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- courts/supreme

- court

.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2022

- 0321

AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE

v.

NEW HAMPSHIRE DIVISION OF STATE POLICE

Argued: February 14, 2023

Opinion Issued: November 29

, 2023

American Civil Liberties Union of New Hampshire , of Concord ( Gilles R.

Bissonnette and Henry R. Klementowicz on the brie f

, and Gilles R. Bissonnette

orally), for the plaintiff.

John M. Formella , attorney general, and Anthony J. Galdieri , solicitor

general ( Jessica A. King

, assistant attorney general , on the brief and orally), for

the defendant

.

Wadleigh, Starr & Peters, P.L.L.C. , of Manchester ( Donna J. Brown and

Michael G. Eaton on the brief), for Bl ack Lives Matter Manchester, as amicus

curiae

.2

Malloy & Sullivan, Lawyers Professional Corporation , of Hingham,

Massachusetts ( Kathleen C. Sullivan and Gregory V. Sullivan on the brief), for

Union Leader Corporation and New England First Amendment Coalit ion, as

amici curiae

.

HICKS , J. The defendant, the New Hampshire Division of State Police

(the Division )

, appeals an order of the Superior Court ( Kissinger , J.) granting

the relief sought in a complaint filed by the plaintiff, the American Civil

Liberties Union of New Hampshire (ACLU)

, for access to public records under

the Right

- to

- Know Law. See RSA ch

. 91

- A ( 2023 ). We affirm.

The following facts were recited in the trial court’s order or relate the

contents of documents in the record. In January 2022, the ACLU filed a Right

to

- Know Law complaint against the Division seeking access to records

concerning a former state trooper

. T he complaint allege s that the trooper had

been terminated in August 2021 and placed on the exculpatory evidence

schedule in September 2021. See Doe v. Attorney General , 175 N.H. 349, 351

n.1 (2022) (describing the exculpatory evidence schedule). It further allege s that the trooper’s conduct had given rise to a federal civil rights lawsuit that

the Division paid $212,500 to settle on the trooper’s behalf

.

According to the complaint , the ACLU submitted a Right

- to

- Know Law

request to the Division in August 2021, seeking “ [ a ] ll reports, investigatory

files, personnel, and disciplinary records concerning [the former trooper ] that

relate to any adverse employment action.” (Quotation omitted.) The complaint

alleges that the Division had “not produced the requested information” and,

apparently, “has no intention of doing so in the future.” T he ACLU filed its

complaint seeking the same information.

The Division objected to disclosure

, arguing that the requested records

are exempt from disclosure under RSA 105:13

- b and that their disclosure

would constitute an invasion of privacy under RSA 91

- A:5, IV. See RSA

105:13

- b ( 2023 ); RSA 91

- A:5, IV. The trial court granted the ACLU’s request

for disclosure and found the redactions proposed by the ACLU to be

appropriate. The court first found that “RSA 105:13

- b does not categorically

prohibit disclosure of the records at issue in this case under RSA 91

- A:4, I.”

Next, the court conducted the applicable three

- step analysis to determine

whether disclosure of the requested records would constitute an invasion of

privacy under RSA 91

- A:5, IV, and concluded that the Division “failed to carry

its heavy bur den to shift the balance in favor of nondisclosure with respect to

the records at issue.” See Union Leader Corp. v. Town of Salem , 173 N.H. 345,

355 (2020) (describing the three

- step analysis) ; Reid v. N.H. Attorney Gen. , 169

N.H. 509, 527

- 29 (2016) (expl aining the scope of the protected privacy interests

and the proper focus of the public interest).3

On appeal, the Division challenges only the trial court’s ruling that RSA

105:13

- b does not exempt the police personnel files at issue from disclosure

pursuant to RSA 91

- A:4, I. Accordingly, “ [r] esolution of this case requires us to

interpret several statutory provisions, including certain provisions of the Right

to

- Know Law.” Grafton C ou nty Attorney’ s Off ice v. Canner , 169 N.H. 319, 32 2

(2016). “The ordinary rules of statutory construction apply to our review of the

Right

- to

- Know Law.” Id

. (quotation omitted). “When examining the language of

a statute, we ascribe the plain and ordinary meaning to the words used.” Id

. “We interpret legislative intent from the statute as written and will not consider

what the legislature might have said or add language that the legislature did

not see fit to include.” Id

. “We also interpret a statute in the context of the

overall statutory scheme an d not in isolation.” Id

. “ We resolve questions

regarding the Right

- to

- Know Law with a view to providing the utmost

information in o rder to best effectuate the law’ s statutory and constitutional

objectives. Finally, w e “will consider legislative history only if the statutory

language is ambiguous.” Reid , 169 N.H. at 522. Because the statut ory language at issue here is un ambiguous , we reach our interpretation using “the

plain meaning of the words used.” Id

.

The Rig ht

- to

- Know Law provision at issue is RSA 91

- A:4, I , which

provides, in relevant part:

E very citizen during the regular or business hours of all public

bodies or agencies, and on the regular business premises of such

public bodies or agencies, has the right to inspect all governmental

records in the possession, custody, or control of such pub lic bodies

or agencies, including minutes of meetings of the public bodies,

and to copy and make memoranda or abstracts of the records or

minutes so inspected, except as otherwise prohibited by statute or

RSA 91

- A:5.

RSA 91

- A:4, I (emphasis added)

. The D ivision asserts that “RSA 105:13

- b is a

statute that ‘otherwise prohibit[s]’ disclosure of government records pursuant

to RSA 91

- A:4, I.” It contends that such records are therefore “categorically

exempt from RSA chapter 91

- A.” For the reasons that follo w, we disagree.

RSA 105:13

- b , entitled “Confidentiality of Personnel Files,” provides:

I. Exculpatory evidence in a police personnel file of a police

officer who is serving as a witness in any criminal case shall be

disclosed to the defendant. The dut y to disclose exculpatory

evidence that should have been disclosed prior to trial under this

paragraph is an ongoing duty that extends beyond a finding of

guilt.4 II. If a determination cannot be made as to whether evidence is

exculpatory, an in camera r eview by the court shall be required.

III. No personnel file of a police officer who is serving as a

witness or prosecutor in a criminal case shall be opened for the

purposes of obtaining or reviewing non

- exculpatory evidence in

that criminal case, unles s the sitting judge makes a specific ruling

that probable cause exists to believe that the file contains evidence

relevant to that criminal case. If the judge rules that probable

cause exists, the judge shall order the police department employing

the officer to deliver the file to the judge. The judge shall examine

the file in camera and make a determination as to whether it

contains evidence rele vant to the criminal case. Only those

portions of the file which the judge determines to be relevant in the

case shall be released to be used as evidence in accordance with all

applicable rules regarding evidence in criminal cases. The

remainder of the f

ile shall be treated as confidential and shall be

returned to the police department employing the officer.

RSA 105:13

- b.

We have recognized that RSA 105:13

- b is linked to the prosecutor’ s duty

of disclosure under Brady v. Maryland , 373 U.S. 83, 87 (1963)

, and State v.

Laurie , 139 N.H. 325, 330 (1995)

. See Petition of State of N.H. (State v. Fuchs)

, 174 N.H. 785, 791 (2022)

. 1 In Petition of State (Fuchs) , we concluded that

“ read as a whole, the statute details the procedure for turning over to a

crimina l defendant any exculpatory or relevant evidence found in the personnel

files of any police officer testifying in the criminal case while maintaining the

confidentiality of those files for all other purposes. ” Petition of State (Fuchs)

, 174 N.H. at 793

.

Relying on Petition of State (Fuchs) , t he Division argues:

[T]he statute prohibits public disclosure of police personnel files to the

maximum extent permitted by the United States and New Hampshire

Constitutions. RSA 105:13

- b mandates the transfer of certain, otherwise

confidential personnel information solely fo r the critical purpose of

delivering to criminal defendants the most robust realization of their

constitutional right to exculpatory or relevant evidence in a criminal

matter. For all other reasons, the police personnel files remain closed to

the public.

1 The dissent misreads our decision in Petition of State of N.H. ( State v. Fuchs) , 174 N.H. 785

(2022)

. In no respect does this case overrule or diminish its holding.5

The Division’s argument, however, reads into RSA 105:13

- b a reference

to “public disclosure” that simply is not there. In Petition of State (Fuchs) , we emphasized that “[t] he disclosure required under paragraph I is explicitly tied

to a particular criminal defendant in a particular criminal case ” and that

disclosure under paragraph III is similarly “ tied to a particular criminal case

and is for the explicit purpose of being used as evidence.” Id

. at 792 (emphases

added) (quotation and brackets omitted). Thus, we recognized the limited

context in which RSA 105:13

- b operates: a specific criminal trial. Indeed, the

statute further limits its applicability to a criminal trial in which the police

officer whose personnel file is at issue “ is serving as a witness ” or “serving as a

. . . prosecutor.” RSA 105:13

- b , I , III

. The Division’s attempt to broaden RSA

105:13

- b ’s application to “public disclosure” violates our canon of statutory

construction that we “ will not consider what the legislature might have said or

add language that the legislature did not see fit to include.” Grafton C ou nty

Attorney’ s Off

ice , 169 N.H. at 322

.

The Division a r gues, howev er, that in Provenza v. Town of Canaan , 175

N.H. 121 (2022)

, we rejected the assertion that “RSA 105:13

- b is limited to

solely criminal matters and is not applicable in the Right

- to

- Know context.”

The Division misreads Provenza

. In Provenza , the plaintiff sought to bar

release under the Right

- to

- Know Law of “ an investigative report commissioned

by the Town as a result of a motor vehicle stop in which he was involved while

still employed by the Town as a police officer .” Provenza , 175 N.H. at 123

. The

plaintiff argued, in relevant part, “ that RSA 105:13

- b creates an exception to

the Right

- to

- Know Law that applies to the R eport. ” Id . at 128. We rejected

that argument, noting that “ by its express terms, RSA 105:13

- b pertains only

to information maintained in a police officer’ s personnel file” and that the

plaintiff had not successfully challenged on appeal the trial court’ s finding that

“there is nothing in the record to suggest that the Report is contain ed in or is a

part of [Provenza’ s] personnel file.” Id . (quotations omitted).

Our holding in Provenza d oes not imply that if the Report had been

contained in Provenza’s personnel file, it would have been categorically exempt

from the Right

- to

- Know Law by virtue of RSA 105:13

- b. We had no need to

reach that issue when, as we held, RSA 105:13

- b , “ by its express terms ,” did

not apply to the requ ested report on the facts found by the trial court. Id

. “ We

decline to read into [ Provenza ] conclusions it did not reach .” United States v.

Segal , 644 F.3d 364, 367 (7th Cir. 2011) (rejecting defendant ’s argument that a

United States Supreme Court case “ held that ‘ defraud, ’ as used in the mail and

wire fraud statutes, means fraud as it was understood at common law, ” when

the case “ focused on and reached a conclusion as to only one element of fraud

at common law: materiality ” and was silent as to the element defendant

claimed the case required ).

Similarly, no precedent on the issue before us can be found in New

Hampshire Center for Public Interest Journalism v. New Hampshire6

Department of Justice

, 173 N.H. 648, 656 (2020)

, in which, “[f] or the purposes

of th [at] appeal, we assume [d] without deciding that RSA 105:13

- b constitutes

an exception to the Right

- to

- Know Law and that it applies outside of the

context of a specific criminal case in which a police officer is testifying

. ” N

. H

. Ctr. for Pub. Int erest Journalism , 173 N.H. at 656

. Moreover, in Doe v.

Attorney General , decided after New Hampshire C ente r for Pub lic Int erest

Journalism and Provenza , we reaffirmed that RSA 105:13

- b operates within the

limited context of a spe cific criminal trial, concluding that “ RSA 105:13

- b, II

does not authorize the trial court to review the contents of an officer ’ s

personnel file outside the scope of a particular criminal case. ” Doe , 175 N.H. at

354

.

The Division further contends that “[t]he process outlined in [RSA

105:13

- b] functionally prohibits the public from inspecting the records in police

personnel files by limiting inspection to certain, enumerated circumstances.” It

points to our statement in Petition of State (Fuchs) that “[n] o further

dissemination is either required or permitted ,” Petition of State (Fuchs) , 174

N.H. at 792, and asserts that our “case law recognizes that RSA 105:13

- b

establishes a scheme in which police personnel records may not be disc losed

outside the [enumerated] narrow exceptions.”

Again, the Division read s meaning into operative language

— here, from

an opinion of this court

— that is not there . The quoted language from Petition

of State (Fuchs) means what it says and no thing more: “N o further

dissemination is either required or permitted .” Petition of State (Fuchs) , 174

N.H. at 792 (emphasis added) . At issue in Petition of State (Fuchs) was

whether defendant s who ha d received information under RSA 105:13

- b were

entitled to thereafter disseminate that information to others, or whether the

State was entitled to the issuance of protective orders. See id . at 788. The

State had filed motions in the underlying cases seeking protective order s “ that

would prohibit ‘ Defense Counsel .

. . from sharing or further disseminating

these confidential documents and the confidential information contained

therein with an yone other than Defense Counsel’ s staff and the Defendant. ’ ”

Id

. In interpreting RSA 105:13

- b to preclude further dissemination , we

reasoned:

[B] ecause material disclosed under RSA 105:13

- b must first be

determined to be exculpatory or relevant in a particular criminal

case, and then is to be disclosed specifically to the defendant, to

interpret the statute to allow disclosure or use beyond the

defendant in that particular case would completely destroy the

carefully crafted statutory process by which such information is

released.

Id

. at 794 (emphasis added) (quotatio n and brackets omitted). Again, our focus

was on whether a defendant who had received information under RSA 105:13

- b7

could thereafter share that information with others. Our decision in Petition of

State (Fuchs) says nothing about whether information in a police personnel file

independently may be subject to disclosure under a different statute.

The Division next analogizes this case to CaremarkPCS H ealth v. N ew

H ampshire Dep artment of Admin istrative Serv ice s , 167 N.H. 583 (2015) , in

which we held that, under the facts of the case, the New Hampshire Uniform

Trade Secrets Act (UTSA) provided an exemption from disclosure pursuant to

RSA 91

- A:4, I. CaremarkPCS Health , 167 N.H. at 590 ; see RSA ch. 350

- B

(2022) (UTSA) . Specifically, we noted that the U TSA “ provides remedies for the

‘[a] ctual or threatened misappropriation ’ of trade secrets ,” which includes

“‘[d] isclosure or use of a trade secret of another without express or implied

consent by a person who

. . . [a]t the time of disclosure or use, knew or had

reason to know that his knowledge of the trade secret was . . . acquired under

circumstances giving rise to a duty to maintain its secrecy or limit its use .’”

CaremarkPCS Health , 167 N.H. at 587, 588 (emphasis omitted) (quoting RSA

350

- B:1, II (b)

, : 2, I ). We further noted that Caremark had “ specifically marked

the designated information as confidential and proprietary ,” that the contract

between Caremark and the New Hampshire Department of Administrative

Services (Department) imposed on both parties “ a duty of confidentiality not to

disclose trade secrets ,” and that “ Caremark did not expressly or impliedly

consent to disclosure of the des ignated information. ” Id . at 589. Accordingly,

we concluded that “ because disclosure of the designated information by the

Department would be a misappropriation of Caremark’ s trade secrets under

the UTSA,

. . . disclosure of that information is ‘ prohibit ed by statute ’ under

RSA 91

- A:4, I, and, therefore, we [held] that the designated information [was]

exempt from disclosure under RSA 91

- A:4, I. ” Id . at 590.

The Division argues that “[l]ike in Caremark where the UTSA prevented

the release of trade secre ts, here, RSA 105:13

- b prevents disclosure of police

personnel files except in limited, enumerated circumstances , pursuant to a

process manifestly different from and in conflict with the right of general public

inspection provided in RSA 91

- A : 4, I.” The D ivision’s reliance on Caremark PCS

Health is unavailing , however, because there, the UTSA prohibited the

Department from releasing the information and thus the disclosure was

“otherwise prohibited by statute.” We specifically noted that “[t] he UTSA does

not prohibit the disclosure of trade secrets under all circumstances; rather, it

prov ides remedies for the ‘ [a]ctual or threatened misappropriation ’ of trade

secrets

, ” i d . at 587 (quoting RSA 350

- B:2, I) , such that disclosure would be

contrary to law . RSA 105:13

- b similarly does not prohibit disclosure, in all

instances, of information fo und in police personnel files and it does not further

regulate the information . Thus

, it cannot provide a categorical exemption from

disclosure under RSA 91

- A:4, I. And while we have interpreted RSA 105:13

- b

to prohibit further dissemination of informati on obtained under its procedural

framework, the Division ca nnot avail itself of this prohibition, as it does not

hold the records as a result of obtaining them under the statute. Thus, while8

the UTSA applied to the designated information in Caremark PCS Health to

prohibit its disclosure by the Department, the same is not true with respect to

RSA 105:13

- b and the Division in this case.

Finally, the Division contends that in light of the carefully

- drafted

statutory framework under which police personn el file information may be

obtained under RSA 105:13

- b, “disclosing such records pursuant to a public

records request would produce an absurd result.” It argues:

Parties in a criminal case could entirely circumvent the protections

afforded by statute and gain access to the records via a simple

public records request. The absurdity of this result, in which a

criminal defendant may have less right to access a police personnel

file within the context of his criminal case than as a member of the

public seeki ng the same documents under RSA 91

- A, defies the

plain statutory language of RSA 105:13

- b.

We disagree.

The Right

- to

- Know Law and RSA 105:13

- b serve different purposes. RSA

105:13

- b effectuates a criminal defendant’s State and Federal Constitutional

ri ghts to disclosure of exculpatory evidence and also provides a procedure for

obtaining non

- exculpatory evidence relevant to the defendant’s criminal case

. See RSA 105:13

- b; Petition of State of N.H. (State v. Theodosopoulos) , 153 N.H.

318, 321 (2006) (decided under prior statute) (noting distinction “ between

exculpatory evidence that must be disclosed to the defendant under the State

and Federal Constitutions, and other information contained in a confidential

personnel file that may be obtained through the statutory procedure set forth

in RSA 105:13

- b ”)

. The purpose of the Right

- to

- Know Law, on the other hand

, “is to ensure both the greatest possible public access to the actions,

discussions and records of all public bodies, and their accountabi lity to the

people.” RSA 91

- A:1.

We see no absurdity in the coexistence of different statutory frameworks

for seeking information in a police personnel file for different purposes.

Determining whether information will be disclosed will entail a different inquiry

under each framework and the material disclosed under each may not be

equivalent. A person seeking disclosure under the Right

- to

- Know Law would

likely be met with a claim of exemption for “personnel .

. . files whose

disclosure would constitute invasion of privacy

. ” RSA 91

- A:5, IV . In that case,

after making the requisite preliminary findings, a court would apply the

established three

- step analysis, as the trial court did here, to determine

whether disclosure would constitute an invasion of privacy under RSA 91

- A:5,

IV. Se e Reid , 169 N.H. at 52 7

- 29 (discussing analysis for determining whether

disclosure of a personnel file would constitute an invasion of privacy). First, in

determining the privacy interests, the court considers the articulated “public9

interest in nondisclo sure,” and whether disclosure would release personally

identifying information or subject an individual to embarrassment or

reputational harm. Id . at 529

- 31 (emphasis omitted). Second, the court

evaluates the strength of the public interest as tied to th e purpose of the Right

to

- Know Law. Id . at 532. The material would be disclosed if, under the third

step of the analysis, “ the public interest in disclosure ” outweighs “ the

government’ s interest in n ondisclosure and the individual’ s privacy interest in

nondisclosure. ” Union Leader Corp.

, 173 N.H. at 355 ; see Goode v. N

. H

. Legislative Budget Assistant , 148 N.H. 551, 556, 558 (2002) (concluding trial

court erred in ruling that materials were exempt under RSA 91

- A:5, IV where

“the public’ s inte rest in disclosure outweighs the [defendant’s] interest in non

disclosure ” ).

A defendant in a criminal case seeking material under RSA 105:13

- b , on

the other hand, w ould obtain exculpatory evidence, and, upon making the

requisite probable cause showing, w ould obtain non

- exculpatory evidence

relevant to his criminal case

. See RSA 105:13

- b

. The material that would be

disclosed under each framework

— material in which the public interest

outweighs the relevant privacy interests u nder the Right

- to

- Know Law and

material exculpatory and/or relevant to the defendant’s criminal case under

RSA 105:13

- b

— is tailored to the purposes of the respective law. That one

framework may trigger disclos ur e of certain material that the other does not

— or, as the Division frames it, that “ a criminal defendant may have less right to

access a police personnel file within the context of his criminal case than as a

member of the public seeking the sam e documents under RSA 91

- A ”

— is, to

us, a reflection of the different purposes served by each statutory scheme

.

Should the legislature disagree with th is court’s interpretations of

v arious applications of the exemptions set forth in RSA 91

- A:5, IV, including, in

this case, our treatment of documents relating to any adverse employment

action with respect to the former officer

, it may wish to clarify those aspects of

records pertaining to law enforcement officers that it intends to be categorically

ex empt

. See Provenza , 175 N.H. at 122

- 23 (investigative report on officer no

longer with department) ; Union Leader Corp. , 173 N.H. at 34 8 (audit of police

department); Seacoast Newspapers v. City of Portsmouth , 173 N.H. 325 , 329

(2020) (arbitration decision of police officer’s grievance); c f

. Petition of State

( Fuchs ) , 174 N.H. at 78 8 ( further disclosure of exculpatory evidence produced

in criminal trial).10

Accordingly, for the foregoing reasons, we affirm the trial court’s ruling

that RSA 105:13

- b does not prohibit disclosure of the records at issue. 2

Affirmed

.

HANTZ MARCONI and DONOVAN

, J J., concurred; ABRAMSON, J.,

retired superior court justice, specially assigned under RSA 490:3, concurred;

BASSETT, J., dissented

.

BASSETT

, J., dissenting. The defendant, the New Hampshire Division of

State Police (the Division ), appeals an order of the Superior Court ( Kissinger

, J.)

granting the relief sought in a complaint filed by the plaintiff, the American

Civil Liberties Union of New Hampshire (ACLU), for access to records under the

Right

- to

- Know Law that concern a former state trooper. See RSA ch. 91

- A

(2023). The majority affirms. I respectfully dissent.

The trial court granted ACLU ’s request for disclosure, ruling that “RSA

105:13

- b does not categorically prohibit disclosure of the records at issue in

this case under RSA 91

- A:4, I.” On appeal, the Division challenges the trial

court’s ruling that RSA 105:13

- b does not exempt the po lice personnel files at

issue from disclosure pursuant to RSA 91

- A:4, I. Accordingly, “[r]esolution of

this case requires us to interpret several statutory provisions, including certain

provisions of the Right

– to

– Know Law.” Grafton County Attorney’ s Offi ce v.

Canner

, 169 N.H. 319, 322 (2016).

The Right

- to

- Know Law provision at issue is RSA 91

- A:4, I, which

provides, in relevant part:

Every citizen during the regular or business hours of all public

bodies or agencies, and on the regular business premis es of such

public bodies or agencies, has the right to inspect all governmental

records in the possession, custody, or control of such public bodies

or agencies, including minutes of meetings of the public bodies,

and to copy and make memoranda or abstract s of the records or

minutes so inspected, except as otherwise prohibited by statute or

RSA 91

- A:5.

RSA 91

- A:4, I (emphasis added). The Division asserts that “RSA 105:13

- b is a

statute that ‘otherwise prohibit[s]’ disclosure of government records pursuant

to RSA 91

- A:4, I.” It contends that such records are therefore “categorically

2 To the extent the Division contends that the ACLU and amici have submitted materials that were

not in the record before the trial court, we reiterate that our decision is based solely on

interpretation of the applicable statutes and we have not considered the materials to which the

Division objects.11

exempt from RSA chapter 91

- A.”

RSA 105:13

- b, entitled “Confidentiality of Personnel Files,” provides:

I. Exculpatory evidence in a police personnel file of a police

offic er who is serving as a witness in any criminal case shall be

disclosed to the defendant. The duty to disclose exculpatory

evidence that should have been disclosed prior to trial under this

paragraph is an ongoing duty that extends beyond a finding of

guil t.

II. If a determination cannot be made as to whether evidence is

exculpatory, an in camera review by the court shall be required.

III. No personnel file of a police officer who is serving as a

witness or prosecutor in a criminal case shall be opened for the

purposes of obtaining or reviewing non

- exculpatory evidence in

that criminal case, unless the sitting judge makes a specific ruling

that probable cause exists to believe that the file contains evidence

relevant to that criminal case. If the judge rules that probable

cause exists, the judge shall order the police department employing

the officer to deliver the file to the judge. The judge shall examine

the file in camera and make a determination as to whether it

contains evidence relevant to the cr iminal case. Only those

portions of the file which the judge determines to be relevant in the

case shall be released to be used as evidence in accordance with all

applicable rules regarding evidence in criminal cases. The

remainder of the file shall be t reated as confidential and shall be

returned to the police department employing the officer.

RSA 105:13

- b (2023).

We have recognized that RSA 105:13

- b is linked to the prosecutor’s duty

of disclosure under Brady v. Maryland

, 373 U.S. 83, 87 (1963), and S tate v.

Laurie

, 139 N.H. 325, 330 (1995). See Petition of State of N.H. (State v. Fuchs)

, 174 N.H. 785, 791 (2022). In Fuchs

, we concluded that “read as a whole, the

statute details the procedure for turning over to a criminal defendant any

exculpatory o r relevant evidence found in the personnel files of any police

officer testifying in the criminal case while maintaining the confidentiality of

those files for all other purposes .” Id

. at 793 (emphasis added). We

emphasized that when exculpatory evidence in a police personnel file is

disclosed to a criminal defendant under RSA 105:13

- b, that disclosure “is

explicitly tied to a particular criminal defendant in a particular criminal case.

No further dissemination is either required or permitted .” Id

. at 7 92 (emphasis

added). Thus, I agree with the Division that we have already answered the

question presented by this appeal

— we stated in Fuchs that RSA 105:13

- b12

maintains the confidentiality of police personnel files for all purposes other

than fulfilling the prosecutor’s duty of turning over to a criminal defendant

exculpatory or relevant evidence. Id

. at 793. In my view, “for all other

purposes” includes for purposes of the Right

- to

- Know Law.

The majority asserts that Fuchs emphasizes that the disclosure required

by RSA 105:13

- b is tied to a particular criminal defendant in a particular

criminal case, and that RSA 105:13

- b operates in the limited context of a

specific criminal trial. It then suggests that the Division is at tempting to

“broaden RSA 105:13

- b’s application to ‘public disclosure,’” which it contends

violates our canon of statutory construction that we will not consider what the

legislature might have said or add language that the legislature did not see fit

to i nclude.

The majority ’s analysis, however, supports the opposite conclusion. As

Fuchs explained, RSA 105:13

- b is entitled “Confidentiality of Personnel Files.”

We concluded that the title evinced the legislature’s intent that police personnel

files pote ntially subject to disclosure under RSA 105:13

- b “start with a

presumption of general confidentiality.” Id

. at 792 (emphasis added). That the

disclosure required by the statute is tied to a particular criminal defendant in a

particular criminal case demo nstrates the limited nature of the exception to the

general confidentiality of police personnel files. Other than disclosure

pursuant to that limited exception, RSA 105:13

- b prohibits further

dissemination

— “[n]o further dissemination is

. . . permitted. ” Id

. By creating

an additional exception to RSA 105:13

- b’s general confidentiality of police

personnel files, it is the majority that is considering what the legislature might

have said or adding language that the legislature did not see fit to include.

It might be argued that while RSA 105:13

- b makes police personnel files

“confidential,” that by itself does not mean that disclosure is prohibited under

the Right

- to

- Know Law. RSA 91

- A:4, I, provides for inspection of all

governmental records “except as otherwise prohibited by statute or RSA 91

- A:5.” RSA 91

- A:5, IV provides an exemption for governmental records that are

“confidential,” but we have construed that exemption as requiring the use of a balancing test to determine whether the disclosure of “confidential,

commercial, or financial” information results in an invasion of privacy. Union

Leader Corp. v. Town of Salem

, 173 N.H. 345, 355 (2020).

That determination involves a three

- step analysis. First, we evaluate

whether there is a privacy interest at stake that would be invaded by the

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

we balance the public interest in disclosure against the government’s

interest in nondisclosure and the individual’s privacy interest in

nondisclosure. If no privacy interest is at stake, then the Right

- to

- Know

La w mandates disclosure. Further, whether information is exempt from

disclosure because it is private is judged by an objective standard and13

not a party’s subjective expectations. Thus, determining whether the

exemption for “confidential, commercial, or fi nancial information” applies

requires analysis of both whether the information sought is “confidential,

commercial, or financial information,” and whether disclosure would

constitute an invasion of privacy.

Id

. (quotations, brackets, and citations omitted ).

If RSA 105:13

- b were to be construed as making police personnel files

“confidential” only in the limited sense that that term is used in the exemption

in RSA 91

- A:5, IV, then it would follow that only those police personnel records

that the government is able to prove, using the three

- part balancing test, result

in an invasion of privacy will be exempt

— all other police personnel files will be

public documents available for disclosure under the Right

- to

- Know Law. See

CaremarkPCS Health v. N.H. Dep’t of Admin. Servs.

, 167 N.H. 583, 587 (2015)

(stating that the party seeking nondisclosure has the burden of proof). On the

other hand, if RSA 105:13

- b is construed as prohibiting disclosure of police

personnel files other than as provided in RSA 105:13

- b i tself

— that is, other

than in the limited case of disclosure to criminal defendants in furtherance of

the State’s obligations under Brady and Laurie

— then RSA 105:13

- b would fall

within the exception set forth in RSA 91

- A:4, I

, for records whose disclosu re is

“otherwise prohibited by statute

. ”

This question is resolved by our decision in Fuchs

. First, as noted above,

we specifically stated with respect to records disclosed to a defendant pursuant

to RSA 105:13

- b that “[n]o further dissemination is

. . . permitted.” Fuchs

, 174

N.H. at 792. But more importantly, the result in Fuchs turned on this very

question. In Fuchs

, the trial court construed RSA 105:13

- b as does the

majority, yet we unanimously reversed its decision. By holding today that

police personnel files may be disclosed under the Right

- to

- Know Law, the

majority is overruling Fuchs

, sub silentio

, without undertaking a stare decisis

analysis.

In Fuchs

, the State determined that it was required to provide three

defendants with information from the personnel files of one or more police

officers because the information was potentially exculpatory. Id

. at 788. Citing

New Hamps hire Rule of Criminal Procedure 12(b)(8) 3

, the State then moved for

protective orders that would prohibit defense counsel “from sharing or further

disseminating these confidential documents and the confidential information

3 New Hampshi re Rule of Criminal Procedure 12(b)(8) provides, in pertinent part:

Protective and Modifying Orders. Upon a sufficient showing of good cause

, the court

may at any time order that discovery required hereunder be denied, restricted, or

deferred, or make su ch other order as is appropriate.

(Emphasis added.)14

contained therein with anyone ot her than Defense Counsel’s staff and the

Defendant.” Id

. The trial court denied the motions, opining, as does the

majority in the case now before us, that the material could constitute public

records subject to disclosure under the Right

- to

- Know Law unle ss their

disclosure would result in an invasion of privacy. Id

. at 788

- 89. The court

reasoned that if the documents provided by the State during discovery were subject to mandatory public disclosure under the Right

- to

- Know Law, then a

protective order ba rring further dissemination of those public documents would

be inappropriate. Id

. The court then invited the State to make the fact

- specific

case necessary under the Right

- to

- Know Law showing that public disclosure of

the specific information at issue wo uld result in an invasion of privacy,

explaining that it would not issue “gag orders” in blank, and that the State’s

reliance on RSA 105:13

- b was “misplaced.” Id

. at 789 (quotation omitted). The

State did not attempt to demonstrate that the specific reco rds were exempt

from disclosure under RSA 91

- A:5, IV

— instead it filed a petition for original

jurisdiction in this court, seeking review of the rulings denying the requested

protective orders. Id

.

We held that the trial court erred. “Given the confi dentiality accorded

police personnel files by RSA 105:13

- b, we hold that the State has shown good

cause, as a matter of law

, for the issuance of protective orders in the cases now

before us.” Id

. at 795 (emphasis added); see N.H. R. Crim. P. 12(b)(8) (req uiring

showing of “good cause” to obtain protective order). We concluded that

material disclosed under RSA 105:13

- b “is to be disclosed specifically to the

defendant,” and “to interpret the statute to allow disclosure or use beyond the

defendant in that p articular case ‘would completely destroy the carefully

crafted statutory process by which such information is released.’” Fuchs

, 174

N.H. at 794 (brackets and quotation omitted). Significantly, we ruled that as a

matter of law the State had shown good ca use to prevent further release of the

material disclosed under RSA 105:13

- b despite the fact that the State had

declined the trial court’s invitation to demonstrate that the materials fell within

the exemption in RSA 91

- A:5, IV for confidential information the public

disclosure of which would result in an invasion of privacy. In other words, we

ruled that good cause existed to prevent disclosure by the defendant of all

material covered by RSA 105:13

- b

— even material that would not be exempt

from disclosur e under RSA 91

- A:5, IV.

The holding in Fuchs cannot be reconciled with the majority’s ruling

today that police personnel records are subject to disclosure under the Right

to

- Know Law. In Fuchs

, that is exactly what the trial court ruled

— it ruled

that information from police personnel files “may constitute public records

subject to disclosure under the Right

- to

- Know Law

. . . unless, for specific or

particularized reasons, their disclosure would result in an invasion of privacy.”

Id

. at 788. Thus, in order for the State to show good cause for a protective

order preventing the defendants from disseminating such public records, the

trial court in Fuchs required the State to carry its heavy burden under the15

Right

- to

- Know Law of demo nstrating that those public records were exempt

from disclosure under RSA 91

- A:5, IV. 4 As the trial court rightly indicated, if

the State provides discovery of documents subject to disclosure under the

Right

- to

- Know Law, “a protective order is inappropri ate.” Id

. at 789. Thus, to

show good cause for the issuance of a protective order, the State in Fuchs

needed to carry its burden of proof under RSA 91

- A:5, IV to show that the

specific documents were exempt

— a showing that the trial court invited the

St ate to make, but which the State declined to undertake.

If this court in Fuchs had intended to hold that RSA 105:13

- b made

police personnel records “confidential” only in the limited sense that they would

be exempt from the Right

- to

- Know Law when the age ncy was able to meet its

heavy burden of proof under the RSA 91

- A:5, IV balancing test, then this court

would not have held as it did: that, as a matter of law, the State was entitled to

the protective orders. Rather, this court would have held that the S tate was

entitled to a protective order only with respect to those records that met the

balancing test for exemption under RSA 91

- A:5, IV. In short, we would have

affirmed the trial court’s decision rather than reversing it.

Finally, I believe that, in light of the carefully

- crafted statutory

framework which governs access to police personnel information under RSA

105:13

- b, the majority ’s holding that such information is obtainable pursuant

to a Right

- to

- Know Law request is, at best, illogical. See In r e N.K.

, 169 N.H.

546, 551 (2016) (“We will not interpret a statute to require an illogical result.”

(quotation omitted)); State v. Roger M.

, 121 N.H. 19, 21

- 22 (1981). As the

Division points out, parties in a criminal case could entirely circumvent the

pr otections afforded by RSA 105:13

- b simply by submitting a public records

request under the Right

- to

- Know Law. For example, RSA 105:13

- b, III limits

the ability of the trial judge to review police personnel files in camera

— paragraph III provides that no personnel file shall be opened for the purposes

of obtaining or reviewing non

- exculpatory evidence in a criminal case unless

the sitting judge makes a specific ruling that probable cause exists to believe

that the file contains evidence relevant to that cr iminal case. RSA 105:13

- b,

III. “If the judge rules that probable cause exists, the judge shall

. . . examine

the file in camera

. . . .” Id

. In contrast, under the Right

- to

- Know Law,

whenever there is a question whether materials are exempt from publ ic access,

“the trial judge should conduct an in camera review to determine whether

portions of the materials meet any of the other statutory exemptions.” Prof’l

Firefighters of N.H. v. HealthTrust

, 151 N.H. 501, 506 (2004) (quotation and

brackets omitted ). Thus, a request by a defendant for an officer’s personnel file

under the Right

- to

- Know Law will likely result in an in camera review of

whatever portion of the file the agency asserts is exempt from disclosure under

4 A public entity seeking to avoid disclosure of material under the Right

- to

- Know Law bears the

“heavy burden to shift the balance toward nondisclosure.” Murray v. N.H. Div. of State Police

, 154 N.H. 57 9, 581 (2006).16

RSA 91

- A:5, IV. It defies logic to require a showing of probable cause under

RSA 105:13

- b before a court may review police personnel files in camera

, while

at the same time providing for essentially automatic in camera review whenever

the same materials are requested pursuant to the Right

- t o

- Know Law.

For all of the above reasons, I respectfully dissent.