STATE OF NEW HAMPSHIRE

SUPREME COURT

No. 2015-0499

Thomas Reid

v.

New Hampshire Attorney General

APPEAL PURSUANT TO RULE 7 FROM A JUDGMENT OF THE

MERRIMACK COUNTY SUPERIOR COURT

BRIEF FOR NEW HAMPSHIRE ATTORNEY GENERAL

JOSEPH A. FOSTER Attorney General Francis C. Fredericks, Bar No. 21161 Assistant Attorney General Nancy Smith, Bar No. 9085 Senior Assistant Attorney General Civil Bureau NH Department of Justice 33 Capitol Street Concord, NH 03301-6397 (603) 271-3671 (15 minutes)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

ISSUE PRESENTED ...................................................................................................................... 1

STATEMENT OF THE CASE AND FACTS ............................................................................... 2

A. Receipt of Right-to-Know Requests Pertaining to the Reams Investigation and the Filing

of Appellant’s Right-to-Know Action .................................................................................. 2

B. The AGO’s Redaction Affidavit and Appellant’s Motions to Compel ................................ 6

SUMMARY OF THE ARGUMENT ............................................................................................. 7

ARGUMENT .................................................................................................................................. 8

I. STANDARD OF REVIEW .................................................................................................. 8

II. THE TRIAL COURT CORRECTLY HELD THAT PORTIONS OF THE AGO’S

INVESTIGATION WERE RECORDS RELATED TO PERSONNEL PRACTICES

THAT ARE EXEMPT FROM DISCLOSURE UNDER RSA 91-A:5, IV. ....................... 8

A. Appellant’s Interpretation Is Not Supported by RSA 91-A:5, IV’s Text. .................... 9

B. Contrary to Appellant’s Contention, The Fact That the AGO Conducted the

Investigation Does Not Cause the Records at Issue to Lose Their Status As

Personnel-Related Records. ........................................................................................ 11

C. The AGO’s Reams Investigation was Conducted with Rockingham County ............ 17

III. THE TRIAL COURT’S INTERPRETATION OF RSA 91-A:5, IV DOES NOT

VIOLATE PART I, ARTICLE 8 OF THE NEW HAMPSHIRE CONSTITUTION AND

THE ISSUE IS NOT PRESERVED FOR APPELLATE REVIEW. ................................. 18

CONCLUSION ............................................................................................................................. 21

ORAL ARGUMENT .................................................................................................................... 21

CERTIFICATION ........................................................................................................................ 22

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TABLE OF AUTHORITIES

Cases

38 Endicott St. N., LLC v. State Fire Marshal, 163 N.H. 656, (2012) ................................... 13, 14

Appeal of AlphaDirections, 152 N.H. 477 (2005) ........................................................................ 20

Bd. of Trustees of N.H. Judicial Ret. Plan v. Sec'y of State, 161 N.H. 49 (2010) ........................ 20

Eby v. State, 166 N.H. 321 (2014) ................................................................................................ 20

Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006) ............................................ passim

Lennartz v. Oak Point Assocs., P.A., 167 N.H. 459 (2015) .......................................................... 20

Mans v. Lebanon School Bd. 112 N.H. 160 (1972) ...................................................................... 11

Murray v. N.H. Div. of State Police, 154 N.H. 579 (2006) .......................................................... 14

New Hampshire Civil Liberties Union v. City of Manchester, 149 N.H. 437 (2003) ..................... 8

State Emps’ Assoc. of N.H. v. State of N.H., 161 N.H. 730 (2011) ................................................ 8

State v. Exxon Mobil Corp., _ N.H. _, 2015 N.H. LEXIS 108 at 7–8 (2015)............................... 19

Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993) .................................................... 9, 16, 21

Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673 (2011) ............................................ 11

Union Leader Corp. v. New Hampshire Housing Fin. Auth., 142 N.H. 540 (1997) ...................... 9

Weare Land Use Ass'n v. Weare, 153 N.H. 510 (2006) .................................................................. 8

Whittingham v. Amherst Coll., 164 F.R.D. 124 (D. Mass. 1995) ................................................. 11

Constitutional Provisions

N.H. CONST., pt. I, art. 8 ....................................................................................................... 19, 20

Statutes

RSA 7:6 ................................................................................................................................... 15, 17

RSA 7:11 ....................................................................................................................................... 15

RSA 7:34 ................................................................................................................................. 15, 17

RSA 91-A............................................................................................................................... passim

RSA 91-A:1 .................................................................................................................................... 8

RSA 91-A:4 .................................................................................................................................... 5

RSA 91-A:5 .............................................................................................................................. 6, 19

RSA 91-A:5, IV ..................................................................................................................... passim

RSA 661:9, IV .............................................................................................................................. 15

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ISSUE PRESENTED

1. Whether the trial court correctly held that the Attorney General’s Office (“AGO”)

properly redacted personnel-related information contained in its document production response

to Appellant’s request for records under RSA chapter 91-A?

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STATEMENT OF THE CASE AND FACTS

A. Receipt of Right-to-Know Requests Pertaining to the Reams Investigation and

the Filing of Appellant’s Right-to-Know Action

On April 17, 2014, Appellant, Thomas Reid, former Deputy Rockingham County

Attorney1 under Former Rockingham County Attorney, James Reams (“Reams”), sent the

Attorney General a letter posing multiple legal questions regarding the AGOs investigation into

Reams’s operation of the Rockingham County Attorney’s Office (“RCAO”). See e.g. App. at

232 (“What is the threshold that you believe must be met before removing an elected official or a

Police Chief?”). The body of the letter also included extensive requests for records and other

information. See e.g. id (“Please provide me with any and all information, documents and

records that justified the assignment of a State Trooper to the County Courthouse for the evening

and night of Nov. 6 to Nov. 7 . . .). Appellant placed specific emphasis on information and

records pertaining to: 1) the Attorney General’s suspension of Appellant’s law enforcement

authority; 2) instances of discrimination at the RCAO; and 3) incidents of retaliation by Reams

against RCAO employees in 2012. Id. at 23–26; AB at 9. Finally, Appellant indicated that he

was “also requesting a copy of all investigative materials.” SA at 34.

On April 24, 2014, Deputy Attorney General, Ann Rice, replied to Appellant’s April 17,

2014 correspondence via a letter that stated that it would take the AGO a minimum of 30 days to

respond to Appellant’s records request. SA 36; see AB at 10. That same date, Appellant sent

another letter to the Attorney General expressing his views on the Reams matter and posing the

question of “whether [the AGO] thoroughly investigated an allegation, or . . . simply attempted

1 Appellant resigned from his position as Deputy County Attorney in January of 2014. See SA 66.

2 In this brief, “App.” refers to the Appellant’s Appendix, “SA” refers to the State’s Appendix, “AB” refers to the Appellant’s Brief, “TI” refers to the transcript of the October 27, 2014 hearing, and TII refers to the transcript of the November 14, 2014 hearing.

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to solicit and collect allegations without subjecting them to proper scrutiny.” App. 30. The letter

also included a right-to-know request seeking records related to specific allegations contained in

the Reams complaint for removal that the AGO and the Rockingham County Commissioners

jointly filed in the Merrimack County Superior Court in March of 2014. Id. at 31–32.

On May 1, 2014, Ann Rice replied to Appellant’s April 24, 2014 letter and explained that

many of the records identified in Appellant’s second request would be included in the records he

requested on April 17, 2014. SA 49–50. Deputy Attorney General Rice also reiterated that it

would take the AGO a minimum of 30 days to compile the records. Id.

In addition to the requests received from Appellant, the AGO received extensive right-to-

know requests from other individuals that related to the Reams investigation. Specifically, on

May 5, 2014, and on June 17, 2014, the AGO’s Criminal Bureau Chief, Jane Young, received

right-to-know requests seeking records related to the AGO’s Reams investigation. SA 104, ¶ 11;

108. Kathy Amar, the AGO paralegal responsible for processing right-to-know requests,

responded to the May 5 request, stating that it would take 90 to 120 days to compile the

responsive documents. In response to the June 17 request, Ms. Amar stated that a response

would take three to six months. SA 104, ¶ 11; 108; 109.3

Much of the documentation underlying the Reams investigation consisted of interviews

that were tape recorded and then transcribed internally at the AGO. See SA 114, ¶¶ 4–7. Once

the pending litigation between Reams and the AGO concluded in mid-June 2014, the AGO

began to fully process the documentation necessary to respond to the Reams-related RSA chapter

91-A requests that it had received, including Appellant’s. At that time a substantial portion of

the more than 100 interviews had not yet been transcribed, and those that were transcribed had

not undergone a review for accuracy. SA 114, ¶¶ 4–7. Kathy Amar obtained an estimate that it

3 The AGO received additional right-to-know requests pertaining to the Reams investigation. SA 104–05, ¶¶ 11, 12.

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would have cost at least $11,628.00 for professional transcription of the recordings. SA 105, ¶

14. Once it was determined that the cost of sending out the recordings for professional

transcription was more than the requesters, even as a group, were likely to be willing to pay, the

digital recordings were distributed to at least 8 of the 14 AGO secretaries for transcribing. See

SA 114, ¶¶ 4–7. The secretaries diligently completed these transcripts in between their other

vital tasks for the Office. The AGO staff completed the transcripts in September 2014, and the

AGO then began its review for accuracy. Id. at ¶ 6.

On October 23, 2014, the AGO sent an updated letter to the individual who filed the May

5, 2014 right-to-know request stating that the production of records would take an additional six

months. SA 111. Although the AGO was working on Appellant’s right-to-know request in the

summer and fall of 2014, the AGO unintentionally did not send Appellant follow-up

correspondence updating him on the additional time that it would take to complete his right-to-

know request. SA at 104, ¶ 10; TI at 26:6–12. Appellant did not reach out to the AGO after

May 2014 to inquire into the status of his requests or to notify the AGO of his discontent with

the AGO’s communication regarding the status of his requests.

On October 10, 2014, Appellant filed a complaint with the trial court requesting the

documents sought in his April 2014 letters to the AGO. SA 1–51. In responding to Appellant’s

complaint, the AGO acknowledged that Appellant should have received a further communication

on or about May 24, 2014 from Ms. Amar, who at that point had received his request and had

added it to her queue. Id. at 60. The AGO explained that the lack of a follow-up letter to

Appellant was an unintentional oversight resulting from a miscommunication related to

Appellant sending his request to the AGO’s front office, where it was originally responded to, as

opposed to the other, related right-to-know requests, which were processed by the Criminal

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Bureau. Id. Acknowledging the lack of follow-up, the AGO informed the trial court that it

would pay the cost of Appellant’s filing fee in the matter. Id. at 62–63.

In explaining to the trial court why it needed several months to respond to the Reams-

related requests, and in outlining its plan for completion of its response, the AGO stated:

Here, there are at least 103 interviews of 74 different witnesses. The duration of the interviews range from 30 minutes to 6 hours in one day. There are more than 92 hours of recordings that needed to be transcribed and reviewed. These transcripts total at least 2,907 pages. Each of the transcripts has had to be reviewed for accuracy. More than 17 attorneys, paralegals, secretaries, and investigators throughout the Office have been and are working on this project. It is expected that the accuracy review of the transcripts will be completed on or before October 30, 2014. More than 70 interviews have already had their review completed and are being corrected prior to redaction. It is expected that rolling production will begin by December 15, 2014 and be completed by January 30, 2015. In this time period, the Criminal Bureau has also completed several major first degree homicide trials, responded to a large number of sudden death investigation calls and begun investigations as needed in those matters, as well as several other public integrity issues. As a result of the burdens on the Criminal Bureau, other staff from throughout the AGO have assisted with these reviews. There simply have not been resources to complete this request any sooner and, therefore, the AGO is and will respond to the requests for the Reams investigation materials within the time that is reasonably necessary.

SA 60–61 (citations omitted).

On January 14, 2015, the trial court issued an order on Appellant’s right-to-know

complaint. The court concluded that the AGO’s lack of follow-up with Appellant once its 30-

day estimate expired was in violation of RSA 91-A:4. Ord. Jan. 14, 2015 at 3. Noting that the

AGO began its rolling production of documents in December 2014, the trial court deemed

injunctive relief regarding document production to be moot. Id. at 4. As to the issue of the

appropriateness of the redactions made by the AGO, the trial court declined the AGO’s request

that it complete an in camera review of the redactions, and, instead, ordered the AGO to

complete a “thorough affidavit” to support its redactions and stated that “upon review of this

affidavit, the court will determine whether the defendant has sustained its burden of proof.” Id.

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Finally, the trial court found that the AGO did not act in bad faith in failing to respond to

Appellant’s request and, therefore, the trial court declined to impose a civil penalty. Id. at 5.

The trial court awarded Appellant costs associated with filing his action. Id.

B. The AGO’s Redaction Affidavit and Appellant’s Motions to Compel

On February 13, 2015, the AGO filed a Final Status Report, Affidavit, and Request for

Dismissal with the trial court. SA 118–63. In this pleading the AGO summarized its three

rolling productions to Appellant, made on December 16, 2014, January 16, 2015, and February

5, 2015. Id. at 118–19. The AGO also included a detailed affidavit completed by Associate

Attorney General, Anne Edwards, in response to the trial court’s January 15, 2015 order. The

affidavit included a 16-page index that contained a master list of Bates-numbered documents

produced to Appellant. The index also indicated whether the Bates ranges produced included

redactions and, if so, which RSA 91-A:5 exemption justified the redacted text, as well as any

Bates pages withheld entirely. SA 148–68. Through this pleading, affidavit, and index, the

AGO had now fully responded to Appellant’s requests as well as the trial court’s January 15,

2015 order and, thus, the AGO requested that the trial court dismiss the matter. Id. at 119.

On February 23, 2015, Appellant objected to the AGO’s final status report and requested,

inter alia, that the trial court permit him an additional 20 days to review the AGO’s production

and provide further response. SA 169–82. Through an order on March 2, 2015, the trial court

granted only Appellant’s request for an additional 20 days to review the production. Id. at 183.

On March 23, 2015, Appellant filed two motions to compel—one challenging the AGO’s

redactions premised on RSA 91-A:5, IV’s personnel exemptions and another seeking a more

detailed index. SA 184–94; 195–205. The AGO objected to both motions. SA 298–318.

On July 10, 2015, the trial court denied both of Appellant’s motions to compel. Ord. July

10, 2015 at 7. In doing so, the trial court found that the sections of witness interviews pertaining

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to allegations of workplace sexual harassment, hostile work environment, and gender

discrimination were exempt from disclosure, and that to adopt the Appellant’s position that

personnel records are only exempt when held by an employer “would deter the reporting of

misconduct by public employees, or participation in such investigations because an employee

would fear public embarrassment, humiliation, or retaliation from disclosure of such information

to the public.” Id. at 4–5. The trial court also explained that “the protection afforded by the

personnel exemption is not meant to benefit the employer—it is for the protection of the

employee.” Id. at 4. Further, the trial court denied Appellant’s motion to compel a more

detailed index concluding that the index provided by the AGO, which identified more than 7,000

pages of documents, satisfied the court’s previous order requiring the production of the index.

Id. at 6–7. This appeal followed.

SUMMARY OF THE ARGUMENT

The AGO properly redacted personnel-related information from its investigatory

documents as required by RSA 91-A:5, IV, which categorically exempts records pertaining to

personnel practices and personnel files from disclosure. Appellant’s argument that only the

employer of the employee whose personnel records are at issue can invoke the personnel records

exemptions is unjustifiably narrow. Appellant’s interpretation fails to afford due consideration

to the substance of the personnel information at issue and the privacy rights of employees, and

opts instead for an automatic and categorical rule of disclosure of confidential personnel

information in any case in which an employee’s personnel information is provided to or shared

with another governmental entity. The interpretation lacks both textual and analytic support and

would deter employees from participating in inter-governmental investigations. Thus, the trial

court correctly denied Appellant’s motion to compel production of this personnel-related

information in unredacted form.

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ARGUMENT

I. STANDARD OF REVIEW

This Court is the “final arbiter of the meaning of a statute as expressed by the words of

the statute itself.” Weare Land Use Ass'n v. Weare, 153 N.H. 510, 511 (2006). The

interpretation of a statute “is a question of law, which [this Court] review[s] de novo.” State

Emps’ Assoc. of N.H. v. State of N.H., 161 N.H. 730, 738 (2011). The Court first looks to the

“plain and ordinary meaning of the words used in the statute and will not examine legislative

history unless the statutory language is ambiguous, consider what the legislature might have said,

or add words not included in the statute.” Weare Land Use Ass'n, 153 N.H. at 511–12. The

Court will interpret a statute to lead to a “reasonable result and review a particular provision, not

in isolation, but together with all associated sections.” Id. In interpreting a statute the Court

seeks to “effectuate its overall purpose and avoid an absurd or unjust result.” See State Emps’

Assoc., 161 N.H. at 738.

II. THE TRIAL COURT CORRECTLY HELD THAT PORTIONS OF THE AGO’S

INVESTIGATION WERE RECORDS RELATED TO PERSONNEL PRACTICES

THAT ARE EXEMPT FROM DISCLOSURE UNDER RSA 91-A:5, IV.

The purpose of RSA chapter 91-A is to ensure the “greatest possible public access to the

actions, discussions and records of all public bodies . . . .” RSA 91-A:1; see New Hampshire

Civil Liberties Union v. City of Manchester, 149 N.H. 437, 438 (2003). “That purpose, however,

is not fostered by disclosure of information about private citizens that is accumulated in various

government files but reveals little or nothing about an agency’s own conduct.” Union Leader

Corp. v. New Hampshire Housing Fin. Auth., 142 N.H. 540, 554 (1997) (citation omitted).

Appellant’s primary contention is that RSA 91-A:5, IV does not permit the AGO to

redact sections of witness interview transcripts that pertain to personnel matters within the

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RCAO, such as allegations of gender discrimination, employee discipline, and retaliation

because, according to Appellant, the personnel exemptions contained in the statute only apply to

records when held by the employer of the individual whose personnel records are at issue, which,

here, the AGO was not. AB 18. Appellant argues that RSA 91-A:5, IV’s use of the word

“internal” indicates that the exemption only applies when the pertinent right-to-know request is

made to the actual employer and, therefore, that individuals’ personnel information is not exempt

“if discussed or recorded in other files, or by other entities.” Id. As the trial court concluded,

Appellant’s interpretation of the statute is incorrect for multiple reasons.

A. Appellant’s Interpretation Is Not Supported by RSA 91-A:5, IV’s Text.

RSA 91-A:5, IV expressly exempts from disclosure “records pertaining to internal

personnel practices” as well as employees’ personnel files. As to this exemption’s application,

this Court has stated that “the plain meanings of the words ‘internal,’ ‘personnel,’ and ‘practices’

are themselves quite broad . . .” and that these types of records are “categorically exempt” from

production under RSA chapter 91-A. Union Leader Corp. v. Fenniman, 136 N.H. 624, 626–27

(1993) (emphasis added).

Here, Appellant does not dispute that records regarding internal personnel practices are

exempt from disclosure when the information is kept by the individual’s employer. AB at 18.

Rather, Appellant contends that the instant investigation, which the AGO led, was not “internal”

and, therefore, regardless of the substance of the personnel practices discussed, personnel actions

taken, and documents acquired, the statute’s personnel exemptions do not apply. Specifically,

Appellant contends that because the AGO was not the employer of the County Attorney or the

RCAO personnel who participated in the investigation, the AGO’s investigation into that office’s

internal personnel practices was not actually “internal” within the meaning of the exemption. Id.

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Appellant’s interpretation of RSA 91-A:5, IV unnecessarily fixates upon the mode

through which the confidential personnel information was obtained as opposed to the actual

substance of the personnel information at issue. While the RSA 91-A:5, IV personnel exemption

does contain the word “internal” in its reference to exempt personnel practice-related records, the

statute assigns no relevance to the means by which the categorically-exempt information

regarding internal practices makes its way into a governmental record or what entity physically

holds the record. Further, an investigation may serve multiple purposes without losing the

exemption, such as the investigation in this case, which served both a potential criminal

investigation function and a personnel function. See TII at 36.

Appellant states that: “It is not disputed that an agency’s personnel files are exempt. It

does not follow, however, that all information contained within or referenced within a personnel

file is similarly exempt if discussed or recorded in other files or by other entities.” AB at 18.

Thus, Appellant argues that it is not the substance of the personnel records that makes them

exempt, but rather, the physical means by which the governmental record exists. See id.

According to Appellant’s theory, a letter of counseling or other disciplinary statement from an

employer to employee is exempt only if located in the employee’s personnel file, but becomes

available to the public if acquired by the AGO or other investigating agency that is looking into

the employer’s personnel practices. This position runs contrary to reason as the substance of the

record remains personnel in nature regardless of where it is physically located.

A plain reading of RSA 91-A:5, IV, which also exempts financial, medical, and welfare

records, as well as “other files whose disclosure would constitute invasion of privacy[,]”

indicates that the legislature exempted personnel-related records and several other categories of

records based on individuals’ privacy interests. These privacy interests are not enhanced by

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Appellant’s interpretation, which would make personnel information publically available simply

because, for some reason, the document appears in another file or in the possession of another

governmental entity. See Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 679 (2011)

(stating that RSA 91-A:5, IV “means that financial information and personnel files and other

information necessary to an individual’s privacy need not be disclosed.”) (quoting Mans v.

Lebanon School Bd. 112 N.H. 160, 162 (1972)); cf. Whittingham v. Amherst Coll., 164 F.R.D.

124, 127 (D. Mass. 1995) (“personnel files contain perhaps the most private information about

an employee within the possession of an employer”).

B. Contrary to Appellant’s Contention, The Fact That the AGO Led the

Investigation Does Not Cause the Records at Issue to Lose Their Status As

Internal Personnel-Related Records.

Appellant discusses Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006) at

length and states that the opinion supports his interpretation of the statute. The opinion,

however, does not aid Appellant’s position. In Hounsell, the water precinct initiated, through

private legal counsel, an investigation into a personnel matter involving an individual named

Smith. Id. at 3. The Hounsell petitioner sought, through RSA chapter 91-A, a copy of records

relating to the Smith personnel investigation, and this Court concluded that these records were

exempt under RSA 91-A:5, IV’s personnel exemptions. Id. at 3–4.

Appellant distinguishes Hounsell from the present case on the basis that the personnel

investigation in that case was completed by private attorneys at the direction of the employer,

and here, the AGO, not the employer, directed the investigation. While this may be the case,

Hounsell does not establish, or even suggest, that the aspects of the AGO’s investigation that

pertained directly to RCAO’s internal personnel practices are not exempt. Thus, the issue at

hand in this matter was not before Hounsell Court.

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The AGO obtained the personnel information presently at issue largely through

interviews with present and former RCAO employees, and the personnel information provided

does not lose its “internal” status simply because the AGO conducted the interviews. The

redacted witness statements deal directly with RCAO’s internal personnel practices, records of

which are exempt under RSA 91-A:5, IV. The other aspects of the AGO’s investigation, such as

the records pertaining to the financial misconduct allegations, were produced to Appellant

without redaction. Many records produced to Appellant contained some disclosable information

or lines of questioning, which were not redacted. Other information was protected by RSA

chapter 91-A:5’s exemptions and, thus, the AGO redacted this material.4

Appellant uses a series of hypotheticals in an attempt to show that the trial court’s

interpretation of RSA 91-A:5, IV is unworkable. AB 20. Each of these hypotheticals is

inapposite. For example, Appellant argues that if there is an incident of workplace violence that

leads to both an internal personnel investigation and a law enforcement criminal investigation

into the same conduct, the trial court’s interpretation of RSA 91-A:5, IV would mandate that the

entire police investigation be exempt from disclosure as it pertains to the same subject matter as

a personnel investigation. The example is wholly distinguishable and, therefore, not relevant.

Unlike in Appellant’s hypothetical, the AGO’s RCAO investigation had multiple components,5

including alleged misuse of public funds. The personnel component of the investigation related

4 The AGO made redactions based on several RSA 91-A:5, IV exemptions, which Appellant has not challenged.

5 Appellant cites to a statement made by the AGO during a hearing before the superior court in which the AGO

stated that it did not keep separate criminal or civil files in this investigation, but rather, one file. AB 21–22. The AGO, however, clearly stated at an earlier point in the same hearing that “this was both an internal personnel investigation and a criminal investigation which the attorney general was doing. We do not agree with Mr. Reid's representation that the attorney general was not doing an internal personnel investigation when this was going on.” TII at 36:5–9. Moreover, the fact that the AGO kept one file for both the personnel and criminal components of the investigation does not support Appellant’s argument that any information gathered as to RCAO’s personnel-related practices must be disclosed.

13

to whether, due to Reams’s personnel-related actions, the workplace atmosphere of the RCAO

suffered to the point where it hindered the office’s effective prosecution of criminal cases.

Under Appellant’s workplace violence hypothetical, the personnel investigation would be

exempt as it is a personnel record, but the police investigation would not necessarily be exempt

as it is criminal and, presumably, would deal with the facts of the crime, and not, as in the instant

case, the employer’s internal personnel practices themselves.6

Moreover, Appellant’s hypothetical incorrectly implies that investigations by law

enforcement are entirely public. In 38 Endicott St. N., LLC v. State Fire Marshal, 163 N.H. 656,

660 (2012), this Court examined the boundaries of the “complied for law enforcement purposes”

exception to RSA chapter 91-A, which includes information that “could reasonably be expected

to constitute an unwarranted invasion of privacy.” Id. at 661. Thus, not only does Appellant’s

hypothetical lack relevance due to its factual distinction from the present case, it also fails to

acknowledge that investigations of all types are subject to substance-based exemptions from

disclosure when dealing with private or otherwise sensitive information. Importantly, this Court

explained in 38 Endicott St. N., that “the exemption [at issue in that case] d[id] not apply

exclusively to law enforcement officers or agencies, but rather applies to all records and

information compiled, by any type of agency, for law enforcement purposes.” Id. at 661–62

(emphasis in original) (citing Murray v. N.H. Div. of State Police, 154 N.H. 579, 582 (2006)).

Thus, this Court’s past reasoning indicates that the applicability of right-to-know law exemptions

turn on more than just the question of who is holder of the information sought and, instead, focus

6 Appellant’s other hypotheticals such as the employee stealing from the employer and a workplace threat or assault suffer from the same infirmities. Each involves conduct of the employee being identical in both the criminal and personnel investigation. Here, the AGO was not investigating the employees who discussed RCAO’s personnel practices during their interviews. The AGO’s investigation was into the RCAO’s personnel practices themselves, and thus the investigation retained RSA 91-A:5, IV’s “internal” status. Contrastingly, Plaintiff’s hypotheticals focus on a police investigation of an employee’s potential criminal conduct in the workplace and do not in any way pertain to an employer’s or an employing entity’s personnel practices themselves.

14

on the substantive rationale as to why the specific type of information at issue is entitled to

protection from public disclosure.

In the present investigation, the AGO collected information regarding the RCAO’s

internal personnel practices generally as well as information related to specific individuals’

personnel issues. The investigation consisted of interviews with present and former employees

regarding the RCAO’s personnel practices, including discussion of particular instances of

conduct such as employee discipline and reports to the RCAO’s human resources office. Thus,

through this investigation, detailed confidential information regarding the RCAO’s “internal

personnel practices” and information contained in employees’ personnel files—all categorically

exempt under RSA 91-A:5, IV—came into the hands of the AGO. This transfer of personnel

information from the RCAO to the AGO does not alter the fact that the information is

substantively personnel in nature and, therefore, does not render RSA 91-A:5, IV inapplicable.

The statute does not provide that personnel records automatically and categorically lose their

exempt status once removed from the personnel file or the employer’s control and, thus, as the

trial court found, the AGO’s redactions are proper.

In arguing that the trial court’s ruling renders the statute’s use of the word “internal”

superfluous, Appellant fails to adequately consider the actual circumstances at hand in the

AGO’s investigation, specifically: 1) the AGO had supervisory authority over the RCAO

criminal cases and thus, to some extent, RCAO’s personnel that handle those cases; and 2) the

AGO’s involvement does not remove the “internal” status of an investigation that pertained

specifically to an employer’s “internal personnel practices.” See RSA 91-A:5, IV.

Under RSA 661:9, IV, “[a]ny officer of a county . . . may be removed by the superior

court for official misconduct.” While this statute indicates that only the superior court can

15

remove a County Attorney from office, it does not alter the fact that “[t]he county attorney of

each county shall be under the direction of the attorney general . . . .” RSA 7:34 (emphasis

added).7 Further, the Attorney General “shall have and exercise general supervision of the

criminal cases pending before the supreme and superior courts of the state . . . .” RSA 7:6

(emphasis added). Thus, the AGO has a significant level of authority over and interest in the

quality and efficiency of the County Attorneys’ prosecutions and, therefore, how their

prosecutors are supervised. Consequently, when serious issues arise regarding a County

Attorney’s internal personnel practices that call the office’s prosecutorial efficacy into question,

the AGO may investigate and, if necessary, seek removal in superior court under RSA 661:9, IV.

Thus, although lacking the ultimate power to remove the County Attorney, it does not follow that

the AGO’s investigation did not substantively pertain to RCAO’s “internal personnel practices”

as set forth in RSA 91-A:5, IV. Further, the instant investigation related, in part, to Reams’s

alleged misuse or abuse of his supervisory authority over criminal prosecutions by RCAO

employees. Therefore, Reams’s internal personnel policies and personnel actions toward RCAO

employees were valid areas of investigation, and the fact that the AGO’s investigation occurred

does not divest the affected RCAO employees of their right to have their personnel information

protected.

Appellant’s contention that, unless a personnel investigation is conducted by an employer

the personnel records acquired in the investigation are public, would significantly restrict what

this Court has acknowledged as a categorical exemption. See Union Leader Corp., 136 N.H. at

627. Appellant has not provided any rationale as to why information obtained in a personnel

7 See also RSA 7:11 (“Nothing herein contained shall relieve any officer or person of any duty prescribed by law relative to the enforcement of any criminal law, but such officer or person, in the enforcement of such law, shall be subject to the control of the attorney general whenever in the discretion of the latter he shall see fit to exercise the same.”) (emphasis added).

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investigation by an employer differs from that obtained by a personnel-related investigation by

an outside agency that has express statutory authority over the County Attorney. Put another

way, why should the affected employees’ privacy in their personnel records be eliminated simply

because the investigator who collects the personnel information is not their employer, but

instead, another governmental entity with a stake in the internal personnel practices of that

office? As the trial court expressed, the protection provided by the RSA chapter 91-A personnel

exemptions is not for the benefit of the employer, but for the benefit of protecting the privacy

rights of the employee. Appellant provides no reasoning as to why his extremely narrow and

overly-technical reading of the statute is warranted. As discussed above, the interests of the

AGO in the effective operation of the RCAO do not differ from the interests of an employer and,

therefore, there is no reason why the personnel information provided to the AGO in this case is

less worthy of the privacy afforded by RSA 91-A:5, IV.

Moreover, in Hounsell, supra, this Court credited the governmental defendant’s public

policy argument that the “disclosure of records underlying, or arising from, internal personnel

investigations would deter the reporting of misconduct by public employees, or participation in

such investigations, for fear of public embarrassment, humiliation, or even retaliation.” 154

N.H. at 5. As the trial court noted in this case, this policy rationale remains applicable regardless

of whether the entity investigating the personnel practices is the direct employer and, thus,

applies in this case. Notably, Appellant offers no explanation as to why these policies concerns

become unimportant and unnecessary when an outside, but statutorily interested, entity conducts

an investigation involving personnel matters.

With the AGO’s power of “general supervision” over the County Attorney’s criminal

prosecutions comes the authority to investigate personnel practices at a County Attorney’s office

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when there is an indication that management problems are hindering the office’s ability to

effectively serve its prosecutorial function for the State of New Hampshire. This is what

occurred in Rockingham County, and the AGO investigated the issue, as it was authorized to do.

Thus, not only are the personnel records at issue exempt by virtue of the fact that they are

substantively personnel in nature, but Appellant’s lone argument that the records are not exempt

because the AGO did not employ the witnesses at issue is also in error because an investigation

into management and operational issues that impact the office’s prosecutorial effectiveness is

within the AGO’s statutory authority. See RSA 7:6; 11; 34.

C. The AGO’s Reams Investigation was Conducted with Rockingham County

Appellant challenges the AGO’s assertion in its objection to Appellant’s motion to

compel that the AGO’s investigation was conducted jointly with Rockingham County. AB 22.

The argument is incorrect and, even if accepted, does not bear on the correctness of the trial

court’s interpretation of RSA 91-A:5, IV. The trial court referred to the investigation as a joint

investigation in its order and, as Appellant acknowledges, it is not clear whether this was even a

factor upon which the trial court based its decision. AB 22. While Appellant spends

considerable time attempting to demonstrate that the record fails to support that the investigation

was conducted jointly with the County, Appellant offers little in the way of explaining why this

is consequential to the trial court’s or this Court’s analysis. Although Appellant cites to

Hounsell’s conclusion that a third-party investigation at the direction of the employer retains its

“internal” characteristic, the AGO does not claim that the fact that the investigation was

conducted with Rockingham County is what justifies the application of RSA 91-A:5, IV’s

personnel exemptions. Hounsell, 154 N.H. at 3–4. As discussed above, it is the fact that

witnesses’ interview statements directly pertained to their experiences with RCAO’s internal

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personnel practices that renders sections of these interviews exempt from disclosure under RSA

91-A:5, IV. Put simply, whether or not the investigation was joint in nature is not the lynchpin

that Appellant perceives it to be as the substance of the redacted information is personnel-related,

and, thus, exempt.

In its objection to Appellant’s motion to compel the AGO did refer to its investigation as

a joint investigation with Rockingham County because this is how the AGO viewed its

investigation. While County officials did not participate in the questioning of witnesses, the

County agreed to prohibit Reams from entering the RCAO and placed Deputy County Attorney

Reid on administrative leave so as to facilitate the AGO’s fact gathering. See SA 319; 349

(indicating that the County Commissioners believed that they “were asked to assist and to

facilitate the investigation by (i) separating the County Attorney and Deputy County Attorney

from the County property and workplace, (ii) requesting a prompt return of any and all property

of the County and County Attorney’s office.”) (emphasis added). Further, in order to assist in

the investigation Rockingham County provided the AGO with access to personnel files and

human resources investigations. See SA 115. Moreover, the AGO and the County

Commissioners jointly petitioned for removal of Reams as County Attorney. SA 322, 346.

Therefore, the AGO’s investigation and ultimate action against Reams was, at the very least,

authorized by the County.

III. THE TRIAL COURT’S INTERPRETATION OF RSA 91-A:5, IV DOES NOT

VIOLATE PART I, ARTICLE 8 OF THE NEW HAMPSHIRE CONSTITUTION

AND THE ISSUE IS NOT PRESERVED FOR APPELLATE REVIEW.

Appellant contends that if the trial court’s interpretation of RSA 91-A:5, IV is accepted,

then the statutory provision is unconstitutional in violation of Part I, Article 8 of the New

Hampshire Constitution. AB 16 (“The superior court has excluded the records in accordance

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with RSA 91-A:5. In so much as 91-A:5 is preventing the public from gaining information about

the elected County Attorney, said provision is unconstitutional.”). This Court need not address

this issue because Appellant did not raise the issue before the trial court and, in any event, has

not adequately briefed the issue on appeal.

Appellant has not indicated where he raised with the trial court his contention that if RSA

91-A:5, IV is interpreted to support the AGO’s redactions, then the statute is unconstitutional.

See AB at 1 (citing his complaint and the transcript of the November 14, 2014, hearing as the

bases for the preservation of this issue despite the fact that the AGO did not complete its

redactions or provide them to Appellant until after he filed his complaint and after the November

14th hearing.). Appellant did not file any further pleadings with the trial court following the

denial of his motions to compel and, therefore, Appellant’s constitutional challenge to RSA 91-

A:5, IV is not preserved for this Court’s review. State v. Exxon Mobil Corp., _ N.H. _, 2015

N.H. LEXIS 108 at 7–8 (2015) (“The appealing party bears the burden of demonstrating that it

“specifically raised the arguments articulated in [its appellate] brief before the trial court.

Generally, the failure to do so bars a party from raising such claims on appeal.”) (internal citation

and quotation marks omitted).

Further, even if this Court finds that Appellant did preserve his constitutional challenge to

RSA 91-A:5, IV, Appellant has not adequately briefed the issue before this Court. Aside from

an explanation of why the AGO’s decision to seek the removal of Reams was significant and

several comments implying impropriety in the AGO’s investigation, Appellant does not make a

meaningful effort to argue that RSA 91-A:5, IV, as applied here, is unconstitutional under Part I,

Article 8. Appellant does not provide this Court with a legal standard upon which to assess a

violation of Part I, Article 8, but rather, makes several blanket legal conclusions such as “[t]he

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Attorney General removed an elected official without due process[]” and “[t]he public’s access

to these important records has been unreasonably restricted.” AB at 17. Because Appellant has

not sufficiently developed his constitutional challenge for appellate review, this Court should

deem the argument waived. Appeal of AlphaDirections, 152 N.H. 477, 483–84 (2005) (finding

constitutional argument not adequately briefed and, therefore, declining to address it on appeal).

Finally, if the Court does consider Appellant’s limited comments regarding the

constitutionality of RSA 91-A:5, IV’s personnel exemptions, the assertions fail on the merits.

Whether a statute is constitutional is a question of law, which the Court reviews de novo. The

Court presumes that the statute is constitutional and will not declare it invalid except upon

inescapable grounds. Lennartz v. Oak Point Assocs., P.A., 167 N.H. 459, 462 (2015). “When

doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its

constitutionality.” Bd. of Trustees of N.H. Judicial Ret. Plan v. Sec'y of State, 161 N.H. 49, 53

(2010). An as applied challenge “concedes that the statute may be constitutional in many of its

applications, but contends that it is not so under the particular circumstances of the case.” Eby v.

State, 166 N.H. 321, 327 (2014) (quotation omitted).

Part I, Article 8 provides in part that “the public’s right of access to governmental

proceedings and records shall not be unreasonably restricted.” N.H. CONST. pt. I, art. 8.

Through RSA chapter 91-A, the legislature gave structure to and placed reasonable restriction on

the public’s right of access to government records and proceedings. See generally RSA ch. 91-

A. Appellant seems to argue that because the interviewed witnesses’ discussions of RCAO’s

internal personnel practices were a factor in the AGO’s and the County’s decision to take legal

action against Reams, an elected official, the full transcripts must be disclosed automatically

without any restriction. See AB 15–16. Appellant’s argument does not give any consideration to

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the privacy rights of the former and present RCAO employees who provided their personnel

information, including allegations of sexual harassment, pregnancy discrimination, discipline,

and retaliation to AGO investigators.

Further, while Appellant notes the significance of the AGO’s investigation and explains

in some detail why he believes the public is entitled to this personnel information, the fact

remains that the RSA chapter 91-A requestor’s rationale for seeking records is not relevant to

whether a categorical statutory exemption applies. In other words, RSA 91-A:5, IV’s statutory

exemptions do not apply less based on the perceived importance of the records sought. While

Appellant may view the chapter’s personnel exemptions as overly broad as applied to his

request, he does not justify his proposed analysis, in which he urges the Court to entirely

discount a statutory exemption that it has previously deemed categorical. See Union Leader

Corp., 136 N.H. at 627. For the reasons stated in detail above, RSA 91-A:5, IV validly exempts

employee’s personnel information from disclosure, even when it is provided to another

governmental entity that is investigating the personnel practices of the employer.

CONCLUSION

For the foregoing reasons the Attorney General respectfully requests that this Honorable

Court affirm the judgment below.

ORAL ARGUMENT

The State of New Hampshire requests a 15-minute oral argument. Attorney Francis C.

Fredericks will present oral argument in this case.