The State Supreme Court Essentially Affirmed the Superior Court’s Opinion that an Investigative Report into a Police Officer’s Conduct is Subject to the Privacy Interest v. Public Interest Balancing Test

Provenza v. Town of Canaan
New Hampshire Supreme Court Case No. 2020-0563
Friday, April 22, 2022

Officer Provenza was involved in an arrest where the defendant later issued a complaint alleging excessive force against the officer. The Town of Canaan hired an independent investigative firm to look into the encounter and determine if any misconduct occurred. Valley News filed a Right-to-Know request seeking disclosure of the report. The Town denied the request, citing the “internal personnel practices” exemption set forth in RSA 91-A:5 IV.

The Superior Court ruled that the report was subject to disclosure under the Right-to-Know law under the precedent set forth in Union Leader v. Town of Salem and Seacoast Newspapers v. City of Portsmouth. The Court applied the privacy interest v. public interest balancing test to the report and concluded that there was a compelling enough public interest to warrant disclosure. Provenza appealed.

The Supreme Court took up several arguments made by Provenza on appeal. First, Provenza argued that under RSA 105:13-b there is an exception to the Right-to-Know Law that should apply to the investigative report. The Court ruled that by its express terms, RSA 105:13-b pertains only to information maintained in a police officer’s personnel file. The Court reasoned that had the legislature intended this exception to apply more broadly to “personnel information” they would have said so. There was nothing in the record to suggest that the report was contained in or is part of Provenza’s personnel file. Therefore, because the case lacked evidence to establish that the report was physically in a “personnel file” the Court declined to address this issue any further.

Instead, the Court focused its analysis on Provenza’s assertion that release of the report violated his privacy interests under RSA 91-A:5, IV. The Court found that Provenza’s privacy interest was minimal as the report did not reveal intimate details of his life, but rather information relating to his conduct as a government employee while performing his official duties and interaction with members of the public. Additionally, there was a compelling public interest in knowing how the department investigated claims of misconduct against an officer. Under this previously established balancing test, the report was subject to disclosure under RSA 91-A.


Additional Information: 

Practice Pointer: The Court declined to properly analyze what role RSA 105:13-b plays when it comes to exempting documents from a Right-to-Know request. Instead, the Court reaffirmed the fact that documents relating to internal investigations of police officers remain subject to the privacy vs. public interest balancing test, and when the focus of an investigation involves a person’s actions “while performing their official duties”, any privacy interest will be minimal.