Thomas Reid v. New Hampshire Attorney General
152 A.3d 860
N.H.2016Background
- In Nov. 2013 Attorney General Foster suspended Rockingham County Attorney James Reams’s criminal law authority, placed Deputy County Attorney Thomas Reid on paid suspension, and the AG’s office (with FBI/USDOJ) investigated alleged misconduct by Reams. The criminal investigation concluded with no charges in Mar. 2014.
- Reams sued and a superior court ordered his reinstatement in Apr. 2014; Reid later sought records from the Attorney General about the investigation and actions taken Nov. 6–7, 2013.
- Reid made two Right-to-Know requests (Apr. 2014) for investigative reports, interview notes, emails, warrants, seized items, personnel-related materials, and other records; the AG produced a large rolling disclosure but redacted many documents claiming multiple RSA 91-A:5 exemptions, including the “internal personnel practices” and privacy-based personnel-file exemptions.
- Superior Court found the AG violated the statute by untimely supplementation but declined in-camera review and denied Reid’s motion to compel unredacted records, concluding the redactions fit RSA 91-A:5, IV’s “internal personnel practices” exemption.
- On appeal the New Hampshire Supreme Court vacated and remanded, holding that (1) under RSA 91-A:5, IV the “internal personnel practices” exemption applies only to investigations conducted within the employer–employee relationship (i.e., by or on behalf of the employer), and (2) because the AG was not Reams’s employer, the trial court erred to apply that exemption to the AG’s investigation; the Court directed remand to consider the separate personnel-file/privacy exemption and to apply the appropriate two-step/three-step analyses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RSA 91-A:5, IV’s “records pertaining to internal personnel practices” exemption covers the AG’s investigative records | Reid: exemption requires the investigation to be "internal" to the employer; AG is not the employer so exemption does not apply | AG: supervisory authority and interest in prosecutorial effectiveness make its investigation analogous to an employer’s internal investigation | Court: exemption applies only to investigations by or on behalf of the employer; AG was not Reams’s employer, so trial court erred applying this exemption; vacated and remanded |
| Whether county attorneys are employees of the Attorney General for RHS exemption purposes | Reid: county attorneys are independently elected and not AG employees | AG: statutes give supervisory/control over county attorney criminal enforcement sufficing to treat AG as employer | Court: county attorneys are not AG employees (no hiring/firing/salary control); supervisory power insufficient to create employer relationship for exemption |
| Whether withheld material might nonetheless be protected as personnel files whose disclosure would invade privacy and what test applies | Reid: public interest in disclosure about removal of elected official and basis for AG actions | AG: privacy interests of county office employees who cooperated in investigation justify nondisclosure | Court: remanded to trial court to analyze personnel-file exemption under a two-part test (is material in a personnel file?) and the three-step privacy balancing test (privacy interest; public interest; balance) |
| Scope of court’s earlier reliance on Fenniman/Hounsell and applicable balancing | Reid: Fenniman/Hounsell were applied too broadly without attention to “internal” modifier and without balancing | AG: prior NH cases support broad construction protecting internal investigations and employee privacy | Court: follows Fenniman/Hounsell to the extent they treat employee-misconduct investigations as personnel practices but limits their scope — must be internal; for personnel-file/privacy exemption apply traditional balancing tests |
Key Cases Cited
- Union Leader Corp. v. City of Nashua, 141 N.H. 473 (N.H. 1996) (principles favoring disclosure; recognition of privacy interests in law-enforcement investigatory records)
- Fenniman v. Dover Police Dep’t, 136 N.H. 624 (N.H. 1993) (held investigatory files documenting internal discipline fell under "internal personnel practices" exemption)
- Hounsell v. North Conway Water Precinct, 154 N.H. 1 (N.H. 2006) (held outside-investigator report prepared on behalf of employer was an "internal personnel practice")
- Milner v. Department of Navy, 562 U.S. 562 (U.S. 2011) (construes FOIA Exemption 2 narrowly; defines scope of "personnel rules and practices")
- Department of the Air Force v. Rose, 425 U.S. 352 (U.S. 1976) (discusses FOIA Exemption 2 purpose and limits)
- N.H. Right to Life v. Director, N.H. Charitable Trusts Unit, 169 N.H. 95 (N.H. 2016) (articulates the three-step analysis for whether disclosure would constitute an invasion of privacy)