State Supreme Court rules in favor of two media organizations

CONCORD — The New Hampshire Supreme Court on Friday found in favor of two news media organizations requesting police-related records, and in doing so, overruled its decision in a 1993 right-to-know law case that broadly allowed government agencies to withhold information.

“The people of New Hampshire are the real winners today,” said Richard C. Gagliuso, an attorney on one of the cases. “The public’s right to know about how its government operates is one of the bedrock principles of our state Constitution.

“The NH Supreme Court today took a bold step in favor of ensuring that essential right, overruling a line of cases that had stood for 30 years. In doing so, it not only corrected a clear error but eliminated the grounds most often cited by public agencies for withholding a wide swath of public records from public view.”

Government agencies have used an “internal personnel practices" exemption in the law to withhold information, such as police officer misconduct or how a school district responded to allegations of sexual abuse by a former teacher, said the ACLU of New Hampshire, which was a co-counsel in the cases.

The state Supreme Court said its 1993 decision “broadly interpreted" that exemption and overruled prior decisions to the extent that they relied on that broad interpretation. It also overruled prior decisions that applied a rule saying records related to “internal personnel practices" are exempt from disclosure.

One justice, Anna Barbara Hantz Marconi, issued separate opinions in which she did not see a need to overrule the 1993 case.

Gilles Bissonnette of the ACLU of New Hampshire said the rulings have “restored the promises of transparency and accountability" in the right-to-know law and state constitution.

“We brought these cases because government entities were routinely using this exemption to withhold information from the public,” he said.

Bissonnette said in a legal brief that government agencies such as Salem, the Concord School District and others use the internal personnel practices exemption “as an escape hatch to hide volumes of information concerning government employees, including potential misconduct, that would allow the public to hold the government accountable.”

In the case of the school district, he said it refused to release portions of a September 23, 2019, 100-page report submitted to the Concord School Board by an investigator hired to examine the District’s response to complaints of inappropriate sexual behavior by a former teacher.

The opinions by the state Supreme Court were in cases involving the Union Leader Corporation, which sought unredacted audits of the Salem Police Department, and Seacoast Newspapers Inc., which requested an arbitration decision on a fired Portsmouth police officer.

The cases were sent back to lower courts for reconsideration.