38 Endicott Street North, LLC v. State Fire Marshal
163 N.H. 656
| N.H. | 2012Background
- Petitioner owns the Wide Open Restaurant in Laconia; fire occurred Sept 17, 2010; the State Fire Marshal Office investigated the fire.
- Petitioner requested all records related to the investigation on April 8, 2011, and again on May 3, 2011; Fire Marshal disclosed some items on May 5, 2011 but withheld most as exempt.
- Trial court held the withheld records were exempt under Murray exemption and denied petition and attorney's fees.
- Fire Marshal argued withheld materials were compiled for law enforcement purposes; petitioner argued Fire Marshal is not a law enforcement agency and records were not compiled for law enforcement.
- Fire Marshal disclosed additional materials on June 6, and after a June 7 hearing, the court upheld the exemption and denied the petition for records and fees.
- Petitioner appeals, challenging the Murray exemption application, lack of in camera review/Vaughn index, and denial of attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether records were compiled for law enforcement purposes. | Endicott argues records were not compiled for law enforcement. | Fire Marshal asserts records were compiled for law enforcement due to Fire Safety investigation. | Yes; records were compiled for law enforcement due to mixed-function agency duties. |
| Whether disclosure would reasonably interfere with enforcement proceedings. | Disclosure would not affect prosecutions. | Disclosure could interfere with ongoing and future enforcement. | Yes; disclosure could reasonably be expected to interfere with enforcement proceedings. |
| Whether in camera review or a Vaughn index was required. | Court should conduct in camera review or require Vaughn index. | Affidavits and categorization suffice; review not required. | Not required; adequate categorization and affidavit supported exemption. |
| Whether the trial court properly denied attorney's fees. | Fees should be awarded if agency violated RSA 91-A:4. | Proceedings were not necessary to make information available. | Affirmed; fees denied. |
Key Cases Cited
- Murray v. N.H. Div. of State Police, 154 N.H. 579 (2006) (two-part Murray test for records compiled for law enforcement purposes; disclosure consequences)
- Montenegro v. City of Dover, 162 N.H. 641 (2011) (refines Murray exemption application in New Hampshire)
- Lodge v. Knowlton, 118 N.H. 574 (1978) (adopted exemption 7 approach in NH FOIA context)
- Abramson v. FBI, 456 U.S. 615 (1982) (federal framework for law enforcement exemptions; rational nexus/per se approaches)
- Church of Scientology of California, Etc. v. United States Dept., 611 F.2d 748 (9th Cir. 1979) (concept of rational nexus for mixed-function agencies (privacy/security concerns))
- Solar Sources, Inc. v. United States, 142 F.3d 1033 (7th Cir. 1998) (discusses interference with enforcement proceedings as a disclosure risk)