How the investigative report became public

The superintendent investigation report was obtained through a public records request that was fulfilled after The Daily Sun filed a complaint with the new state Office of the Right to Know Ombudsman.

The Daily Sun made the request on June 21. On July 25, the superintendent, as the school district clerk of records, responded that “on the advice of counsel” the report was exempt from disclosure because it is a personnel record.

The state’s right to know law, RSA 91-A, states in part that records are exempt from public access if they are, “pertaining to internal personnel practices; confidential, commercial, or financial information” or “personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.”

In August, The Daily Sun challenged the district’s denial in a complaint to the Right to Know Ombudsman, a quasi-judicial office that opened this year as a way for citizens to appeal a government body’s response to a records request with a more expedient option than a lawsuit. A hearing on the dispute was scheduled for Dec. 6.

Days before the hearing, the district requested a meeting with The Daily Sun to discuss disclosure of the document. During an interview on Dec. 5, the district provided an unredacted copy of the investigative report, accompanied by a four-page written statement, and answered questions about its content, context and public release.

The denial of the request on the advice of counsel was something school board Chair Jennifer Anderson emphasized was standard for all public records requests the district receives.

The right-to-know law hinges its penalties on whether “the public body, public agency, or person knew or should have known that the conduct engaged in was in violation of this chapter.”

The report was initially denied, Anderson said during the interview, because it was labeled confidential.

“I was really cognizant of the fact that it could have looked like the denial was coming in an effort to protect Steve [Tucker] — because the investigation is about him,” Anderson said. “[It was], from my perspective as the chair, more about the district's potential liability for the people who were interviewed being identified, whether or not they could then file a lawsuit against us for releasing it.”

In consultation with outside counsel, Anderson said, she became aware of changing legal standards in how the right-to-know law is applied.

Before a series of state Supreme Court rulings in recent years, any records related to misconduct or discipline of public officials was categorically exempt from disclosure as private, personnel information.

But two decisions of the New Hampshire Supreme Court in 2020, most relevantly Union Leader Corporation v. Town of Salem, set a new standard: municipalities and courts should perform a “balancing test” to determine whether a personnel record should be disclosed. This test involves weighing whether the public’s right to information about governmental bodies is greater than the governmental and individual privacy interests in nondisclosure.

Still with concerns about exposure of people referred to anonymously, Anderson said she came to the conclusion that a balancing test would come out in favor of releasing the report.

The chair does not have the final say over records requests for the school board; district policy makes the superintendent the custodian of all district records, including those of the school board.

The superintendent said during the interview that while he feels his privacy rights have weight, he “didn't want to be at odds with the board.”

The new legal precedent opens the door for greater public access by making it possible, on a case-by-case basis, for records about government officials and employees previously considered private information to be publicly accessible. While courts now use this new standard if dispute is challenged by a member of the public, it is also the standard municipalities are required to apply when they receive records requests.

The debate over this investigative report demonstrates how those “balancing tests” can become complicated for the officials tasked with performing them — when the person who is weighing the public interest in the document is someone whose private interest is at stake.