In February 2017, a New Hampshire state trooper and member of the state’s Mobile Enforcement Team, Officer Wilber, pulled over a driver for having snow covering her vehicle’s rear lights. The following events resulted in the driver spending 13 days in jail and having multiple allegedly unconstitutional searches performed of her effects and person. She initiated civil suits, the first of which settled, and state police and the Attorney General’s Office investigated the officer’s history and behavior, finding “disturbing facts” about his investigations that were “an embarrassment” to the state police. In August 2021, around the time the officer was dismissed and placed on the Exculpatory Evidence Schedule (commonly known as the Laurie List), the American Civil Liberties Union of New Hampshire (“ACLU”) submitted a Right-to-Know request to the state police under RSA. 91-A:4 for “[all] reports, investigatory files, personnel, and disciplinary records concerning State Police Trooper Haden [Wilber] that relate to any adverse employment action.” After the Division of State Police had “not produced the requested information” and appeared to have “no intention of doing so in the future,” the ACLU filed a complaint to compel disclosure. The trial court found for the ACLU.
The Division argued that the requested records were exempt from disclosure under RSA. 105:13-b, III, which says in part “[n]o personnel file of a police officer who is serving as a witness or prosecutor in a criminal case shall be opened for the purpose of obtaining or reviewing non-exculpatory evidence in that criminal case” unless so ordered by a judge who reviews it in advance. The court disagreed with this reading, stating that there is no inference to be made about public disclosure from this statute which is about trial procedure. Citing Doe v. Attorney General and New Hampshire Center for Public Interest Journalism v. New Hampshire Department of Justice, the court said that RSA. 105:13-b has always only applied “within the limited context of a specific criminal trial.” Doe, 175 N.H. 349, 354 (2022); N.H. Center for Public Interest Journalism, 173 N.H. 648, 656 (2020).
Additionally, the Division argued that the opinion of the Court in Petition of State of N.H. (State v. Fuchs), 174 N.H. 785, 791 (2022) said no further dissemination of police personnel files should be permitted beyond what is required under exculpatory evidence rules. The Court concluded this was a misread and “no further dissemination” referred to the party in Fuchs having already received the record and that language was instructing them not to disseminate it further. (See Petition of State of N.H. (State v. Fuchs), 174 N.H. 785, 791 (2022). This decision specifically says it does not overrule or diminish Fuchs.
Right-to-Know law is meant to “ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” N.H. RSA. 91-A:1. This is not the same purpose as RSA. 105:13-b, which effectuates procedure for non-exculpatory evidence in a defendant’s criminal case. The Court sees these as distinct and has no problem with two different statutes regarding police personnel records differently. The Right-to-Know law itself provides for exceptions agencies can apply to deny disclosure, including, “personnel … files whose disclosure would constitute invasion of privacy.” N.H. RSA. 91-A:5, IV. To consider this exception, courts should use a balancing test weighing the government’s interest in nondisclosure plus the individual’s interest in privacy against “the strength of the public interest [in disclosure] as tied to the purpose of the Right-to-Know Law.” Citing Union Leader Corp. v. Town of Salem, 173 N.H. 345, 355 (2020); Reid v. N.H. Attorney Gen., 169 N.H. 509, 527-29 (2016).
Justice Hicks wrote the opinion of the majority, in which Justices Hantz Marconi and Donovan joined. In dissent, Justice Bassett contended that the RSA. 91-A:4, I clause saying every citizen has the right to inspect records “except as otherwise prohibited by statute” should be read broadly. Because RSA 105:13-b is a statute that the court has said prohibits disclosure of police personnel records “for all purposes other than fulfilling the prosecutor’s duty turning over … relevant evidence,” the dissent argues Right-to-Know law should not be allowed to circumnavigated. Because the majority held for the ACLU, the Division of State Police will have to disclose the requested information as Right-to-Know law allows.