Grafton County Attorney’s Office v. Elizabeth Canner

Annulment Protects Person, not Record from Disclosure
New Hampshire Supreme Court No. 2015-0536
Tuesday, August 23, 2016

In 2013, “John Doe” was prosecuted for multiple felony counts and was acquitted by a jury. Pursuant to RSA 651:5, he sought and received an annulment of his arrest. However, while the annulment request was pending, Elizabeth Canner made a Right-to-Know Law request to the county attorney’s office and the Hanover Police Department, requesting all documents related to Doe’s trial and the investigation of the charges.

The attorney general and police department petitioned the superior court for a declaratory judgment, asking whether, after an annulment has been granted, records pertaining the annulled arrest and prosecution are exempt from public disclosure under The Right-to-Know Law. The trial court answered that the statute did not “clearly and entirely” exempt these records from disclosure, and that an annulment treats the person, not the associated records, as if he had never been arrested.

On appeal, the New Hampshire Supreme Court agreed that these records were not categorically exempt from disclosure. The Court referred to a 2011 case, where a political candidate had disclosed his opponent’s annulled conviction to the newspaper. Although that case did not involve a Right-to-Know Law request, the plaintiff did argue that he had an expectation that his annulled conviction was “effectively erased” from public disclosure. The Court disagreed with that interpretation, determining that the statute requires the person to be treated as if he were not arrested, but did not “enshroud the record itself with a cloak of secrecy.” Nor could an annulment have the effect of entirely erasing the past. Furthermore, the statute requires only that the police and prosecutors “clearly identify” the annulled records and does not state that the records are exempt from public disclosure.

Therefore, the Court held that records maintained by arresting and prosecuting agencies pertaining to an annulled arrest and the related prosecution do not fall under the exemption in RSA 91-A:4, I, for records that are “otherwise prohibited by statute” from public disclosure.

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