New Hampshire Right to Life v. Director, New Hampshire Charitable Trusts Unit

“Practical Obscurity”: Individuals Have Some Privacy Interest in Identity and Whereabouts
New Hampshire Supreme Court, No. 2015-0366
Thursday, June 2, 2016

This case involved Right-to-Know Law requests made by the plaintiff organization, New Hampshire Right to Life, to several State agencies to produce various records related to Planned Parenthood of Northern New England (PPNNE) and its New Hampshire clinics. Much, although not all, of the requested information was produced, but with redactions.

On appeal, there were primarily two 91-A exemptions at issue, both falling under RSA 91-A:5, IV: (1) attorney-work product as confidential/privileged information and (2) information that, if disclosed, would constitute an invasion of privacy.

“Work product” is work of an attorney done in anticipation of, or during, litigation.  Work product is protected under the attorney-client privilege, and therefore is exempt from disclosure under 91-A:5, IV as “confidential” information. The State had withheld as work product email communications and other written statements prepared as part of federal litigation involving RSA 132:38, the buffer zone statute. The Court ultimately determined that these items were work product and were properly exempt from disclosure because, under FOIA, the test for disclosure is whether the documents would be “routinely or normally disclosed upon a showing of relevance.” Because documents that are work product would not be routinely or normally disclosed, and because FOIA is not to be used as a mechanism for obtaining information that is otherwise privileged and not available through civil discovery, the request work product was protected from disclosure.

The analysis of the privacy issue, however, is more significant for municipalities. The first pieces of information that the State withheld on this basis were DVDs containing footage from security cameras at a PPNNE office, and correspondence regarding the DVDs.

The DVDs showed three different views of the sidewalk, which revealed individual protestors, passersby not related to PPNNE business, and vehicles entering, exiting, or parked in the lot or the adjacent lot to the building, including the license plates on those vehicles. The trial court had concluded that the DVDs were totally exempt from disclosure on privacy grounds.

The Supreme Court first said that the non-protesting individuals and/or their vehicles did have a privacy interest. The Court drew on Lamy—the oft-cited privacy and Right-to-Know Law case in New Hampshire—and said that individuals generally have “a large measure of control over the disclosure of their own identifies and whereabouts.” The Court explained further that individuals have an “interest in retaining the ‘practical obscurity’ of private information that may be publicly available, but difficult to obtain,” referring to a U.S. Supreme Court case that found federal employees have an interest in their home addresses even though the information may be publicly available through other sources, such as telephone directories. Furthermore, the Court said the fact that these individuals and license plates were publicly displayed when being recorded did not mean they had no privacy interest in their whereabouts because “the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure of dissemination of the information.” However, the Court sent this issue back to the trial court to adduce additional information about the individuals being shown on the tapes in order to determine the level of privacy interest, balanced against the public interest, under the Lamy balancing test.

 The second major piece of information was in the form of names: (1) names on applications for renewal of drug distributer licenses from the State and (2) names of other individuals on other documents, such as names of personnel and names of board members.

As to the names on the applications, the State had disclosed the applications, but redacted individual names of particular individuals, instead simply leaving the job titles. The Supreme Court agreed with the trial court that the individuals whose names were redacted had a privacy interest in the nondisclosure of their identities as employees or independent contractors. As support, the Court said that a privacy interest in an individual’s identifying information exists when public identification “could conceivably subject” them to “harassment and annoyance in the conduct of their official duties and in their private lives,” as well as in “avoiding physical danger.” The Court looked to prior police incident reports of threatening or harassing conduct towards individuals at the clinic, as well as the history of violence associated with the type of services PPNNE provides, to support the conclusion that these individuals have a privacy interest in their identities and safety. As to the public interest, the Court found the plaintiff’s arguments unavailing. Knowing the names of the individuals involved in dispensing pharmaceuticals did not provide the public insight into whether State was properly enforcing the law regulating licensing of clinics. Furthermore, PPNNE is a private organization, not a governmental entity, and the bulk of its funds do not come from public money. Therefore, under the Lamy balancing test, the privacy interest far outweighed any potential public interest.

The Court also held that the other names—personnel, board members, as well as resumes of some employees—invoked a privacy interest, like the names on the license applications. Furthermore, there was no public interest because the names of the individuals would not alert the public as to what their government is “up to.” The plaintiff argued that public had an interest in these names because it would enable the public to scrutinize whether the individuals had contributed to political campaigns and whether the contributions resulted in the State showing undue favoritism to the clinic. But the Court held that this asserted “public interest” was nothing more than “derivative use,” which was held to have little weight in the Lamy case.

 The State also withheld requested financial information, including assets and liabilities, income and expenses, cash flow, and a budget form. The Supreme Court agreed with the trial court that there was a privacy interest in financial information as it related to the center’s commercial activities and competitive stance in the market, and, even if the clinic had received State money, the requested information did not provide the public information about how that money was being spent. Finally, the Court refused to grant attorneys’ fees and costs to the plaintiff, and found that the State’s responses to the Right-to-Know Law requests were sufficiently specific, because the State cited statutory provisions, case law, or other applicable privileges justifying nondisclosure. 

Learn More in Court Decision.