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- courts/supreme

- court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton

No. 2020

- 0563

SAMUEL PROVENZA

v.

TOWN OF CANAAN

Argued: October 20, 2021

Opinion Issue d: April 22, 2022

Milner & Krupski, PLLC

, of Concord ( John S. Krupski on the brief and

orally), for the plaintiff.

Town of Canaan, filed no brief.

American Civil Liberties Union of New Hampshire Foundation

, of

Concord ( Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and

Henry R. Klementowicz orally), for the intervenor, Valley News.

Malloy & Sullivan, Lawyers Professional Corporation

, of Hingham,

Massachusetts ( Gregory V. Sullivan

, on the brief) for Union Leader Corporation

and Ne w England First Amendment Coalition as amici curiae

.2

M AC DONALD, C.J. The plaintiff, Samuel Provenza, formerly employed as

a police officer by the defendant, Town of Canaan (Town), appeals an order of

the Superior Court ( Bornstein

, J.) that: (1) denied hi s petition for declaratory

judgment and “request for temporary and permanent injunctive and other

relief”; and (2) granted the cross

- claim of the intervenor, the Valley News

. Provenza sought to bar public disclosure 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; the Valley News

sought release of the report under RSA c hapter 91

- A, the Right

- to

- Know Law.

See RSA ch. 91

- A (2013 & Supp. 2021). We affirm.

I. Background

We summarize the pertinent facts found by the trial court or supported

by the record. On November 30, 2017, Provenza was involved in a motor

vehicle stop that received media coverage in the Upp er Valley. Provenza was responding to a call received by police dispatch about a suspicious vehicle

following a town school bus. He did not activate the camera in his cruiser

before responding. When he arrived at the location of the bus, he observed a

v ehicle closely following the bus and initiated a traffic stop. The driver

explained that she was following the bus because her daughter had been

having issues with the school bus operator. When Provenza attempted to

arrest the driver of the vehicle, she physically resisted.

The driver subsequently filed a formal complaint against Provenza in

which she alleged that he had used excessive force. The Town commissioned

Municipal Resources, Inc. to investigate the encounter. Municipal Resources

filed a re port (Report) with the Town. In February 2019, the Valley News filed a

Right

- to

- Know Law request seeking disclosure of the Report. The Town denied

the request, citing the “internal personnel practices” exemption set forth in RSA

91

- A:5, IV (2013) and thi s court’s opinion in Union Leader Corp. v. Fenniman

, 136 N.H. 624 (2007).

In June 2020, the Valley News renewed its request following our

decisions in Union Leader Corp. v. Town of Salem

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

Seacoast Newspapers v. City of Portsmout h

, 173 N.H. 325 (2020). The Town

informed Provenza of the request and he then filed this lawsuit against the

Town seeking declaratory and injunctive relief under a variety of theories to

prevent the Town from releasing the Report. The Valley News filed a motion to

intervene, which the trial court granted. The Valley News then filed an objection to Provenza’s request for injuncti ve relief and a cross

- claim seeking a

ruling that the Report is subject to disclosure under the Right

- to

- Know Law.

The Valley N ews also argued that, because Provenza was not a “person

aggrieved” under RSA 91

- A:7 (Supp. 2021)

, he did not have standing to bring

this action

.3

In September 2020, the trial court held a hearing during which counsel

for Provenza, the Town, and the Valle y News participated

. At that hearing, the

parties agreed that the order to be issued by the trial court would serve “as a

final adjudication on the merits of both [Provenza]’s requests for declaratory

judgment and for preliminary and permanent injunctions and on the merits of

Valley News’s crossclaim.”

In its order, the trial court “assume[d] without deciding that [Provenza] is

a ‘person aggrieved’ within the meaning of RSA 91

- A:7,” and “further rule[d]

that [Provenza] has standing to maintain this actio n under RSA 491:22 and

RSA 498:1.” After a detailed discussion of the analysis to be applied when

determining whether disclosure of public records constitutes an invasion of

privacy under RSA 91

- A:5, IV, see Union Leader Corp. v. Town of Salem

, 173

N.H. 3 45, 355 (2020), the court concluded that the Report was subject to

disclosure under the Right

- to

- Know Law. The Town requested that certain

medical information, license plate numbers, and the names of minors be

redacted from the Report. The Valley News di d not object. The trial court

agreed that the information should be redacted, concluding that the privacy

interest in this information outweighed any public interest. Provenza then filed

this appeal.

II. Standard of Review

We defer to the trial cou rt’s findings of fact if they are supported by the

evidence and are not erroneous as a matter of law. Town of Lincoln v.

Chenard

, 174 N.H.

___,

___ (decided Jan. 22, 2022) (slip op. at 3)

. We review

the trial court’s interpretation of statutes, including the Right

- to

- Know Law, de

novo

. 38 Endicott St. N., LLC v. State Fire Marshall

, 163 N.H. 656, 660 (2012);

N.H. Ctr. for Pub. Interest Journalism v. N.H. Dep’t of Justice

, 173 N.H. 648,

6 52 (2020). We resolve questions regarding the Right

- to

- Know Law with a view

to providing the utmost information in order to best effectuate the law’s

statutory and constitutional objectives. N.H. Ctr. for Pub. Interest Journalism

, 173 N.H. at 653. Accor dingly, we construe provisions favoring disclosure

broadly, while construing exemptions restrictively. Id

. When the facts are

undisputed, we review the trial court’s balancing of the public interest in

disclosure and the interests in nondisclosure de nov o

. N.H. Right to Life v.

Dir., N.H. Charitable Trusts Unit

, 169 N.H. 95, 111 (2016). The party resisting

disclosure bears a heavy burden to shift the balance toward nondisclosure. Id

.

III. Analysis

The Right

- to

- Know Law provides: “Any person aggrieved by a violation of

this chapter may petition the superior court for injunctive relief.” RSA 91

- A:7.

The Valley News argues that Provenza is not a “person aggrieved” under this

statute. The Valley News further contends that the exemptions set fo rth in the

Right

- to

- Know Law do not create statutory privileges that can be invoked to4

prevent a public body from disclosing information. It argues that exemptions

in the Right

- to

- Know Law “merely provide a license to a public body to withhold

information ”

— they do not prevent the public body “from voluntarily disclosing

any records, even if they are exempt.” Thus, the Valley News asserts, Provenza

lacked standing to bring this action.

In this case, the trial court granted the motion to intervene filed by the

Valley News. The Valley News then filed its claim against the Town pursuant to

RSA 91

- A:7 in which it sought a ruling that the Report is a public record that

must be made available for inspection by the public under RSA chapter 91

-

A. The tri al court’s order reflects that Provenza’s petition and the Valley News’

claim were considered together at a hearing on September 15, 2020, with

agreement by the parties that the order of the trial court resulting from that

hearing would act as a final adju dication on the merits of both Provenza’s

petition and the Valley News’ Right

- to

- Know request

.

In its order addressing whether disclosure of the Report would constitute

an invasion of privacy under RSA 91

- A:5, IV, the trial court determined that

Provenz a, “as the party opposing disclosure,” bore the heavy burden of

demonstrating that the materials should not be disclosed. See Union Leader

Corp. v N.H. Housing Fin

. Auth

. , 142 N.H. 540, 554 (1997) (placing burden on

the private developer oppos ing release by the New Hampshire Housing Finance

Authority of documents sought by two newspapers pertain ing to developer’s

housing developments). Thus, Provenza was treated as a party in the

proceedings in the claim filed by the Valley News

. Accordingly, we conclude

that he was entitled to appeal the order granting the Valley News’ request

. See

id

. at 544

- 45 (deciding appeal filed by private developer of order requiring

disclosure of documents under Right

- to

- Know Law); cf

. Seacoast Newspapers v.

City of Portsmouth

, 173 N.H. 325

, 330 (2020) (where newspaper sought copy of

arbitration decision involving former police officer and City answered that it did

not object to release of the decision, Union that represented officer allowed by

trial court to intervene in order t o oppose newspaper’s Right

- to

- Know Law

petition). Provenza is able to raise all of his arguments under the Right

- to

Know Law in his appeal from the grant of the Valley News’ request

. Therefore

, given the specific procedural history of this case, we need not decide whether

he was a “person aggrieved” under RSA 91

- A:7.

We have not yet addressed whether RSA 91

- A:7 provides a remedy for, and

grants standing to, an individual who seeks to pre vent disclosure of

information pursuant to the Right

- to

- Know Law

. Compare Campaign for

Accountability v. C CRF , 815 S.E.2d 841 (Ga. 2018) (holding that parties with

an interest in nondisclosure of public records pertaining to them may pursue a

lawsuit to seek compliance with the state Open Records Act), and Beckham v.

B d. of Educ. of Jefferson C t y

. , 873 S.W.2d 575 (Ky. 1994) (holding that a party

affected by the decision of a public agency to release records pursuant to state

Open Records Act had standing to contest the agency decision in court), with5

Chrysler Corp. v. Bro wn , 441 U.S. 281 (1979) (holding that federal Freedom of

Information Act does not provide a remedy for one who seeks to prevent

disclosure), and R .I Federation of Teachers v. Sundlun , 595 A.2d 799 (R.I.

1991) (holding that state Access to Public Records Act does not provide a

reverse remedy to prevent disclosure). T he legislature may wish to consider

whether clarification as to who is entitled to seek relief under RSA 91

- A:7 is

warra nted.

We now turn to the question of whether the Report is subject to release

under the Right

- to

- Know Law. The purpose of RSA chapter 91

- A “is to ensure

both the greatest possible public access to the actions, discussions and records

of all public bo dies, and their accountability to the people.” RSA 91

- A:1 (2013).

We note that no party argues that the Report is not a governmental record. See

RSA 91

- A:1

- a, III (2013). The legislature has recognized that certain

governmental records are exempt from d isclosure under this chapter. See RSA

91

- A:4, I (2013) (every citizen has right to inspect governmental records “except

as otherwise prohibited by statute or RSA 91

- A:5”).

Although, in his brief, Provenza lists fifteen questions “presented for

review, ” we conclude that determining whether the Report is subject to

disclosure requires resolution of the following: (1) whether RSA 105:13

- b bar s

disclosure; (2) whether RSA 516: 36 and/or State Personnel Rules bar

disclosure; and (3) whether RSA 91

- A:5, IV ba r s disclosure.

We begin by setting forth the language of RSA 91

- A:5, IV in its entirety

. Provenza relies upon the emphasized language to support his claim that the

Report is exempt.

IV. 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

. Without otherwise compromising

the confidentiality of the files, nothing in this paragraph shall

prohibit a public body or agency from releasing information relative

to heal th or safety from investigative files on a limited basis to

persons whose health or safety may be affected.

Provenza also argues that the trial court erred by failing to properly

consider RSA 105:13

- b and RSA 516:36, II in its analysis. RSA 105:13

- b

(20 13), 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 the6

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 guilt.

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

exculpator

y, 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 cri minal 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 em ploying 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 criminal

case. Only those portions of the file which the judge determines to be

rel evant 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 treated as confidential and shall be

returned to the police department employing the officer.

RSA chapter 516, “Witnesses,” is found in Title LIII of the Revised

Statutes Annotated, which is entitled “Proceedings in Court.” RSA 516:36

(2021) provides:

516:36 Written Policy Directives to Police Officers and

Investigators.

I. In any civ il action against any individual, agency or governmental entity, including the state of New Hampshire, arising

out of the conduct of a law enforcement officer having the powers

of a peace officer, standards of conduct embodied in policies,

procedures, rule s, regulations, codes of conduct, orders or other

directives of a state, county or local law enforcement agency shall

not be admissible to establish negligence when such standards of

conduct are higher than the standard of care which would

otherwise have b een applicable in such action under state law.

II. All records, reports, letters, memoranda, and other documents

relating to any internal investigation into the conduct of any

officer, employee, or agent of any state, county, or municipal law

enforcement agency having the powers of a peace officer shall not

be admissible in any civil action other than in a disciplinary action

between the agency and its officers, agents, or employees. Nothing

in this paragraph shall preclude the admissibility of otherwise7

r elevant records of the law enforcement agency which relate to the

incident under investigation that are not generated by or part of

the internal investigation. For the purposes of this paragraph,

“ internal investigation ” shall include any inquiry conducted by the

chief law enforcement officer within a law enforcement agency or

authorized by him.

A. RSA 105:13

- b

Provenza argues that RSA 105:13

- b creates an exception to the Right

- to

Know Law that applies to the Report

. However, by its express terms, RSA

1 05:13

- b “pertains only to information maintained in a police officer’s

personnel file.” N.H. Ctr. for Pub. Interest Journalism

, 173 N.H. at 656. As we

stated in N.H. Center for Public Interest Journalism

, “[h]ad the legislature

intended RSA 105:13

- b to a pply more broadly to personnel information

, regardless of where it is maintained, it would have so stated.” Id

. Here, the

trial court found that “there is nothing in the record to suggest that the Report

is contained in or is a part of [Provenza’s] perso nnel file.” On appeal, Provenza

has not demonstrated that this finding is unsupported by the evidence or

erroneous as a matter of law. Accordingly, the Report is not exempt from

disclosure under the Right

- to

- Know Law by RSA 105:13

- b.

Provenza also relie s upon Pivero v. Largy

, 143 N.H. 187 (1998), which

considered an officer’s right under RSA 275:56 (1987) to obtain a copy of an

internal investigation that concluded that complaints against the officer were

unfounded. After concluding that the records wer e not covered by that statute,

we o bserved in dicta that “[u]ntil an internal investigation produces information

that results in the initiation of a disciplinary process, public policy requires

that internal investigation files remain confidential.” Piver o

, 143 N.H. at 191.

The public policy considerations included “instilling confidence in the public to

report, without fear of reprisal, incidents of police misconduct to internal

affairs

, ” and preventing disclosure of confidential internal affairs matters that

could seriously hinder an ongoing investigation or future law enforcement

efforts. Id

.

In Pivero

, we observed that police internal investigative files were

categorically exempt from disclosure under RSA 91

- A:5, citing Union Leader

Corp. v. Fenniman

, 136 N.H. 624 (1993). Fenniman had so held, based upon

the court’s belief that the legislature had “plainly made its own determination”

that such documents should be categorically exempt. Fenniman

, 136 N.H. at

627. Accordingly, we had no cause to consi der the appropriate analysis to

apply under the Right

- to

- Know Law, as that issue had been previously settled

in Fenniman

.

In Union Leader Corp. v. Town of Salem

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

overruled Fenniman to the extent that it decided that records are ca tegorically8

exempt from disclosure under the Right

- to

- Know Law instead of being subject

to a balancing test to determine whether they are exempt from disclosure.

Thus, the statement in Pivero that police internal investigative files were categorically exe mpt from disclosure under RSA 91

- A:5, which was supported

by citation to Fenniman

, is no longer good law. Understood in that light, the

public policy considerations identified in Pivero may still support maintaining

the confidentiality of internal investi gation files, see Union Leader Corp

., 173

N.H. at 355 (noting one test to determine whether material is “confidential” is

whether disclosure is likely to impair the government’s ability to obtain

necessary information in the future), but no longer are such files categorically

exempt from disclosure under the Right

- to

- Know Law. Establishing that

records are “confidential” by itself does not result in their being exempt from

disclosure under the Right

- to

- Know Law

— rather, that determination involves

the thr ee

- step analysis that the trial court undertook in this case. See id

.

B. RSA 516:36 and State Personnel Rules

Nor does RSA 516:36 support Provenza ’s request for relief. The language

of this statute makes clear that it governs information sought f or use in the

course of civil litigation. Petition of N.H. Div. of State Police

, 174 N.H. 176, 185

(2021). It is limited to questions of admissibility

. A s the Valley News notes in

its brief, information can be both inadmissible in court under RSA 516:36

, and

public under the Right

- to

- Know Law. Contrary to Provenza’s argument, we

agree with the trial court that because RSA 516:36 governs admissibility, it

“has no bearing on the Right

- to

- Know analysis.”

Provenza also argues that, because he is currently employed as a State

Trooper with the New Hampshire Department of Safety, rules adopted by the

New Hampshire Division of Personnel that require the State to keep

investigations confidential and separate from a State employe e’ s personnel file

unless discipli ne is issued prevent disclosure of the Report. See N.H. Admin.

R. Per 1501.04. We disagree. Given that there is no dispute that the Report

was commissioned by the Town to investigate actions taken by Provenza while

employed by the Town and also pr epared during his employment with the

Town, we conclude that the State’s personnel rules also do not apply. See N.H.

Admin. R. Per 101.02

.

C. RSA 91

- A:5, IV

Turning to RSA 91

- A:5, IV, as we earlier observed, the purpose of the

Right

- to

- Know Law 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. “The party resisting disclosure bears a heavy

burden to shift the balance toward nondisclosure.” Union Leader v. N.H.

Housing Fin

. Auth

. , 142 N.H. at 554 (quotation omitted). We have previously

recognized that an “expansive construction” of the language in RSA 91

- A:5, IV9

that establishes exemptions would allow “the exemption to swallow the rule

and i s inconsistent with the purposes and objectives of the right

- to

- know law.”

Mans v. Lebanon School Bd.

, 112 N.H. 160, 162 (1972); see Herron v.

Northwood

, 111 N.H. 324, 327 (1971) (observing that the legislature “has

placed a high premium on the public’s r ight to know”).

Here, Provenza contends that the trial court erred in its balancing of the

public right to access governmental information against his privacy interests.

Courts must engage in a three

- step analysis when considering whether

disclosure of public records constitutes an invasion of privacy under RSA 91

- A:5, IV. Union Leader Corp. v. Town of Salem

, 173 N.H. at 355. This

balancing test applies to all categories of records enumerated in RSA 91

- A:5,

IV. See id

. at 357; N.H. Ctr. for Pub. Inter est Journalism v. N.H. Dep’t of

Justice

, 173 N.H. at 659. First, the court evaluates whether there is a privacy

interest that would be invaded by the disclosure. Union Leader

, 173 N.H. at

355. Second, the court assesses the public interest in disclosure

. Id

. Third,

the court balances the public interest in disclosure against the government’s

interest in nondisclosure and the individual’s interest in nondisclosure. Id

. On appeal, in the absence of disputed facts, we review the trial court’s

balancing of the public interest in disclosure and the interests in nondisclosure

de novo

. Union Leader v. N.H. Housing Fin. Auth.

, 142 N.H. at 555.

We conclude that Provenza’s privacy interest here is not weighty. As the

trial court explained, the Report does not reveal intimate details of Provenza’s

life, see N.H. Civil Liberties Union v. City of Manchester

, 149 N.H. 437, 441

(2003), but rather information relating to his con duct as a government

employee while performing his official duties and interacting with a member of

the public. Cf. Lamy v. N.H. Pub

. Util s. Comm’n

, 152 N.H. 106, 113 (2005)

(noting that purpose of Right

- to

- Know Law is to ensure that government’s

activiti es be open to the sharp eye of public scrutiny, not that information

about private citizens that happens to be in the warehouse of the government

be so disclosed); Kroeplin v. Wis. Dep’t of Natural Resources

, 725 N.W.2d 286,

301 (Wis. App. 2006) (stating t hat when an individual “becomes a law

enforcement officer, that individual should expect that his or her conduct will

be subject to greater scrutiny. That is the nature of the job.”).

With respect to the government’s interest in nondisclosure, we first note

that the Town makes no argument on appeal that it has any interest in

nondisclosure. Indeed, the Town has filed neither a brief nor a memorandum

of law in this court. Rather, before the trial court, the Town requested that

certain information

— spec ifically, medical information, license plate numbers,

and the names of minors

— be redacted from the Report. Without objection,

the trial court agreed that those redactions would be made. To the extent that

Provenza argues that the government has an inte rest in nondisclosure because

disclosure will have a chilling effect on future investigations, we agree with the

Valley News that Provenza has not carried his burden of demonstrating that10

disclosure, in light of the facts of this case, is likely to have an y such chilling

effect. Cf

. Goode v. N.H. Legislative Budget Assistant

, 148 N.H. 551, 556

(2002) (stating that there was no evidence establishing a likelihood that

disclosure would lead auditors to refrain from being candid and forthcoming).

As for th e public interest in disclosure, we conclude that it is significant.

The public has a s ubstantial interest in information about what its government

is up to, see Lamy

, 152 N.H. at 111, as well as in knowing whether a

government investigation is comprehens ive and accurate, see Reid v. N.H.

Attorney Gen

. , 169 N.H. 509, 532 (2016). In balancing the interests in

disclosure and nondisclosure, the trial court concluded that Provenza failed to

carry his heavy burden of shifting the balance toward nondisclosure. After

considering all of the arguments of the parties, we reach the same result.

Lastly, we note that Provenza argues that disclosure of the Report will

violate his right to procedural due process. We conclude that this argument

lacks merit, and warrants no further discussion. See Garrison v. Town of

Henniker

, 154 N.H. 26, 35 (2006). Accordingly, the decision o f the trial court is

affirmed.

Affirmed

.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.