247 A.3d 383
N.H.2020Background
- The New Hampshire Department of Justice (DOJ) maintains an Exculpatory Evidence Schedule (EES), a statewide spreadsheet summarizing officers whose conduct may affect credibility; columns include name, department, incident date, notification date, and categorical label of behavior.
- The DOJ says the EES is a prosecutorial reference tool to alert prosecutors to potential exculpatory material; it does not reside in individual police personnel files and the DOJ does not employ the listed officers.
- Plaintiffs (local news organizations and ACLU‑NH) sought unredacted EES records (excluding officers with pending removal requests); the DOJ provided only a version redacting officer identities and denied unredacted requests.
- Plaintiffs filed a petition under the Right‑to‑Know Law (RSA chapter 91‑A) and the state constitution seeking a declaration that the unredacted EES (with certain exclusions) is a public record.
- The superior court denied the DOJ’s motion to dismiss, rejecting DOJ arguments that RSA 105:13‑b made the EES confidential and that the EES was exempt as an “internal personnel practice” or a “personnel file.” The parties stipulated the order was final and the DOJ appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RSA 105:13‑b bars disclosure of the EES | EES is not a police personnel file and must be disclosed under RSA 91‑A | RSA 105:13‑b makes officer personnel information confidential even if aggregated outside personnel files | Court: RSA 105:13‑b applies to a police officer’s personnel file; because EES is not kept in an individual officer’s personnel file, RSA 105:13‑b does not bar disclosure |
| Whether EES is exempt as an “internal personnel practice” under RSA 91‑A:5, IV | EES is not an internal operational rule; it is list of officer history and should be public | EES records relate to internal personnel practices and were historically treated as confidential | Court: Fenniman's broad construction was overruled; internal personnel practices exemption is narrow and DOJ did not show EES fits that narrow definition; exemption rejected |
| Whether EES is a "personnel" or "other file[] whose disclosure would constitute invasion of privacy" under RSA 91‑A:5, IV | Public interest in disclosure of officers affecting credibility outweighs privacy; EES is not a personal personnel file | EES implicates privacy interests of officers and disclosure would invade privacy; balancing should bar release | Court: Trial court correctly found EES is not a personnel file but did not decide the alternative privacy balancing; appellate court vacated and remanded for the trial court to address whether disclosure would constitute an invasion of privacy under the statutory balancing test |
Key Cases Cited
- State v. Laurie, 139 N.H. 325 (1995) (prosecution’s failure to disclose police employment records affecting credibility requires new trial)
- Duchesne v. Hillsborough County Attorney, 167 N.H. 774 (2015) (prosecutor’s duty to disclose exculpatory/impeachment material and imputed knowledge among prosecutors)
- Gantert v. City of Rochester, 168 N.H. 640 (2016) (background on county Laurie lists and retention of potential Laurie material)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial duty to disclose exculpatory evidence)
- Kyles v. Whitley, 514 U.S. 419 (1995) (government’s duty to learn of and disclose favorable evidence known to others acting on its behalf)
- United States v. Bagley, 473 U.S. 667 (1985) (Brady/Bagley standards for impeachment material disclosure)
- Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993) (earlier broad interpretation of "internal personnel practices" exemption; later overruled)
- Prof’l Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H. 699 (2010) (three‑step privacy balancing test under RSA 91‑A:5, IV)
- Milner v. Department of Navy, 562 U.S. 562 (2011) (definition and typical location of an employee’s personnel file)
- Worcester Tel. & Gazette v. Chief of Police, 787 N.E.2d 602 (Mass. App. Ct. 2003) (examining nature/character of records in personnel‑information exemption analysis)