LEGAL Q&A: Right-to-Know and Privacy Q&A

Jonathan Cowal, Municipal Services Counsel

The purpose of the Right-to-Know Law (RSA 91-A) is to provide transparency in government and ensure the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. Under RSA 91-A the public has broad access to governmental records created, accepted or obtained by a public body or agency. However, while the purpose of the Right-to-Know law is to allow the public access to information and records kept by government agencies, that doesn’t mean this access comes without its limitations.

Questions most often emerge when information about an individual that would generally be considered private ends up in a governmental record and could be subjected to disclosure pursuant to a request made under the Right-to-Know law. It is important to remember that just because a governmental record can or even should be disclosed under RSA 91-A, it doesn’t mean that privacy interests of individuals no longer apply. Right-to-Know was designed to shed light on the operation of government entities, not necessarily individuals, especially if they are not themselves government employees or were not acting in their capacity as a government official.

Q:  What privacy protections exist within RSA 91-A?

A: RSA 91-A:5 lists a series of governmental records which are exempted from disclosure under the Right-to-Know law. These exemptions include records such as grand jury lists, personal school records of pupils, teacher certification records, and records pertaining to matters relating to the preparation for and the carrying out of all emergency functions. Tucked within paragraph IV of section 5 it also states, “personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.” It is the statement, “other files whose disclosure would constitute invasion of privacy” that has been interpreted as the exemption used to protect individual privacy interests when it comes to disclosure of records.

Q:  What type of information constitutes an invasion of privacy?

A: First and foremost, most personally identifying information about an individual would be considered outside the scope of what should be disclosed in a public records request. Things like addresses, phone numbers, social security numbers and email addresses of private citizens found within a governmental record should be redacted before those records are disclosed to the public. Keep in mind, however, the context in which this information was obtained matters. For something to constitute an invasion of privacy, the person providing the information must have had an expectation of privacy to begin with. For example, someone who stands up at a public meeting and introduces themselves by providing their name and address would not have a strong privacy interest in keeping that information out of the publicly available meeting minutes given that they chose to announce that information to the public body. Contrast that example with someone who was asked to provide their name and address when reporting a gas leak to the DPW. If records of the DPW’s response to that gas leak were sought pursuant to a RSA 91-A request, the person who was asked to provide their name and address when making the initial report would have a greater privacy interest because they did not give that information voluntarily and in an obviously public forum. When a situation such as this arises, a simple redaction can be all that is needed prior to disclosing the documents. But what happens when the information is broader than just a name or phone number? What if an individual’s entire interaction with a government entity could constitute an invasion of privacy if records of that interaction were released to the public?

Q:  How do I tell if enough of a privacy interest exists to qualify as an exemption from disclosure?

A:  The law supports disclosure. Unless a compelling privacy interest exists, records that would normally be subjected to disclosure should be disclosed under Right-to-Know. However, sometimes private citizens are forced to interact with state and local agencies, and records of that interaction, if disclosed, would constitute a significant breach of their right to privacy. This most often occurs when we are dealing with records kept by a police department or child protection services. The courts have therefore adopted a balancing test used to determine whether or not disclosure is appropriate.

First you must determine what, if any, privacy interest is at stake. As mentioned above, context is important when making this determination. If the records pertain to an inherently public interaction, like participation in a public hearing, there would be almost no expectation of privacy as compared to an interaction with police in the privacy of your home. When it comes to law enforcement, the court has recognized that members of the public generally have a privacy interest pertaining to things like police reports, dispatch logs and calls for service as public disclosure of that information can lead to embarrassment, judgement, or loss of status in the community. If it is determined that someone would reasonably have a privacy interest at stake, you then must move on to the second prong of the test.

The next question to ask is, what is the public interest in disclosing the records? This can sometimes be a confusing concept to understand because the question to ask is not if there is some individual interest contained within the records, but rather if the records show that the government entity is operating properly. The case of Welford v. State Police provides a good example of how to approach this question. Here, the New Hampshire State Police were issued a request under 91-A to produce any records in their possession involving matters with Mr. Welford, who was a local school board member. The State Police refused to either confirm or deny the existence of any records involving this individual, citing the privacy exemption contained in RSA 91-A:5, IV. The court ruled that the State Police’s response was proper because the requesting party did not articulate a public interest in disclosing the records that would outweigh Mr. Welford’s privacy interests. There needed to be more than a bare suspicion that Mr. Welford was acting irresponsibly, or that the records provided insight on how the State Police as a governmental entity were operating. Because the public interest here was so limited, it did not outweigh the privacy interest and the records were exempt from disclosure.

Q:  What if the records being requested contain a strong privacy interest, but disclosure is necessary to protect someone’s health or safety?

A:  RSA 91-A:5, IV states, “Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a public body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected.” If a situation arises where disclosure is determined to be necessary to protect someone’s health or safety, the statute does allow those records to be disclosed pursuant to the proper redactions. Before disclosing these records, two things must be takin into consideration. First is that the records are being disclosed to persons whose health or safety may be affected. This means that the person requesting the records should articulate in some way how their, or someone under their custody’s, health or safety is affected by the disclosure of these records. Second, is that the confidentiality of the files is not otherwise compromised. This means that proper care should be taken to redact any private or identifying information about individuals contained in the records other that of the requesting party.

Jonathan Cowal is the Municipal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.