that the redactions were necessary because the agreement contained confidential information about surveillance technology that was an exempt law enforcement record. Both the ACLU and the Concord Monitor sued under the Right-to-Know law to gain access to the redacted information. 

The Superior Court granted a request by the City to conduct an ex parte in camera hearing to review the withheld details about the covert communications equipment.  The trial court then ruled that the redacted information was exempt from disclosure under FOIA standard (A) interfere with enforcement proceedings, (E) disclosure of law enforcement techniques and procedures and (F) could reasonably be expected to endanger the life or physical safety of any individual. 

The Supreme Court ruled that in cases involving the Murray v. NH Div. State Police, 154 N.H. 579 (2006) exemptions for law enforcement records, a trial court may exercise its discretion to hold an ex parte in camera hearing — but only after it has required the government to make as complete and detailed a public disclosure justifying exemption as possible, and determined that the disclosure nonetheless fails to provide a sufficient basis for it to make a decision. Importantly, the Court also ruled that when judging whether disclosure of a law enforcement record would result in circumvention of the law under Exemption E the government must only establish that disclosure might create a risk of circumvention of the law.  The Court did require disclosure of a nondisclosure agreement between the vendor and the City, but otherwise upheld the decision of the Superior Court. 


Additional Information: 

Practice Pointer:  When defending the non-disclosure of information deemed likely to lead to the circumvention of the law, be prepared to provide a sufficient level of detail so the requesting party, and a reviewing court, receives enough information to justify the exemption.  Conclusory statements will not be sufficient, as some detail that does not reveal the truly confidential specifics is required.