SAU #55 is comprised of Hampstead School District and the Timberlane Regional School
District. All five members of the Hampstead School Board serve as members of the SAU Board. Nine members of the Timberland School Board also serve as members of the SAU Board.
After a SAU employee complained that a member of the SAU Board engaged in workplace harassment, the Chair of the SAU arranged for an investigation by outside legal counsel. The engagement letter between the SAU and those attorneys provided that the investigation was done on behalf of the SAU and any report would be subject to the attorney-client privilege. When that investigation was finished the Chair of the SAU announced at a public meeting that the attorney investigators concluded that the allegations of workplace harassment had no merit. When the written report of the investigating attorneys was completed the Hampstead contingent of the SAU Board requested access to the report, including seeking access under RSA 91-A. SAU’s legal counsel informed Hampstead members of the SAU that the report was exempt from disclosure as an “internal personnel practice” under RSA 91-A:5, IV, and because the report implicates the attorney-client privilege and work product doctrine.
The Superior Court rejected the argument by the SAU that the legal principles found in Union Leader Corp v. Fenniman, 136 N.H. 624 (1993) should be extended to exempt not only investigations into employee misconduct but also exempt investigations into official misconduct by those who hold elected positions and who serve in the role as employers. On the application of the attorney-client privilege and work product privilege doctrine, the Superior Court relied on Hampton Police Ass’n, Inc. v. Town of Hampton, 162 N.H. 7 (2011) ruling that to resist non-disclosure use of a balancing test was necessary. That balancing test provides that the party resisting disclosure must prove that disclosure is likely to: (1) impair the information holder’s ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. Based upon the public declaration of by the Chair of the SAU that the conclusions of the report found no official misconduct, and based on the unique situation that members of the SAU governing body were being denied access, and Court found that the balancing test mandated disclosure to the Hampstead members of the SAU.