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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2015-0499

THOMAS REID

v.

NEW HAMPSHIRE ATTORNEY GENERAL

Argued: June 9, 2016

Opinion Issued: December 23, 2016

Reid Law, PLLC, of Concord (Thomas Reid on the brief and orally), for the 

plaintiff.

Joseph A. Foster, attorney general (Francis C. Fredericks, assistant 

attorney general, and Nancy Smith, senior assistant attorney general, on the 

brief, and Mr. Fredericks orally), for the defendant.

LYNN, J. The plaintiff, Thomas Reid, appeals the decision of the 

Superior Court (Smukler, J.) denying his petition under the Right-to-Know 

Law, RSA chapter 91-A, to compel the defendant, New Hampshire Attorney 

General Joseph Foster, to produce unredacted records of the Attorney 
2

General’s investigation into alleged wrongdoing by former Rockingham County 

Attorney James Reams. We vacate and remand.

I

The pertinent facts are as follows. Prior to November 6, 2013, the 

plaintiff served as the Deputy County Attorney for Rockingham County under 

County Attorney Reams. On that date, the defendant, claiming to act under 

authority granted by RSA 7:6 (2013), 7:11 (2013), and 7:34 (2013), suspended 

the criminal law enforcement authority of the county attorney. 

Simultaneously, the defendant placed the plaintiff on paid suspension. At the 

defendant’s request, the Rockingham County Commissioners barred Reams 

from entering his office. It appears from the plaintiff’s allegations and a 

memorandum of law filed by the county commissioners in a related case that 

the plaintiff also was barred from the Rockingham County Attorney’s Office at 

the defendant’s behest. Also at the defendant’s request, the superior court 

appointed an assistant attorney general to serve as interim county attorney for 

Rockingham County. See RSA 7:33 (2013). The defendant, acting in 

conjunction with the U.S. Attorney’s Office and the Federal Bureau of 

Investigation, conducted a criminal investigation of Reams that lasted until 

approximately March of 2014. The plaintiff resigned his position as deputy 

county attorney on January 17, 2014.

While the criminal investigation was ongoing, Reams instituted lawsuits 

against the defendant and the county commissioners, asserting that their 

actions were unlawful and seeking reinstatement to his position as county 

attorney and access to his office. Based, in part, on the ongoing criminal 

investigation, the Superior Court (McNamara, J.) denied Reams’s requests for 

preliminary injunctive relief and to conduct discovery.

On March 11, 2014, the defendant and the county commissioners filed a 

complaint asking the superior court to remove Reams from office pursuant to 

RSA 661:9, IV (2008). On March 26, the defendant informed the trial court 

that the criminal investigation had been concluded and that no criminal 

charges had been or would be brought against Reams. Because the criminal 

investigation was concluded, the trial court determined that there was no need 

for discovery in Reams’s lawsuits seeking reinstatement to office.

By order of April 10, 2014, the court ruled that Reams’s continued 

suspension from office was unlawful, and that he must be reinstated as 

Rockingham County Attorney and allowed access to his office. The court 

stayed its order for thirty days so as to permit the attorney general and the 

county commissioners to appeal and request a further stay from this court. 

The attorney general and the county commissioners did appeal to this court 
3

and sought an extension of the stay—relief which we denied.1 On June 18, 

2014, both proceedings were settled.

On April 17, 2014, the plaintiff submitted a request for disclosure of the 

defendant’s records concerning the investigation of Reams. Specifically, the 

plaintiff sought the following materials:

 investigative reports, interview notes, memos, emails, 

recordings or other records relied upon as the basis for 

suspending the plaintiff’s law enforcement authority;

 a recitation of all information possessed by the defendant on 

November 6, 2013, that led him to conclude that a criminal 

investigation of Reams should be initiated;

 all information, documents and records that justified the 

assignment of a state trooper to the Rockingham County 

Courthouse over the evening of November 6 - 7, 2013, to 

prevent tampering with records;

 information clarifying whether the county commissioners barred 

him from his office on their own initiative or at the request of 

the attorney general;

 copies of any and all warrants, consents, or reports pertaining 

to the search of the plaintiff’s office and the seizure of items 

therefrom, a listing of the seized items, and return of said items 

to the plaintiff;

 records, interviews or reports reflecting any acts of 

discrimination that occurred at the Rockingham County 

Attorney’s Office during the years 2012 and 2013;

 any and all information related to a 2012 call to the Attorney 

General’s Office by Rockingham County Commissioner Barrows 

with respect to a referral to the County Human Resources 

Department of a retaliation claim against a County Attorney’s 

Office employee for an earlier discrimination complaint made by 

the employee’s girlfriend (also a County Attorney’s Office 

employee) against Reams, as well as information concerning 

leaks about the Human Resources investigation made to the 

press and/or to State Representative Laura Pantelakos; and

 any and all documents, interviews or records showing that 

Reams had retaliated against any County Attorney’s Office 

 

1 See Rockingham County Attorney v. Rockingham County Commissioners; Rockingham County 

Attorney v. New Hampshire Attorney General, No. 2014-0247 (N.H. April 24, 2014). Our order 

did, however, stay processing of the appeal pending the conclusion of the removal action in the 

superior court. We ruled that if the court’s final decision in the removal action was appealed to 

this court, we would consolidate the appeals in both cases, and that if the removal action was not 

appealed, we would then reactivate the appeal in Case No. 2014-0247 at the request of the 

appellants.
4

employee as a result of the 2012 County Human Resources 

Department investigation or showing that there was reason to 

believe employees of the County Attorney’s Office would be 

retaliated against if Reams was allowed to return to his 

position.

In a second request to the defendant, dated April 24, 2014, the plaintiff 

sought additional materials, including:

 all records, reports or interviews related to Reams’s alleged 

modification of the supervisory duties of a County Attorney’s 

Office employee who, in 1999, had complained to the Attorney 

General’s Office about the sexual harassment of female 

employees by Reams, as well as records regarding Reams’s

alleged actions in causing this employee to be terminated from 

another job she held after leaving the County Attorney’s Office; 

and

 the return to the plaintiff of the personal and supervisory notes 

he had compiled during his tenure as Deputy County Attorney.

The defendant timely responded to the requests, indicating that he would 

require a minimum of 30 days to compile and review the requested records. 

See RSA 91-A:4, IV (2013). When no further response was received from the 

defendant for a period of approximately seven months, the plaintiff instituted 

the present action. The defendant moved to dismiss, acknowledging that he

had not timely supplemented his initial response, but arguing that he had 

otherwise acted reasonably and had not improperly withheld any information. 

The defendant represented that, as of December 20, 2014, he had begun the 

first phase of a “rolling production” of materials that consisted of the disclosure 

of 1293 pages of documents. The defendant requested that the court review in

camera materials that he had submitted or proposed to submit in redacted 

form, so as to determine the propriety of the redactions.

By order dated January 14, 2015, the trial court ruled that the defendant 

had violated the Right-to-Know Law by failing to timely supplement his

response to the plaintiff’s requests. As relief, the court awarded the plaintiff 

his costs. However, the court declined to review redacted documents in

camera. Instead, it directed the defendant to provide a “thorough affidavit” 

supporting his redactions, which the court indicated it would review to 

determine whether the defendant had sustained his burden of proof.2

 

2 The court also denied the plaintiff’s request for the assessment of a civil penalty, finding that the 

defendant had not acted in bad faith. In addition, the court denied the plaintiff’s request for 

attorney’s fees on the grounds that the plaintiff was self-represented.
5

The defendant responded by filing a final status report, affidavit, and 

request for dismissal on February 13, 2015. The affidavit, by Associate 

Attorney General Anne Edwards, identified the following nine legal bases upon 

which information had been withheld or redacted: (1) personnel information, 

under RSA 91-A:5, IV; (2) medical information, under RSA 91-A:5, IV; (3) grand 

jury records, under RSA 91-A:5, I; (4) financial information, under RSA 91-A:5, 

IV; (5) “[i]ndividual citizens’ private information,” the disclosure of which would 

constitute an invasion of privacy, under RSA 91-A:5, IV; (6) drafts, under RSA 

91-A:5, IX; (7) notes, under RSA 91-A:5, VIII; (8) attorney work product, under 

RSA 91-A:5, IV and VII; and (9) confidential records, under RSA 91-A:5, IV and 

RSA 651:5. A master list of Bates-numbered documents, submitted as an 

exhibit to the affidavit, indicated which one or more of the foregoing legal bases 

for exemption was claimed for each document or category of documents listed.

Finally, the defendant requested that the case be dismissed because, it 

claimed, it had “now responded fully to Mr. Reid’s request and the Court 

Order” of January 14, 2015.

The plaintiff objected, and requested, among other things, additional 

time “to review the voluminous materials and provide a more comprehensive 

status report.” The request for additional time was granted and, thereafter, the 

plaintiff filed a motion to compel production of a complete index of records and 

a motion to compel production of unredacted documents. In his motion to 

compel production of documents, the plaintiff specifically challenged only one 

of the defendant’s asserted bases of exemption; namely, the exemption claimed 

under RSA 91-A:5, IV for “personnel information.” The defendant objected to 

both motions.

On July 10, 2015, the trial court denied the plaintiff’s motions. The 

court denied the motion for production of a more detailed index “[b]ecause the 

defendant has already complied with a previous court order requiring 

production of an index.” It denied the motion to compel production of 

unredacted documents on the basis that the documents sought were exempt 

from disclosure under the Right-to-Know Law. Specifically, the court ruled:

Here, the records at issue relate to the defendant’s 

investigation into misconduct alleged to have been committed by 

Reams. This investigation, which was conducted jointly with 

Rockingham County, consisted of interviews with present and 

former employees. The subject directly involved the Rockingham 

County Attorney’s Office’s personnel practices, including specific 

instances of conduct involving employee discipline and certain 

reports to the Rockingham County . . . human resources office.

The court concluded that “[t]he defendant’s redactions fall within the purview 

of RSA 91-A:5, IV.” This appeal followed.
6

II

On appeal, the plaintiff argues: (1) that the trial court’s ruling violates 

Part I, Article 8 of the New Hampshire Constitution; (2) that the trial court 

erred in determining that the investigative records at issue were “[r]ecords 

pertaining to internal personnel practices,” RSA 91-A:5, IV (2013), because the 

attorney general’s investigation cannot be considered “internal”; and (3) that 

the trial court erred in finding that the attorney general’s investigation of 

Reams was “conducted jointly with Rockingham County.” “Because we decide 

cases on constitutional grounds only when necessary,” Chatman v. Strafford 

County, 163 N.H. 320, 322 (2012), we will first address the plaintiff’s second 

argument, which raises an issue of statutory interpretation.

The interpretation of a statute is to be decided ultimately by this 

court. The ordinary rules of statutory construction apply to our 

review of the Right-to-Know Law, and we accordingly look to the 

plain meaning of the words used. To advance the purposes of the 

Right-to-Know Law, we construe provisions favoring disclosure 

broadly and exemptions narrowly.

Union Leader Corp. v. City of Nashua, 141 N.H. 473, 475 (1996) (quotation and 

citations omitted).

At issue is the interpretation of RSA 91-A:5, IV, which provides, in 

pertinent part, an exemption from disclosure under the Right-to-Know Law for:

Records pertaining to internal personnel practices; confidential,

commercial, or financial information; test questions, scoring keys, 

and other examination data used to administer a licensing 

examination, examination for employment, or academic 

examinations; and personnel, medical, welfare, library user, 

videotape sale or rental, and other files whose disclosure would 

constitute invasion of privacy.

RSA 91-A:5, IV. The trial court, relying upon our decisions in Union Leader 

Corp. v. Fenniman, 136 N.H. 624 (1993), and Hounsell v. North Conway Water 

Precinct, 154 N.H. 1 (2006), found that the subject of the investigative records 

at issue “directly involved the Rockingham County Attorney’s Office’s personnel 

practices.”

The plaintiff argues that the trial court erroneously “applied a subject 

matter exemption contrary to the plain language of RSA 91-A:5[,] IV.” In 

particular, the plaintiff contends that the “operative term” in the exemption at 

issue is “internal,” and argues that the trial court both “failed to give weight” to 

that term and interpreted the statute so as to render the term superfluous.

Fundamentally, the plaintiff’s argument is that records of the defendant’s 
7

investigation of Reams do not “pertain[] to internal personnel practices,” RSA 

91-A:5, IV (emphasis added), because “[t]he Attorney General is simply not the 

County Attorney’s employer.” We agree with the plaintiff’s statutory 

interpretation and, therefore, we vacate and remand for further proceedings. 

To explain our reasoning, however, we must first examine the two cases upon 

which the trial court relied.

The first is Fenniman, in which the plaintiff sought the disclosure under 

the Right-to-Know Law of “certain investigatory documents under the control 

of” the Dover Police Department and its chief. Fenniman, 136 N.H. at 625. 

The documents had been “compiled during an internal investigation of a 

department lieutenant accused of making harassing phone calls.” Id. We held 

that the documents fell within the exemption for “[r]ecords pertaining to 

internal personnel practices” under RSA 91-A:5, IV. Id. at 626 (quotation 

omitted).

We noted that “[t]his particular portion of . . . [the statute had] not been 

construed by this court and is neither explained nor defined by the statute,” 

and, therefore, we relied upon the plain meaning of the words used. Id. We 

stated that “[a]lthough we generally interpret the exemptions in RSA chapter 

91-A restrictively to further the purposes of the Right-to-Know Law, the plain 

meanings of the words ‘internal,’ ‘personnel,’ and ‘practices’ are themselves 

quite broad.” Id. at 626 (citation omitted). But cf., e.g., Union Leader Corp. v. 

N.H. Housing Fin. Auth., 142 N.H. 540, 552 (1997) (stating that “[a]n expansive 

construction of the[] terms [‘confidential, commercial, or financial’ in RSA 91-

A:5, IV] must be avoided, since to do otherwise would allow the exemption to 

swallow the rule and is inconsistent with the purposes and objectives of RSA 

chapter 91-A” (quotation and brackets omitted)). We then concluded that the 

files at issue “plainly ‘pertain[] to internal personnel practices’ because they 

document procedures leading up to internal personnel discipline, a 

quintessential example of an internal personnel practice.” Fenniman, 136 N.H. 

at 626. We further held that “[a]lthough we have often applied a balancing test 

to judge whether the benefits of nondisclosure outweigh the benefits of 

disclosure, such an analysis is inappropriate where, as here, the legislature 

has plainly made its own determination that certain documents are 

categorically exempt.” Id. at 627 (citations omitted).

As the foregoing demonstrates, in interpreting the “internal personnel 

practices” exemption in Fenniman, we twice departed from our customary

Right-to-Know Law jurisprudence by declining to interpret the exemption 

narrowly and declining to employ a balancing test in determining whether to 

apply the exemption. In addition, we did not interpret the portion of RSA 91-

A:5, IV at issue in the context of the remainder of the statutory language—in 

particular, the language exempting “personnel . . . and other files whose 

disclosure would constitute invasion of privacy.” RSA 91-A:5, IV; see Appeal of 

Cover, 168 N.H. 614, 618 (2016) (noting that when interpreting a statute, “we 
8

do not consider words and phrases in isolation, but rather within the context of 

the statute as a whole” (quotation omitted)). Thus, we did not examine whether 

a broad, categorical interpretation of “internal personnel practices” might

render the exemption for “personnel . . . files whose disclosure would constitute 

invasion of privacy” in any way redundant or superfluous. See Winnacunnet 

Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525-26 (2002) (noting that 

“[w]hen construing a statute, we must give effect to all words in [the] statute 

and presume that the legislature did not enact superfluous or redundant 

words”); cf. Shapiro v. U.S. Dept. of Justice, 153 F. Supp. 3d 253, 280 (D.D.C. 

2016) (noting that “Exemption 6 [of the federal Freedom of Information Act], 

which shields ‘personnel and medical files and similar files the disclosure of 

which would constitute a clearly unwarranted invasion of personal [privacy]’ 

. . . would have little purpose if agencies could simply invoke Exemption 2 

[which shields, inter alia, records that relate solely to internal personnel rules 

and practices] to protect any records that are used only for ‘personnel’-related 

purposes”).

Moreover, although the practice of consulting decisions from other 

jurisdictions interpreting similar statutes is common in our Right-to-Know Law

jurisprudence, we did not conduct such an inquiry in Fenniman. See, e.g.,

Murray v. N.H. Div. of State Police, 154 N.H. 579, 581 (2006) (noting that in 

interpreting the Right-to-Know Law, “[w]e also look to the decisions of other 

jurisdictions, since other similar acts, because they are in pari materia, are 

interpretatively helpful, especially in understanding the necessary 

accommodation of the competing interests involved” (quotation omitted)).

Specifically, we have looked to federal law, see, e.g., Montenegro v. City of 

Dover, 162 N.H. 641, 650 (2011), having noted that “[t]he exemption provisions 

of our right-to-know law, RSA 91-A:5, IV (supp.), are similar to the Federal 

Freedom of Information Act, 5 U.S.C.A. [§] 552(b)(2), (4) and (6),” Mans v. 

Lebanon School Bd., 112 N.H. 160, 162-63 (1972).

The Freedom of Information Act (FOIA) exemption contained in 5 U.S.C.

§ 552(b)(2) is worded similarly to the portion of RSA 91-A:5, IV at issue here; 

specifically, it exempts from disclosure under the FOIA matters “related solely 

to the internal personnel rules and practices of an agency.” 5 U.S.C. 

§ 552(b)(2) (2012). Nevertheless, our construction of the “internal personnel 

practices” exemption in RSA 91-A:5, IV is markedly broader than the United 

States Supreme Court’s interpretation of that exemption’s federal counterpart. 

See Dept. of Air Force v. Rose, 425 U.S. 352, 369-70 (1976) (noting that “the 

general thrust of the [5 U.S.C. § 552(b)(2)] exemption is simply to relieve 

agencies of the burden of assembling and maintaining for public inspection 

matter in which the public could not reasonably be expected to have an 

interest”);3 Milner v. Department of Navy, 562 U.S. 562, 566 (2011) (reaffirming

 

3 The Rose Court relied upon the Senate Report on the bill enacted and codified as 5 U.S.C. 

§ 552(b)(2), Rose, 425 U.S. at 367, which gave, as examples of material covered by Exemption 
9

the narrow scope of Exemption 2 by rejecting a line of federal cases recognizing 

a so-called “High 2” exemption for “any predominantly internal materials whose 

disclosure would significantly risk circumvention of agency regulations or 

statutes” (quotations, citation, footnote and brackets omitted)).

4

We continued our broad interpretation of RSA 91-A:5, IV’s “internal 

personnel practices” exemption in the second case relied upon by the trial 

court: Hounsell v. North Conway Water Precinct. Hounsell involved a Right-toKnow Law request for an investigative report prepared for the defendant North 

Conway Water Precinct (precinct) by outside investigators. Hounsell, 154 N.H. 

at 2-3. Specifically, following an allegation by a precinct employee “that he had 

been threatened and harassed by a co-worker,” the precinct’s legal counsel 

“retained Jack Hunt and John Alfano to investigate the complaint.” Id. at 2. 

Hunt and Alfano interviewed precinct employees and then “prepared a report in 

which they summarized the investigation and made findings and 

recommendations (Hunt-Alfano report).” Id.

We affirmed the trial court’s denial of the Right-to-Know petition, id. at 7, 

holding, in relevant part, that, “as in Fenniman, the Hunt-Alfano report, which 

was generated in the course of an investigation of claimed employee 

misconduct, was a record pertaining to ‘internal personnel practices.’” Id. at 4. 

We also rejected the petitioners’ contention that “the investigation lost its 

‘internal status’ because,” among other things, “the precinct contracted with 

outside investigators.” Id. at 5. We found that argument “unpersuasive . . .

because nothing in the plain language of RSA 91-A:5, IV restricts a public body 

or agency from asserting an exemption under these circumstances, and the 

petitioners have presented no legal authority in support of their contentions.” 

Id. at 5.

Against this legal backdrop, we now consider whether the “internal 

personnel practices” portion of RSA 91-A:5, IV exempts the materials at issue. 

Neither party has asked us to reconsider Fenniman or Hounsell, and we will 

not do so sua sponte. At this juncture, stare decisis impels us to follow 

Fenniman and Hounsell in treating “procedures leading up to internal 

personnel discipline”—in particular, an investigation into employee 

misconduct—as a personnel practice. Fenniman, 136 N.H. at 626. 

Nevertheless, we decline to extend Fenniman and Hounsell beyond their own

 

2, “‘rules as to personnel’s use of parking facilities or regulations of lunch hours, statements of 

policy as to sick leave, and the like.’” Id. at 363 (quoting S. Rep. No. 813, 89th Cong., 1st 

Sess., 8 (1965)).

4 In so holding, the Court stated that “Exemption 2, consistent with the plain meaning of the term 

‘personnel rules and practices,’ encompasses only records relating to issues of employee relations 

and human resources.” Milner, 562 U.S. at 581. While this statement may appear to suggest a 

broader interpretation of Exemption 2 than that in Rose, it has been noted that “[t]he modest 

difference in judicial approaches taken in the Rose and Milner decisions does not come close to 

undermining the Rose holding.” Shapiro, 153 F. Supp. 3d at 279.
10

factual contexts and, in further interpreting RSA 91-A:5, IV herein, we return 

to our customary standards for construing the Right-to-Know Law.

The plaintiff distinguishes Hounsell by noting that in that case, “the 

investigators had been retained by the employer and acted on behalf of the 

employer.” He argues that “[t]he mere fact that an investigation could result in 

disciplinary action, standing alone, is not enough to qualify an investigation as 

a record pertaining to ‘internal personnel practices.’ We agree that Hounsell is 

distinguishable and that the distinction turns upon the statutory term 

“internal.” RSA 91-A:5, IV.

“When interpreting a statute, we first look to the plain meaning of the 

words used and will consider legislative history only if the statutory language is 

ambiguous.” Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 676 

(2011) (quotation omitted). In Fenniman, we stated that “the plain meanings of 

the words ‘internal,’ ‘personnel,’ and ‘practices’ are . . . quite broad,” but went 

no further in defining or examining those terms. Fenniman, 136 N.H. at 626. 

Looking now to how the words are used in the statute, we note that the terms 

“internal” and “personnel” modify the word “practices,” thereby circumscribing 

the provision’s scope. Cf. Milner, 562 U.S. at 569 (observing that 5 U.S.C.

§ 552(b)(2) uses the term “‘personnel’ . . . as an adjective . . . to modify ‘rules 

and practices’” and that the term is “the one that most clearly marks the 

provision’s boundaries”).

In construing the term “personnel” as used in the FOIA, the Supreme 

Court noted that “[w]hen used as an adjective, . . . th[e] term refers to human 

resources matters. ‘Personnel,’ in this common parlance, means ‘the selection, 

placement, and training of employees and . . . the formulation of policies, 

procedures, and relations with [or involving] employees or their 

representatives.’” Id. (quoting Webster’s Third New International Dictionary

1687 (1966)). The Court accordingly determined that “[a]n agency’s ‘personnel 

rules and practices,’” for purposes of exemption 2 of the FOIA, “are its rules 

and practices dealing with employee relations or human resources. . . . They 

concern the conditions of employment in federal agencies—such matters as 

hiring and firing, work rules and discipline, compensation and benefits.” Id. at 

570. In general, then, the term “personnel” relates to employment. Indeed, 

this is the meaning we implicitly gave the term in Fenniman and Hounsell. 

See, e.g., Hounsell, 154 N.H. at 4 (noting that, “as in Fenniman, the HuntAlfano report, which was generated in the course of an investigation of claimed 

employee misconduct, was a record pertaining to ‘internal personnel practices’” 

(emphasis added)).

“Internal” is defined to mean “existing or situated within the limits . . . of 

something.” Webster’s Third New International Dictionary 1180 (unabridged 

ed. 2002). Employing the foregoing definitions, we construe “internal 

personnel practices,” to mean practices that “exist[] or [are] situated within the 
11

limits” of employment. Id. Accordingly, while we follow Fenniman and 

Hounsell in treating an investigation into employee misconduct as a personnel 

practice, we now clarify that the investigation must take place within the limits

of an employment relationship. In other words, the investigation must be 

conducted by, or as in Hounsell, on behalf of,5 the employer of the 

investigation’s target. See Hounsell, 154 N.H. at 2, 4-5. Such a construction is 

not only consistent with the plain language of RSA 91-A:5, IV, but also follows 

our practice of “resolv[ing] questions regarding the Right-to-Know law with a 

view to providing the utmost information in order to best effectuate the 

statutory and constitutional objective of facilitating access to all public 

documents.” N.H. Retirement Sys., 162 N.H. at 676 (quotation and brackets 

omitted).

The plaintiff argues that the investigation into Reams’s alleged 

misconduct was not an “internal” one because it was conducted by the 

defendant, who was not Reams’s employer. The defendant neither directly 

asserts that he was Reams’s employer nor explicitly concedes that he was not. 

Rather, the defendant contends that the attorney general’s interests “in the 

effective operation of the [Rockingham County Attorney’s Office] do not differ 

from the interests of an employer.” The defendant further asserts that the 

plaintiff’s “argument that the records are not exempt because the [attorney 

general’s office] did not employ the witnesses at issue is . . . in error because an 

investigation into management and operational issues that impact the office’s 

prosecutorial effectiveness is within the [attorney general’s office’s] statutory 

authority.”

We have not previously decided whether the county attorneys are 

employees of the attorney general. Cf. State v. Dexter, 136 N.H. 669, 673 

(1993) (finding it unnecessary to decide, even assuming attorney’s fees were 

recoverable for county attorney’s alleged bad faith litigation, whether such fees 

would be “properly recoverable from the State or the county”). In Samaha v. 

Grafton County, 126 N.H. 583 (1985), we held that the plaintiff, when 

employed as clerk of superior court sitting in Grafton County, “was not an 

employee of Grafton County.” Samaha, 126 N.H. at 586. We reasoned:

In determining whether an employer-employee relationship exists, 

courts generally consider factors such as managerial and fiscal 

control. During his service there, the county did not have the right 

to exercise fiscal or managerial control over the plaintiff, nor the 

power to set his salary, hire or fire him. These functions were 

 

5 In Hounsell, the precinct’s legal counsel “retained” the outside third parties “to investigate [an 

employee’s] complaint of harassment” by a co-worker. Hounsell, 154 N.H. at 2. The implication is 

that the outside investigators neither initiated the investigation nor conducted it for their own 

purposes, but rather, that they acted solely on behalf of the precinct. See id.
12

performed by the superior court, acting as a body. RSA 499:1, :12. 

N.H. [CONST.] pt. II, art. 82.

Id. (citations omitted).

Considering the factors we employed in Samaha with respect to the 

instant case, we note that the attorney general does not hire county attorneys. 

Rather, each county attorney is “elected biennially by the voters of the county.” 

RSA 7:33 (2013); see also RSA 653:1, V (2016). Vacancies or temporary 

absences in the office of county attorney are filled either by the superior court 

or by majority vote of the members of the county convention, in accordance 

with the provisions of RSA 7:33 and RSA 661:9 (2016). Nor does the attorney 

general have the authority to fire a county attorney. See Eames v. Rudman, 

115 N.H. 91, 93 (1975) (noting that attorney general has no power to remove 

the county attorney from office). The attorney general may “temporarily 

suspend [a] county attorney from exercising his criminal law enforcement 

authority,” but the “power to remove [a] county attorney from office . . . is 

vested in the superior court.” Id. at 91, 93; RSA 661:9, IV (providing that “[a]ny 

officer of a county . . . may be removed by the superior court for official 

misconduct”). Finally, the attorney general neither sets nor pays the county 

attorneys’ salaries. See RSA 23:7 (2000) (providing, in part, that “[e]very 

county convention shall have the power to establish salaries, benefits and other 

compensation paid to elected county officers including the county attorney”); 

RSA 23:5 (2000) (providing that “[t]he salaries of county attorneys . . . shall be 

paid from the county treasury in equal payments as determined by the county 

commissioners”).

As the defendant points out, however, the attorney general does possess 

some supervisory authority over county attorneys. See Wyman v. Danais, 101 

N.H. 487, 490 (1958). RSA 7:6 provides, in part, that “[t]he attorney general 

shall have and exercise general supervision of the criminal cases pending 

before the supreme and superior courts of the state, and with the aid of the 

county attorneys, the attorney general shall enforce the criminal laws of the 

state.” RSA 7:6. “RSA 7:11 provides that officers charged with enforcing 

criminal 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.’” Wyman, 101 

N.H. at 489 (quoting RSA 7:11) (emphasis omitted); see RSA 7:11. Similarly, 

RSA 7:34 specifies that “[t]he county attorney of each county shall be under the 

direction of the attorney general.” RSA 7:34. “Construed together,” the abovecited provisions “demonstrate a legislative purpose to place ultimate 

responsibility for criminal law enforcement in the Attorney General, and to give 

him the power to control, direct and supervise criminal law enforcement by the 

county attorneys in cases where he deems it in the public interest.” Wyman, 

101 N.H. at 490. Nevertheless, the prosecution of criminal cases under the 

supervision of the attorney general is not the sole duty or function of a county 

attorney. “Although the county attorney . . . may be engaged primarily in 
13

criminal prosecutions, his duties and functions also include civil litigations for 

the county and other miscellaneous civil matters.” New Hampshire Bar Ass’n 

v. LaBelle, 109 N.H. 184, 185 (1968) (citation omitted); see RSA 7:34 (providing 

that “[i]f no other representation is provided, under the direction of the county 

commissioners [the county attorney] shall prosecute or defend any suit in 

which the county is interested”).

Because the relationship between the attorney general and a county 

attorney lacks the usual attributes of an employer-employee relationship, such 

as the “power to set [the] salary, hire or fire,” Samaha, 126 N.H. at 586, we 

agree with the plaintiff that the defendant was not Reams’s employer. We 

further conclude that the attorney general’s supervisory authority over criminal 

law enforcement by the county attorney is not sufficient, in light of the absent 

characteristics noted above, to warrant treating the defendant as Reams’s 

employer for purposes of the “internal personnel practices” exemption.

We need not decide, and express no opinion upon, whether the 

Rockingham County Commissioners could be considered Reams’s employer for 

purposes of the “internal personnel practices” exemption as applied in 

Hounsell, nor must we address the plaintiff’s argument that the trial court 

erred in finding that the defendant’s investigation of Reams was “conducted 

jointly with Rockingham County.” As noted above, an investigation is 

“internal,” as applied in Hounsell, if conducted on behalf of the employer of the 

investigation’s target. See Hounsell, 154 N.H. at 2, 4-5. Mere joint 

participation is not sufficient. Cf. id.

The defendant makes no argument on appeal that it acted as agent or 

outside counsel to the Rockingham County Commissioners such that its 

investigation should be treated as conducted on their behalf for purposes of the 

“internal investigation exemption” as applied in Hounsell. Rather, although the 

defendant maintains that it viewed its investigation as “a joint investigation 

with Rockingham County,” it “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.” Accordingly, because a 

finding of joint participation with the county commissioners would not affect 

our decision, we decline to address the plaintiff’s third claim of error; moreover,

because the trial court applied RSA 91-A:5, IV’s “internal personnel practices” 

exemption to records of an investigation conducted outside the limits of an 

employment relationship, we vacate its decision.

The defendant nevertheless contends that “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.” Thus, he

argues: “[T]he fact that the [attorney general’s office’s] investigation occurred 

does not divest the affected [Rockingham County Attorney’s Office] employees 

of their right to have their personnel information protected.”
14

The defendant’s argument does not alter our above conclusion, but, 

rather, highlights that whether the disputed material may be withheld should 

more properly be addressed under the portion of RSA 91-A:5, IV that exempts 

“personnel, medical, . . . and other files whose disclosure would constitute 

invasion of privacy.” RSA 91-A:5, IV; see N.H. Right to Life v. Dir., N.H. 

Charitable Trusts Unit, 169 N.H. 95, 110 (2016) (noting that “[t]his section of 

the Right-to-Know Law means that financial information and personnel files 

and other information necessary to an individual’s privacy need not be 

disclosed” (quotation omitted)). Similarly, we decline to consider at this time 

the defendant’s contention that the “transfer of personnel information from the 

[Rockingham County Attorney’s Office] to the [attorney general’s office] does not 

alter the fact that the information is substantively personnel in nature,”

because we believe that argument, too, is more suited to an analysis under the 

“personnel, medical . . . and other files” exemption. RSA 91-A:5, IV; cf. U.S. 

Dept. of State v. Washington Post Co., 456 U.S. 595, 601 (1982) (stating, in

broadly construing the term “similar files” in the FOIA’s Exemption 6, that 

“information about an individual should not lose the protection of Exemption 6 

merely because it is stored by an agency in records other than ‘personnel’ or 

‘medical’ files”).

As previously noted, the defendant claimed a number of exemptions for 

the information he withheld or redacted, including an exemption for a category 

of materials he called “Personnel Information.” (Bolding omitted.) The 

defendant asserted: “Under RSA 91-A:5, IV, records related to internal 

personnel practices are exempt from disclosure under Right to Know. In 

addition, personnel records are also exempt.” Thus, it appears that the 

defendant claimed exemption under both personnel-related exemptions in RSA 

91-A:5, IV—the exemption for “[r]ecords pertaining to internal personnel 

practices”—and the exemption for “personnel . . . files whose disclosure would 

constitute invasion of privacy.” RSA 91-A:5, IV.

The trial court also seems to have recognized two personnel-related 

exemptions, as it noted that RSA 91-A:5, IV exempts “‘[r]ecords pertaining to 

internal personnel practices,’ as well as employees’ personnel files.” The 

court’s decision, however, appears to be based exclusively on the “internal 

personnel practices” exemption, and it is not evident that the court considered 

whether any of the disputed materials were exempt as “personnel . . . files 

whose disclosure would constitute invasion of privacy.” RSA 91-A:5, IV. 

Accordingly, on remand, the parties may litigate whether any of the disputed 

materials fall within the latter exemption and we leave it to the trial court to 

make that determination in the first instance.

For the benefit of the parties and the court on remand, we provide the 

following guidance. Although we have not specifically interpreted the 

exemption for “personnel . . . files whose disclosure would constitute invasion 

of privacy,” RSA 91-A:5, IV, we have had occasion to “define with some 
15

specificity the statutory exemption for ‘confidential, commercial, or financial 

information’” in the same provision. N.H. Housing Fin. Auth., 142 N.H. at 552. 

We noted that “[w]e have interpreted our statute . . . as requiring analysis of 

both whether the information sought is ‘confidential, commercial, or financial 

information,’ and whether disclosure would constitute an invasion of privacy.” 

Id. Similarly, we now hold that the determination of whether material is 

subject to the exemption for “personnel . . . files whose disclosure would 

constitute invasion of privacy,” RSA 91-A:5, IV, also requires a two-part 

analysis of: (1) whether the material can be considered a “personnel file” or part 

of a “personnel file”; and (2) whether disclosure of the material would constitute 

an invasion of privacy. Cf., e.g., Rugiero v. U.S. Dept. of Justice, 257 F.3d 534, 

550 (6th Cir. 2001) (describing similar two-part test for exemption under the

FOIA for personnel, medical and similar files); Rocque v. Freedom of 

Information Com’n, 774 A.2d 957, 963-64 (Conn. 2001) (describing similar 

two-part test for exemption under Connecticut’s Freedom of Information Act for 

personnel, medical or similar files). Accordingly, in analyzing the “personnel

. . . files” exemption on remand, the trial court must first determine whether 

any of the disputed material is, or is contained in, a personnel file. If not, the 

“personnel . . . files” exemption does not apply.6 Cf. Abbott v. Dallas Area 

Rapid Transit, 410 S.W.3d 876, 883-84 (Tex. App. 2013) (noting that 

exemption under Texas Public Information Act for “‘information in a personnel 

file, the disclosure of which would constitute a clearly unwarranted invasion of 

personal privacy’” did not apply to information at issue where there was “no 

evidence in the record before us that [Dallas Area Rapid Transit’s] investigation 

report [regarding an employee’s racial discrimination complaint against two coemployees] is in the interviewees’ personnel files”).

The analysis of whether the exemption for “personnel . . . files” applies 

next requires determining whether disclosure of any material meeting the first 

prong of the inquiry would constitute an invasion of privacy. We now clarify 

that, unlike materials pertaining to “internal personnel practices,” for which we 

eschewed the customary balancing test in Fenniman, “personnel . . . files” are 

not automatically exempt from disclosure. RSA 91-A:5, IV. For those 

materials, “th[e] categorical exemption[] [in RSA 91-A:5, IV] mean[s] not that 

the information is per se exempt, but rather that it is sufficiently private that it 

must be balanced against the public’s interest in disclosure.” N.H. Housing 

Fin. Auth., 142 N.H. at 553 (discussing RSA 91-A:5, IV exemption for 

“confidential, commercial, or financial information”). Specifically, “[w]e engage 

 

6 We again note that the defendant claimed a number of exemptions for its withholding and 

redaction of information subject to the plaintiff’s Right-to-Know Law request, including an 

exemption for “Personal Information.” (Bolding omitted.) In particular, the defendant claimed an 

exemption for “records whose disclosure would constitute an invasion of privacy.” (Quotation 

omitted.) To the extent that claim was intended to be an invocation of the exemption for “other

files whose disclosure would constitute invasion of privacy,” we express no opinion upon the scope

or application of that claimed exemption and our decision herein has no effect upon the 

defendant’s ability to assert such a claim on remand. RSA 91-A:5, IV (emphasis added).
16

in a three-step analysis when considering whether disclosure of public records 

constitutes an invasion of privacy under RSA 91-A:5, IV.” N.H. Right to Life, 

169 N.H. at 110.

The three-step analysis is well-established:

First, we evaluate whether there is a privacy interest at stake that 

would be invaded by the disclosure. . . . If no privacy interest is at 

stake, the Right-to-Know Law mandates disclosure.

Second, we assess the public’s interest in disclosure. 

Disclosure of the requested information should inform the public 

about the conduct and activities of their government. . . .

Finally, we balance the public interest in disclosure against 

the government’s interest in nondisclosure and the individual’s 

privacy interest in nondisclosure.

Lambert v. Belknap County Convention, 157 N.H. 375, 382-83 (2008) (citations 

omitted).

The defendant does not appear to assert a privacy interest on behalf of 

Reams,7 but rather cites “the privacy rights of the former and present 

[Rockingham County Attorney’s Office] employees who provided their 

[employment-related] information, including allegations of sexual harassment, 

pregnancy discrimination, discipline, and retaliation to [attorney general’s 

office] investigators.” Looking to cases from other jurisdictions for guidance,

see Murray, 154 N.H. at 581, we note that federal courts applying the FOIA 

have recognized that “[w]itnesses who cooperate with internal investigations 

concerning alleged employee violations do have privacy interests at stake.” 

Fine v. U.S. Dept. of Energy, 823 F. Supp. 888, 897 (D.N.M. 1993); see also

Cappabianca v. Commissioner, U.S. Customs Service, 847 F. Supp. 1558, 1564 

(M.D. Fla. 1994) (noting that “[w]itnesses and co-workers have legitimate 

privacy interests in the nondisclosure of their identities and in keeping their 

participation in an investigation confidential”). In addition, a public interest in 

nondisclosure has been noted where records relate to the investigation of

alleged wrongdoing by public employees. Thus, in analyzing the FOIA 

exemption for “‘investigatory records compiled for law enforcement purposes,’” 

whose production would “‘constitute an unwarranted invasion of personal 

privacy,’” the court in Fine recognized “a strong public interest in protecting the 

 

7 Because the trial court appears not to have engaged in the balancing test for an exemption 

involving an asserted invasion of privacy, or made any ruling on that issue that is now before us 

on appeal, we do not address whether the defendant’s brief fully develops his privacy claim. Thus, 

nothing in the guidance we provide herein is intended to constrain the scope of the defendant’s

claims or arguments on remand.
17

privacy of persons who have cooperated with internal investigations of possible 

improper conduct by fellow employees.” Fine, 823 F. Supp. at 907-08 (quoting 

5 U.S.C. § 552(b)(7)(C)(1977)). Although these cases provide helpful guidance, 

we note that they are arguably distinguishable from this case because, as 

explained above, the investigation by the attorney general’s office was not an 

“internal” one.

We have not yet considered the nature of any privacy interest that might 

be asserted under the precise circumstances at issue here. The privacy inquiry 

under the comparable provision of the FOIA (Exemption 6), however, has been 

noted to be “essentially the same,” Judicial Watch, Inc. v. Dept. of Justice, 365 

F.3d 1108, 1125 (D.C. Cir. 2004), as the privacy inquiry under the FOIA’s 

exemption for investigatory records “compiled for law enforcement purposes,”

to the extent their production “could reasonably be expected to constitute an 

unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C) (2012). Cf. 

Judicial Watch, Inc., 365 F.3d at 1125 (also noting, however, that the Supreme 

Court has construed the 7C exemption to be broader than Exemption 6).

We addressed a law enforcement exemption under the Right-to-Know 

Law in City of Nashua, where we recognized “that there may be strong privacy 

interests . . . in law enforcement investigatory records.” City of Nashua, 141 

N.H. at 477. We cited cases from other jurisdictions noting that disclosure of 

such records could subject individuals to stigma, embarrassment, and 

reputational injury. Id. at 477-78. Similarly, the FOIA’s Exemption 6 has been 

held to apply to the “kinds of facts [that] are regarded as personal because their 

public disclosure could subject the person to whom they pertain to 

embarrassment, harassment, disgrace, loss of employment or friends.” Brown 

v. Federal Bureau of Investigation, 658 F.2d 71, 75 (2d Cir. 1981) (determining 

whether documents were “similar files” under Exemption 6 of the FOIA); see

also Washington Post Co., 456 U.S. at 599 (noting that legislative history 

suggests that the “primary purpose . . . [of] Exemption 6 was to protect 

individuals from the injury and embarrassment that can result from the 

unnecessary disclosure of personal information”). Thus, in determining 

whether any privacy interests are at stake in the disputed materials, the trial 

court should consider whether disclosure would subject an individual to the 

kind of embarrassment or reputational harm described above.

Moreover, “[w]hether information is exempt from disclosure because it is 

private is judged by an objective standard and not by a party’s subjective 

expectations.” N.H. Retirement Sys., 162 N.H. at 679 (quotation omitted); cf. 

Lambert, 157 N.H. at 383 (noting that candidate for an elected office “could not 

have reasonably expected to keep his or her ‘application’ private”). As Lambert

suggests, however, the nature of the information itself may bear upon whether 

it can be considered private for purposes of RSA 91-A:5, IV. See Lambert, 157 

N.H. at 383. Thus, information that, under an objective standard, would be 

expected to become public in due course, should not give rise to the same 
18

privacy interest as information for which public exposure would, objectively, 

never be anticipated. Here, it may be that certain information regarding 

allegations of misconduct potentially rising to the level of criminal actions by 

an elected official could objectively have been expected to become public as or 

after an investigation ran its course.

We recognize case law holding that “[a] clear privacy interest exists with 

respect to such information as names, addresses, and other identifying 

information even where such information is already publicly available,” 

Rugiero, 257 F.3d at 550, and that “[a] witness does not waive his or her 

interest in personal privacy [even] by testifying at a public trial,” Sellers v. U.S. 

Dept. of Justice, 684 F. Supp. 2d 149, 160 (D.D.C. 2010) (discussing the FOIA 

exemption for records compiled for purposes of law enforcement).

Nevertheless, we note that the privacy interest in a witness’s or investigation 

interviewee’s name and identifying information will likely differ from the privacy 

interest in the substantive information the witness or interviewee imparts. Cf.

CREW v. U.S. Dept. of Justice, 978 F. Supp. 2d 1, 11 (D.D.C. 2013) (CREW I) 

(finding, with respect to investigative files on senator’s alleged criminal actions 

taken to cover up an extramarital affair, that third parties mentioned in files, 

such as informants, witnesses, and investigators, “lack a privacy interest in the 

substance of the files, unless the substance could reveal their identities”).

In contrast to CREW I, id., however, and given the nature of Reams’s 

alleged misconduct, we cannot say as a matter of law that third party witnesses 

and interviewees in this case will have no privacy interest in any of the 

substantive information. Cf. Rocque, 774 A.2d at 959 (agreeing with trial court

“that the identity of the complainant in the sexual harassment investigation at 

issue . . . [and] certain other information concerning the investigation is exempt

from disclosure” but “limit[ing] the exempt portions of the records to those 

comprising sexually descriptive information”). On the other hand, even 

information imbued with a legitimate privacy interest is subject to disclosure if, 

on balance, that interest is outweighed by the public’s cognizable interest in 

disclosure. Cf. CREW I, 978 F. Supp. 2d at 12 (noting that “[a]lthough the 

[defendant, Department of Justice (DOJ),] argues that Senator Ensign’s alleged 

misconduct ‘is of a highly personal nature,’ the public has a substantial 

interest in DOJ’s decision not to prosecute him, considering the

circumstances”). Accordingly, we emphasize that a fact-specific inquiry is 

required in each case. Cf. Rocque, 774 A.2d at 959 (disagreeing with “trial 

court’s ruling that the identity of a complainant in a sexual harassment 

complaint and related information are always exempt from disclosure, 

irrespective of the particular facts of a case”).

Turning to the second step of the balancing test, the plaintiff claims a 

“public interest in determining if the Attorney General had grounds to 

unilaterally remove an elected official . . . [and] in disclosing the information 

relied upon by the Attorney General.” We recognize that “[t]he public has a 
19

significant interest in knowing that a government investigation is 

comprehensive and accurate.” Fine, 823 F. Supp. at 898. We also note that 

the rank of the official being investigated and the seriousness of the alleged 

misconduct will bear upon the strength of the public interest. Cf. Coleman v. 

Lappin, 680 F. Supp. 2d 192, 199 (D.D.C. 2010) (stating that “[t]he Court 

ordinarily considers, when balancing the public interest in disclosure against 

the private interest in exemption, the rank of the public official involved and 

the seriousness of the misconduct alleged” (quotation and brackets omitted)). 

Thus, for instance, the court in CREW v. U.S. Dept. of Justice, 840 F. Supp. 2d 

226 (D.D.C. 2012) (CREW II), found it “difficult to understand how there could

not be a substantial public interest in disclosure of documents regarding the 

manner in which the [Department of Justice] handled high profile allegations of 

public corruption about an elected official.” CREW II, 840 F. Supp. 2d at 234.

The legitimacy of the public’s interest in disclosure, however, is tied to 

the Right-to-Know Law’s purpose, which is “to provide the utmost information 

to the public about what its government is up to.” N.H. Right to Life, 169 N.H. 

at 111 (quotation omitted). “If disclosing the information does not serve this 

purpose, disclosure will not be warranted even though the public may 

nonetheless prefer, albeit for other reasons, that the information be released.” 

Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106, 111 (2005) (quotation 

omitted). Conversely, “an individual’s motives in seeking disclosure are 

irrelevant to the question of access.” Lambert, 157 N.H. at 383.

The third step requires balancing “the public interest in disclosure 

against the government’s interest in nondisclosure and the individual’s privacy 

interest in nondisclosure.” Id. We have stated that “[t]he legislature has 

provided the weight to be given one side of the balance[] [by] declaring the 

purpose of the Right-to-Know Law in” the statute itself. City of Nashua, 141 

N.H. at 476. Specifically, the preamble to RSA chapter 91-A provides: 

“Openness in the conduct of public business is essential to a democratic 

society. The purpose of this chapter is to ensure both the greatest possible 

public access to the actions, discussions and records of all public bodies, and 

their accountability to the people.” RSA 91-A:1 (2013). Thus, “[w]hen a public 

entity seeks to avoid disclosure of material under the Right-to-Know Law, that 

entity bears a heavy burden to shift the balance toward nondisclosure.” City of 

Nashua, 141 N.H. at 476.

The foregoing considerations are not intended to be either comprehensive 

or exhaustive, and we leave it to the trial court, in the first instance, to 

determine and weigh the applicable interests as the case may require on 

remand.

In light of the foregoing, our decision is not undermined by the 

defendant’s contention, and the trial court’s consonant finding, that this case 

implicates the policy concern noted in Hounsell; namely, that “disclosure of 
20

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.” Hounsell, 154 N.H. at 5. We are confident that the proper 

balancing of the employees’ interests in privacy and the State’s interest in 

nondisclosure against the public’s interest in disclosure under our established 

test adequately addresses any concerns about deterrence. Cf. Goode v. N.H. 

Legislative Budget Assistant, 148 N.H. 551, 556 (2002) (acknowledging “a 

possibility that an audit investigation may be compromised if interviewees are 

reluctant to disclose information to investigators” out of concern “that their 

responses could be released to the public,” but finding that this possibility did 

“not . . . outweigh[] the public’s interest in disclosure”).

In light of our decision, we need not address the plaintiff’s constitutional 

argument. See Chatman, 163 N.H. at 326.

Vacated and remanded.

HICKS, CONBOY, and BASSETT, JJ., concurred.