Those in New Hampshire who care about government transparency scored a significant success last week. In a pair of rulings issued on May 29, the state Supreme Court reexamined a 1993 ruling that state and local governments and agencies have come to hide behind far too readily in assuring that public light never shines on disciplinary investigations and other information regarding public employee misconduct. Instead, the public’s interest in the information must now be weighed before denying a disclosure request.
At issue was the interplay between two provisions of RSA 91-A, the state’s Right-to-Know Law, that restrict access to governmental records pertaining to “internal personnel practices” and “personnel files.” It has long been the case that public employees’ personnel files are not automatically exempt from disclosure. Rather, their disclosure is required if there is a public interest in them that outweighs the governmental or privacy interests at stake. The 1993 Supreme Court precedent, however, took an opposite tack with the internal personnel practices exemption and ruled that governmental records relating to those practices are exempt in all cases without regard to the public interest and that the internal disciplinary investigation of a Dover police lieutenant for alleged harassment in that case was a personnel practices document.
Relying on that ruling, governmental bodies and unions and others representing public employees have since come to regularly claim that any investigation or other report touching on personnel matters necessarily relates to personnel practices and must be kept under wraps, regardless of how compelling the public interest in it is. Recent examples in this region include requests for disclosure of internal investigations leading to the Winchester School District superintendent’s resignation in 2018 and the Peterborough recreation director’s termination last year, both of which were denied based on the personnel practices exemption.
If nothing else, the 1993 precedent provided simplicity: Did the investigation or other report touch on personnel matters? If yes, disclosure denied. Public authorities no doubt welcomed this bright-line test, but public transparency should not be sacrificed for simplicity’s sake. After all, the state Constitution commands that government “should be open, accessible, accountable and responsive,” and in its preamble the Right-to-Know Law unequivocally states one of its purposes is to ensure “the greatest possible public access to the ... records of all public bodies,” in the interest of assuring “their accountability to the people.”
Strong words indeed, and the court long made clear that 91-A must be construed broadly to favor disclosure and its exemptions interpreted restrictively. Consequently, in subsequent decisions, the court grew uncomfortable with the 1993 personnel practices decision and came to see it as an outlier. Friday, it abandoned the precedent entirely.
First, in a case seeking disclosure of an arbitration decision concerning the termination of a Portsmouth police officer, it ruled that the personnel practices exemption applies to internal human resources-type rules and practices and not “information concerning the performance of a particular employee.” Instead, it said, “records documenting the history or performance of a particular employee,” like the Portsmouth arbitration decision, are to be treated under the Right-to-Know Law as personnel files. Thus, they must be analyzed for whether the public interest in disclosure outweighs individual privacy and governmental nondisclosure interests.
In last week’s second case, involving an extensive audit of the Salem Police Department, the court further abandoned the 1993 precedent, ruling that even if a government seeks nondisclosure of records that fit within the now more limited meaning of “internal personnel practices,” the same balancing test must be applied as for personnel files.
Taken together, the court’s rulings last week do not mean that internal investigations, audits or other reports become subject to public disclosure without considering any individual privacy or government interest in withholding the information. Instead, such reports are no longer automatically exempt and the public interest in their disclosure now becomes an essential factor in the determination.
The rulings are a welcome recognition of how important these reports can be to the public’s understanding of the way its government and those employed by it at taxpayer expense are functioning. As the court observed in case of the Portsmouth arbitration, the public has a “significant interest in learning about how its public officials resolve matters involving alleged breaches of trust and conflicts of interest by public employees.”
While public bodies may rue that the prior bright-line test of the personnel practices exemption is now abandoned, the court has rightly acknowledged that the 1993 case “has proven to be an unwarranted constraint on a transparent government.” Last week’s rulings are indeed a significant step toward assuring the public that documents that should be public become public.