This case provides additional guidance regarding the extent to which law enforcement records can be withheld under the so-called “Murray” exemptions to RSA 91-A. While law enforcement records are not specifically exempt from disclosure under RSA 91-A:5, New Hampshire courts have incorporated a 6-category law enforcement exemption under the federal Freedom of Information Act (“FOIA”) into the interpretation of RSA 91-A. The Town of Hanover relied in this matter on categories (A) and (B) of that scheme, which apply to records or information compiled for law enforcement purposes but only to the extent that the production of such records or information (A) could reasonably be expected to interfere with enforcement proceedings, or (B) would deprive a person of a right to a fair trial or an impartial adjudication. The opinion in this case provides a bit more clarity about the scope of these categories. It also puts municipalities on notice that proactively seeking assistance from superior court may not shield them from having to pay the other party’s attorneys’ fees and costs if they knew or should have known that denying access to records will violate the law.
In October 2023, two Dartmouth College students were arrested in connection with an incident that occurred in the Town of Hanover. Valley News filed a Right-to-Know request for the arrest records. Although an attorney for the two students agreed that the records could be disclosed, Hanover denied the request, citing the pending criminal prosecution of the cases as the reason they would not be released. Valley News continued to assert that the records must be disclosed.
Hanover then filed a declaratory judgment action in superior court asking whether the arrest records (whether redacted or full) must be released in light of the pending criminal prosecution. The court initially ordered Hanover to release the records and granted Valley News’s request for an award of costs and attorneys’ fees to be paid by Hanover. However, after Hanover filed a motion asking the court to reconsider that order, the court changed its mind regarding costs and attorneys’ fees. The court concluded that the extent of FOIA category B and the government’s specific burden to demonstrate that it applies were unsettled areas of law in New Hampshire, and that Hanover had made a good-faith effort to navigate this issue. Finding it had made a mistake when it initially decided Hanover should have known its actions violated the Right to Know Law, the court determined in August 2024 that costs and fees shouldn’t have been awarded.
The next month, Hanover released the arrest records to Valley News as ordered. Less than a month after that, in October 2024, Valley News filed a motion asking the court to reopen the case and award attorneys’ fees and costs. Valley News argued that, “given the content of the records,” Hanover knew or should have known that denying access to those records violated RSA 91-A. The superior court found that the motion was procedurally proper, but denied the request to reopen the case or change its order regarding costs and fees. Valley News appealed to the NH Supreme Court.
As an initial matter, the Supreme Court found that the motion to reopen the case was timely despite having been filed 51 days after the superior court’s August 2024 order. The motion was based on information Valley News could not have known until it received the arrest records – i.e., the content of the records – and was filed in a timely manner thereafter.
Turning to the superior court’s denial of attorneys’ fees, the Court looked at RSA 91-A:8, I, which provides that fees “shall” be awarded if the trial court finds that the lawsuit was necessary to make the requested information available and that the public body knew or should have known that its conduct violated the law. The issue before the Court in this case was whether Hanover should have known that the records were not completely exempt from disclosure.
Valley News argued that Hanover knew or should have known that at least some of the records in the arrest files were not exempt and should have been provided, even if other material may have been exempt and subject to redaction. In particular, they pointed to reports consisting of publicly available records: the Dartmouth College president’s message to the community about the arrests; Dartmouth conduct policies available online; and two student position statements also available online. Hanover, for its part, argued that there was uncertainty about whether the records were exempt from disclosure. The Town noted that the records were compiled by law enforcement as part of the criminal investigation and could interfere with enforcement proceedings or a person’s fair trial because they provided insight into law enforcement’s exploration of the underlying criminal matter.
The Court disagreed, saying it failed to see how the publicly-available records provide any insight into either category A or B. Two of the documents, in particular, were statements of generally-applicable college policies regarding student conduct and the use of areas of the campus. The Court concluded that Hanover knew or should have known that, even if the law regarding the FOIA factors is unsettled, the Town was not permitted to issue a blanket denial for the records if there were portions which did not plausibly fall within the exemption. As a result, RSA 91-A:8, I required the Town to pay Valley News’s attorney’s fees.
It is also useful to note that Hanover’s choice to proactively seek guidance from the superior court did not shield it from being ordered to pay Valley News’s costs and fees. Costs and attorneys’ fees may only be ordered if the lawsuit was necessary to enforce compliance with RSA 91-A or to address a purposeful violation of it. RSA 91-A:8, I. (Note that an award of costs doesn’t require the “knew or should have known” analysis that is required for an award of attorneys’ fees.) Hanover argued that Valley News was not forced to file a complaint with the court because the Town first worked with Valley News to try to resolve the matter and then proactively sought the court’s assistance with an unsettled area of the law. However, the superior court found that it had taken many months for Valley News to gain access to records that it had a right to obtain, and that although Hanover had initiated the legal proceedings, those actions led Valley News to obtain an attorney to secure access to the records. Hanover had not argued with that finding and the Supreme Court accepted it.
Having rejected Hanover’s arguments, the Court remanded the case to the superior court for an award of attorneys’ fees and costs.
READ MORE IN COURT DECISION ON PRELIMINARY INJUNCTION!
Practice Pointer: All portions of law enforcement records which are requested under RSA 91-A should be examined so that any portion which is not exempt can be provided. Only those portions which are exempt, or for which there is still a reasonable basis for uncertainty given prior court opinions on the subject, should be withheld. It is quite likely that records which are otherwise publicly available and which do not provide real information about the investigation are not exempt. When in doubt, consult your municipal attorney for guidance about which records to release and when (and whether) to seek superior court assistance.