Parties May Not Negotiate Away the Public’s Right to Access Records under RSA 91-A Through Private Settlement Agreements or Confidentiality Agreements

Jonathan Stone v. City of Claremont
New Hampshire Supreme Court Case No. 2023-008
Wednesday, March 20, 2024

A journalist sought disclosure of records related to the plaintiff via a Right-to-Know request under RSA 91-A. The plaintiff was a former Clairmont police officer. The records sought by the journalist were related to variance Internal Affairs reports against the officer. As part of a negotiated settlement between the officer and the City, the parties came to an agreement to “purge” the plaintiffs personnel file of all references to a suspension, notice of termination, and all events leading up to them. It was also agreed that the matter would not be reported to the newspaper or other media outlet, and if any media outlet asked about the events the parties agreed to provide no comment.

Now, the plaintiff argues that this agreement prohibits the disclosure of these records pursuant to a Right-to-Know request. First, the court recognized that the confidentiality agreement itself acknowledges that there may be other provisions in the law, or changes to the law, that would alter the confidentiality of these records. It is clear from the facts that these records are considered governmental records under RSA 91-A. They are investigative records related to the actions of a City police officer who was acting in his official capacity at the time. While the plaintiff may have a privacy interest in some of the information contained in these records, there is a strong public interest involved here. The terms of this settlement agreement between the City and the plaintiff will not supersede the constitutional requirements imposed under RSA 91-A and therefore, the records are subject to disclosure.


Additional Information: 

Practice Pointer: If a municipality intends to negotiate a confidentiality agreement involving public records that may be subject to disclosure, it must be cognizant about the limitations of such an agreement, should someone file a Right to Know request seeking such information.