The Fall Mountain Regional School District undertook the investigation of misconduct by a district employee who was accused of sexually harassed co-workers while at work and outside work hours. The district’s law firm investigated, culminating in a report that precipitated the departure of the district employee from employment with the district. That departure was occasioned by a settlement payment that was in addition to “regular salary and accrued vacation, sick, or other leave.” 91-A:4, I-a.
On appeal of a decision by the Superior Court the NH Supreme Court clarified the statutory exemption for governmental records protected under the attorney-client privilege; provided further guidance that protecting the privacy of cooperating witnesses must yield to the public interest and require disclosure of a government investigation; and mandated that payments to a departing employee shall be fully documented with copies of original statements and invoices.
The Superior Court ruled that the privacy balancing test did not apply when addressing a request to release documents protected under the attorney-client privilege. In affirming that ruling the Supreme Court noted that the legislature amended RSA 91-A:5 to add a specific exemption for records protected under the attorney-client privilege or the attorney work product doctrine. Laws 2021, 163:2 (adding paragraph XII to RSA 91-A:5). “This 2021 amendment signals the legislature’s recognition of our decisions that have treated such records differently than other records that may be exempt under RSA 91-A:5, IV.” Consequently, attorney client privileged records, including work product records, are per se exempt and are not subject to the privacy balancing test.
The Superior Court exempted the disclosure of investigation records, and certain correspondence related to that investigation, as records whose disclosure would constitute invasion of privacy. RSA 91-A:5, IV. While the Supreme Court agreed that the individuals involved in the investigation have a strong personal interest in keeping the details of their personal or family lives confidential, the Court did not agree this sufficiently justified exempting the investigation records from disclosure. Rather, the Court concluded that redaction of all personally identifying information sufficiently afforded privacy protections to complainants and witnesses. The Supreme Court also found that public interest overrode any privacy interests given that the public has a significant interest in knowing whether a government investigation is comprehensive and accurate. Furthermore, “there is a particularly strong public interest in public oversight of the government’s activities with respect to its administration of processes designed to promote a safe school environment.” Of note, the Supreme Court gave little or no weight to the School District’s concern that releasing the records risks chilling the cooperation of complainants and witnesses to participate in internal investigations. The Supreme Court concluded that the Superior Court erred in its application of the RSA 91-A:5, IV exemptions. The records that the
Superior Court determined were exempt pursuant to RSA 91-A:5, IV, including the Settlement Agreement, were deemed subject to disclosure with appropriate redactions.
When addressing the Superior Court’s denial of an award of attorney’s fees and costs under RSA 91-A:8, I the Supreme Court focused on the District’s failure to comply with the requirements of RSA 91-A:4, 1-a. That provision mandates disclosure of “records of any payment made to an employee of any public body or agency listed in RSA 91-A:I-a, VI(a)-(d) . . . upon the resignation, discharge, or retirement of the employee, paid in addition to regular salary and accrued vacation, sick, or other leave, shall immediately be made available without alteration for public inspection.” (Emphasis added). In response to a request for that information regarding the district employee who was the subject of the investigation, the District only provided a summary description of the $17,991.77 payment. The Supreme Court concluded that RSA 91-A:4, I-a requires a public agency to disclose the unaltered bank statements, invoices, or other financial records evidencing the actual payment made in addition to regular salary, accrued vacation, sick or other leave, provided that redactions may be used to protect any confidential information included in such documents.
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Practice Pointer: Attorney client communications are per se exempt from disclosure under RSA 91-A and are not subject to a privacy balancing test. Public agencies should presume that sensitive internal investigations of employee or official misbehavior are subject to disclosure since any privacy interest will likely be outweighed by the public interest, recognizing any privacy harm that would be done to cooperating complainants and witnesses can be mitigated by redactions. RSA 91-A:4, I-a requires a public agency to disclose the unaltered bank statements, invoices, or other financial records evidencing the actual payment made in addition to regular salary, accrued vacation, sick or other leave, provided that redactions may be used to protect any confidential information included in such documents.