In this case, the petitioner, Reid, requested documents related to the Attorney General’s investigation of former Rockingham County Attorney, James Reams. The trial court ruled that because the requested records related to the Attorney General’s investigation into alleged misconduct of the County Attorney, the information directly related to “personnel practices” and was exempt from disclosure under RSA 91-A:5, IV.
The New Hampshire Supreme Court originally applied the exemption for “records pertaining to internal personnel practices” in RSA 91-A:5, IV to records related to the internal investigation and discipline of employees. Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993); Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006). Then, in 2011, the Court held that the names of employees operating city surveillance equipment did not qualify as “internal personnel practices,” using federal court opinions interpreting a similar provision in the Freedom of Information Act (FOIA)—Exemption 2—as a guide. Montenegro v. City of Dover, 162 N.H. 641 (2011). In the Reid Opinion, the Court clarified the scope of this exemption, and distinguished it from the “personnel files” exemption, by defining the meaning of the words “personnel” and “internal.”
The Court looked at both the plain dictionary meaning of the word “personnel,” as well as federal court opinions interpreting a similar provision in the Freedom of Information Act (FOIA), and determined that the word “personnel” applies to the “selection, placement, and training of employees,” the “formulation of policies, procedures, and relations with [or involving] employees or their representatives,” including “such matters as hiring and firing, work rules and discipline, compensation and benefits.”
The Court then said that a personnel practice is “internal” when it “exists or is situated within the limits of” the employment relationship. The Court looked at the relationship between the County Attorney and Attorney General’s Office and determined that they did not share an employment relationship. For that reason, the investigation could not be considered “internal.”
After rejecting the argument that the Attorney General’s investigation was an “internal personnel practice,” the Court remanded the case for a determination of whether the investigatory records could be exempt under RSA 91-A:5, IV, as “personnel . . . files whose disclosure would constitute an invasion of privacy.” The Court stated that because personnel files are not per se exempt, this exemption must be analyzed under a two-part test: (1) whether the material can be considered a “personnel file” or part of a “personnel file”; and (2) whether disclosure of the material would constitute an invasion of privacy. The Court provided helpful guidance in analyzing a privacy interest, explaining that disclosure of records constitute an invasion of privacy if disclosure could “subject individuals to stigma, embarrassment, and reputational injury,” further stating that the exemption applies to the “kinds of facts that are regarded as personal because their public disclosure could subject the person to whom they pertain to embarrassment, harassment, disgrace, loss of employment or friends.”