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http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham 

No. 2019-0135

SEACOAST NEWSPAPERS, INC.

v.

CITY OF PORTSMOUTH

Argued: November 20, 2019

Opinion Issued: May 29, 2020

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Richard C. 

Gagliuso on the brief and orally), and American Civil Liberties Union of New 

Hampshire, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on 

the brief), for the plaintiff.

Jackson Lewis P.C., of Portsmouth (Thomas M. Closson on the brief and 

orally), for the defendant.

Nolan Perroni, PC, of North Chelmsford, Massachusetts (Peter J. Perroni

on the brief and orally), for the intervenor, New England Police Benevolent 

Association, Local 220.

DONOVAN, J. The plaintiff, Seacoast Newspapers, Inc., appeals an order 

of the Superior Court (Messer, J.) denying its petition to disclose an arbitration 
2

decision concerning the termination of a police officer by the defendant, the 

City of Portsmouth. Seacoast primarily argues that we have previously 

misconstrued the “internal personnel practices” exemption of our Right-toKnow Law. See RSA 91-A:5, IV (2013). Today, we take the opportunity to 

redefine what falls under the “internal personnel practices” exemption, 

overruling our prior interpretation set forth in Union Leader Corp. v. 

Fenniman, 136 N.H. 624 (1993). As explained below, we conclude that only a 

narrow set of governmental records, namely those pertaining to an agency’s

internal rules and practices governing operations and employee relations, falls

within that exemption. Accordingly, we hold that the arbitration decision at 

issue here does not fall under the “internal personnel practices” exemption,

vacate the trial court’s order, and remand for the trial court’s consideration of

whether, or to what extent, the arbitration decision is exempt from disclosure 

because it is a “personnel . . . file[ ].” RSA 91-A:5, IV. We also deny Seacoast’s 

request for attorney’s fees.

I. Factual and Procedural History

The following facts are undisputed or supported by the record. In 2015, 

the City of Portsmouth terminated the employment of Aaron Goodwin, a former 

police officer with the Portsmouth Police Department. Following Goodwin’s 

termination, the Portsmouth Police Ranking Officers Association, New England 

Police Benevolent Association, Local 220 (Union) filed a grievance on his behalf

challenging the termination and seeking his reinstatement. Arbitration of the 

grievance was conducted in accordance with the Union’s collective bargaining 

agreement and administered by an independent arbitrator. The final decision

was issued in 2018.

Goodwin’s alleged misconduct while employed by the Department has 

been the subject of significant media attention throughout New Hampshire and 

beyond, given the public’s significant interest in learning about how its public 

officials resolve matters involving alleged breaches of trust and conflicts of 

interest by public employees and, in particular, police officers. To that end, a 

reporter employed by Seacoast submitted a written request to the City seeking 

access to a copy of the arbitration decision. The City agreed that it should be 

released to the public. However, the City’s attorney informed the reporter that 

the City would not release the decision in light of the position taken by the 

Union that it was exempt from disclosure under the Right-to-Know Law’s 

exemptions for “internal personnel practices” and “personnel . . . files.” See

RSA 91-A:5, IV.

In response, Seacoast filed a petition in superior court seeking to compel 

disclosure of the decision and requesting attorney’s fees. It argued that the 

City had “not demonstrated any reasonable valid basis for denying access” to 

the decision. The City answered that it did not object to the relief sought by
3

Seacoast with the exception of its request for attorney’s fees. However, the 

Union moved to intervene and the trial court granted its motion. The Union 

opposed Seacoast’s petition, reiterating its position that both exemptions 

precluded disclosure of the decision. After a hearing and in camera review of 

the decision, the trial court concluded that it was exempt from disclosure 

under the “internal personnel practices” exemption. See RSA 91-A:5, IV. The 

trial court reasoned that the arbitration grievance “process was conducted 

internally and was performed for the benefit of . . . Goodwin and his former 

employer” and therefore bore “all the hallmarks of an internal personnel 

practice.” The trial court therefore did not determine whether the decision is

also exempt from disclosure because it is a personnel file. See RSA 91-A:5, IV. 

This appeal followed.

II. Standard of Review

At the outset, we describe the appropriate standard of review in Right-toKnow Law matters. Part I, Article 8 of the New Hampshire Constitution 

provides that “the public’s right of access to governmental proceedings and 

records shall not be unreasonably restricted.” The Right-to-Know Law states

that “[e]very citizen . . . has the right to inspect all governmental records . . . 

except as otherwise prohibited by statute or RSA 91-A:5.” RSA 91-A:4, I 

(2013). 

The ordinary rules of statutory construction apply to our interpretation 

of the Right-to-Know Law, and we therefore look to the plain meaning of the 

words used when interpreting the statute. Union Leader Corp. v. City of 

Nashua, 141 N.H. 473, 475 (1996). Ultimately, this court interprets the Rightto-Know Law with a view toward disclosing the utmost information in order to 

best effectuate our statutory and constitutional objective of facilitating access 

to public documents. Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 

540, 546 (1997). Accordingly, although the statute does not provide for 

unfettered access to public records, we broadly construe provisions in favor of

disclosure and interpret the exemptions restrictively. Id. We also consider the 

decisions of courts in other jurisdictions because similar acts are in pari

materia and interpretatively helpful. Id.

III. Analysis

At issue here are two exemptions from disclosure set forth in the Rightto-Know Law for records pertaining to: (1) “internal personnel practices”; and

(2) “personnel . . . files.” RSA 91-A:5, IV. The trial court relied on the progeny 

of Fenniman in ruling that the arbitration decision is exempt because it is an 

internal personnel practice.
4

A. “Internal Personnel Practices” Jurisprudence

In Fenniman, we broadly construed the “internal personnel practices” 

exemption to categorically exclude from disclosure records documenting a 

public agency’s internal discipline of an employee. Fenniman, 136 N.H. at 626-

27. Although we recognized that “we generally interpret the exemptions in [the 

Right-to-Know law] restrictively,” we also stated that “the plain meanings of the 

words ‘internal,’ ‘personnel,’ and ‘practices’ are themselves quite broad.” Id. at 

626. As a result, we held that documents compiled during an internal 

investigation of a police department lieutenant accused of making harassing

phone calls were “categorically exempt” from disclosure under the “internal 

personnel practices” exemption because “they document[ed] procedures leading 

up to internal personnel discipline, a quintessential example of an internal 

personnel practice.” Id. at 625-27.

Our interpretation of the “internal personnel practices” exemption in 

Fenniman departed from our customary Right-to-Know Law jurisprudence in 

two significant ways. Reid v. N.H. Attorney General, 169 N.H. 509, 519-20 

(2016). First, we failed to interpret the exemption narrowly and, second, we

declined to employ a balancing test. Id. at 520; see, e.g., Lambert v. Belknap 

County Convention, 157 N.H. 375, 382-86 (2008) (describing the balancing test 

employed to determine whether public records are exempt from disclosure 

because their release would constitute invasion of privacy). Our analysis in

Fenniman had additional shortcomings, including its failure to consult 

decisions from other jurisdictions interpreting similar statutes, in particular,

cases interpreting the federal Freedom of Information Act (FOIA) — an inquiry 

we make in cases requiring us to interpret certain provisions of the Right-toKnow Law and its failure to consider whether a broad interpretation of the 

“internal personnel practices” exemption might render any of the remaining 

statutory language redundant or superfluous — in particular, the language 

exempting “personnel . . . files.” Reid, 169 N.H. at 520; see RSA 91-A:5, IV.

We subsequently applied the “internal personnel practices” exemption in 

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

concluded that an internal investigatory report regarding allegations of threats 

and harassment made by an employee of the North Conway Water Precinct fell 

under the “internal personnel practices” exemption. Id. at 2, 4. Although the 

report was prepared by outside investigators, we relied on Fenniman and

reasoned that “the investigation could have resulted in disciplinary action,” and 

thus the report pertained to “internal personnel practices.” Id. at 4. The 

Hounsell Court failed to analyze the “internal personnel practices” language or 

consider the import of RSA 91-A:5’s other exemptions.1

 

1

In Montenegro v. City of Dover, 162 N.H. 641, 649-50 (2011), we applied, for the first time, the 

“internal personnel practices” exemption outside the context of employee misconduct or discipline. 

Relying in part on Fenniman, we concluded that “the job titles of persons who monitor [a] City’s 

surveillance equipment” did not fall within the exemption. Id. at 650.
5

Then, in Reid, 169 N.H. at 523, we limited the application of Fenniman’s 

broad interpretation of the exemption. Although neither party in Reid asked us 

to overrule Fenniman, we pointed out the shortcomings of Fenniman’s analysis 

of the exemption’s language, as described above. Id. at 519-22. Accordingly, 

we declined to extend the holding of either Fenniman or Hounsell “beyond their 

own factual contexts” and instead “return[ed] to our customary standards for 

construing the Right-to-Know Law.” Id. at 521-22. We clarified that to qualify

“an investigation into employee misconduct as a personnel practice, . . . the 

investigation must take place within the limits of an employment relationship.” 

Id. at 523. Applying this interpretation of the exemption, we held that the 

records of an investigation by the attorney general of a county attorney did not 

fall within the exemption because the attorney general was not the employer of 

the county attorney. Id. at 515, 525-26. We remanded for the trial court to

determine whether the records fell under the exemption for personnel files. Id. 

at 527.

Most recently, in Clay v. City of Dover, 169 N.H. 681, 684, 688 (2017), we 

held that the completed rubric forms from a school superintendent search 

committee fell under the “internal personnel practices” exemption. Relying 

primarily on Reid, we concluded that “the completed rubric forms relate to 

hiring, which is a classic human resources function,” and therefore “pertain to 

‘personnel practices.’” Id. at 686. We also determined that the forms were 

“internal” because “they were filled out by members of the school board’s 

superintendent search committee on behalf of the school board, the entity that 

employs the superintendent.” Id. at 687. Nowhere in Clay did we indicate that 

the parties had requested that we overrule our prior interpretation of the 

“internal personnel practices” exemption.

B. Stare Decisis Analysis

On appeal, Seacoast argues that we misconstrued the Right-to-Know 

Law’s “internal personnel practices” exemption in Fenniman and urges us to 

overrule that case. We have acknowledged that, in Fenniman, we departed 

from our customary Right-to-Know Law analysis. See Reid, 169 N.H. at 519-

22. That recognition, in conjunction with Seacoast’s request that we overrule 

Fenniman, triggers our stare decisis analysis. See State v. Quintero, 162 N.H. 

526, 539 (2011).

Stare decisis, “the idea that today’s Court should stand by yesterday’s 

decisions,” Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401, 2409 (2015),

commands great respect in a society governed by the rule of law, and we do not 

lightly overrule a prior opinion, State v. Duran, 158 N.H. 146, 153 (2008). 

“Thus, when asked to reconsider a holding, the question is not whether we 

would decide the issue differently de novo, but whether the ruling has come to 

be seen so clearly as error that its enforcement was for that very reason 

doomed.” Id.
6

We will overturn a decision only after considering: (1) whether the rule 

has proven to be intolerable simply by defying practical workability; (2) whether 

the rule is subject to a kind of reliance that would lend a special hardship to 

the consequence of overruling; (3) whether related principles of law have so far 

developed as to have left the old rule no more than a remnant of abandoned 

doctrine; and (4) whether facts have so changed, or come to be seen so 

differently, as to have robbed the old rule of significant application or 

justification. Ford v. N.H. Dep’t of Transp., 163 N.H. 284, 290 (2012). 

Although these factors guide our judgment, no single factor is dispositive. Id.

First, we recognize that a broad interpretation of the “internal personnel 

practices” exemption, which leads to a subset of public documents being

categorically exempt from disclosure, is easily applied. Although Reid, 169 

N.H. at 522-23, limited Fenniman’s broad interpretation of the “internal 

personnel practices” exemption, we cannot conclude that the rule, as it stands,

defies practical workability.

Second, we consider whether Fenniman’s interpretation is subject to a 

kind of reliance that would lend a special hardship to the consequence of 

overruling it. See Ford, 163 N.H. at 290. “Reliance interests are most often 

implicated when a rule is operative ‘in the commercial law context . . . where 

advance planning of great precision is most obviously a necessity.’” Quintero, 

162 N.H. at 537 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 

505 U.S. 833, 855-56 (1992) (brackets omitted)). Such interests are not 

present here and the Union has identified no reliance interest implicated by 

Fenniman’s interpretation.

Third, we consider whether related principles of law have developed such 

that the old rule is no more than a remnant of an abandoned doctrine. Ford, 

163 N.H. at 290. Fenniman is an outlier in our Right-to-Know Law

jurisprudence, in part, because it broadly interpreted one of the statutory 

exemptions. Despite our broad interpretation of “internal personnel practices” 

in Fenniman, we have otherwise advanced a narrow construction of the other 

exemptions set forth in our Right-to-Know Law. See Montenegro, 162 N.H. at 

649-50 (narrowly interpreting the “internal personnel practices” exemption to 

not include job titles); Prof’l Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H.

699, 707-10 (2010) (narrowly interpreting the exemption for “confidential, 

commercial, or financial information” the disclosure of which would constitute 

an invasion of privacy); Lambert, 157 N.H. at 379-86 (narrowly interpreting 

various exemptions); N.H. Civil Liberties Union v. City of Manchester, 149 N.H.

437, 439-42 (2003) (narrowly interpreting the exemption for records “whose 

disclosure would constitute invasion of privacy”); Goode v. N.H. Legislative 

Budget Assistant, 148 N.H. 551, 554-58 (2002) (narrowly interpreting the 

exemption for “[r]ecords pertaining to . . . confidential . . . information”).
7

That our Right-to-Know Law jurisprudence since Fenniman has narrowly 

construed other exemptions within RSA chapter 91-A supports our conclusion 

that a broad interpretation of the “internal personnel practices” exemption is, 

at the very least, an abandoned principle.

2 See State v. Matthews, 157 N.H. 

415, 420 (2008) (concluding that a rule was “a remnant of an abandoned 

doctrine,” in part, because it was “inconsistent with . . . our current 

jurisprudence”). Although in Reid we limited the application of Fenniman to its 

own factual context, overruling Fenniman’s interpretation of the exemption 

would further allow us to “return to our customary standards for construing 

the Right-to-Know Law.” Reid, 169 N.H. at 522.

Fourth, we ask whether facts have so changed, or come to be seen so 

differently, as to have robbed the old rule of significant application or 

justification. Ford, 163 N.H. at 290. “‘[We] are sometimes able to perceive 

significant facts or understand principles of law that eluded [our] predecessor 

and justify departures from existing decisions.’” Duran, 158 N.H. at 154, 

(quoting Casey, 505 U.S. at 866). We see the interpretation of the “internal 

personnel practices” exemption differently now than we did when Fenniman

was decided. As noted above, in Fenniman, we failed to consider a number of 

factors that we typically analyze when interpreting the Right-to-Know Law. In 

particular, the Fenniman Court failed to consider: (1) the principles compelling 

transparent governance integrated into our constitution and the Right-to-Know 

Law’s purpose; (2) the meaning of the exemption’s words when read together; 

(3) the federal courts’ interpretation of a similar exemption in FOIA; and (4) 

whether a broad interpretation of the exemption renders another exemption

redundant.

As a threshold matter, the Fenniman Court failed to consider the import 

of our constitution and the Right-to-Know Law’s purpose, both of which compel 

us to interpret the statute “with a view to providing the utmost information” 

and “facilitating access to all public documents.” Prof’l Firefighters of N.H., 159 

N.H. at 703 (quotation omitted); see Orford Teachers Assoc. v. Watson, 121 

N.H. 118, 119-20 (1981). Thus, our broad interpretation of the exemption in 

Fenniman, which has resulted in a broad category of governmental documents 

being withheld from public inspection, is contradictory to our state’s principles 

of open government. See Reid, 169 N.H. at 532 (recognizing the public’s 

significant interest in knowing that a government investigation is 

comprehensive and accurate); Prof’l Firefighters of N.H., 159 N.H. at 709 

(“[K]nowing how a public body is spending taxpayer money in conducting 

public business is essential to the transparency of government, the very 

purpose underlying the Right-to-Know Law.”); N.H. Civil Liberties Union, 149 

N.H. at 441 (“Official information that sheds light on an agency’s performance 

 

2 Although we recently applied Fenniman’s interpretation of the “internal personnel practices” 

exemption in Clay, 169 N.H. at 686, we were not asked at that time to reconsider Fenniman’s 

interpretation.
8

of its statutory duties falls squarely within the statutory purpose of the Rightto-Know Law.”).

Furthermore, in Fenniman we simply noted that the meanings of the

individual words in the “internal personnel practices” exemption were “quite 

broad,” Fenniman, 136 N.H. at 626, but did not consider how, when read

together, the words modify one another, thereby limiting the scope of the 

exemption, cf. Reid, 169 N.H. at 522. Thus, we failed to consider the meaning 

of the phrase “internal personnel practices” taken as a whole. See Fenniman, 

136 N.H. at 626 (noting that “the dictionary does not explicitly include 

documents such as internal police investigatory files within the[ ] definitions” of 

the individual words).

The Fenniman Court also did not consider the federal courts’ 

interpretation of a similar exemption in FOIA. RSA chapter 91-A was enacted

just one year after FOIA, and the language of the “internal personnel practices” 

exemption closely tracks the language of a similar FOIA exemption. Compare

RSA 91-A:5, IV (exempting from disclosure records pertaining to “internal 

personnel practices”), with 5 U.S.C. § 552(b)(2) (2018) (exempting from 

disclosure matters “related solely to the internal personnel rules and practices 

of an agency”). Accordingly, we have often looked specifically to federal case 

law for assistance when interpreting the “internal personnel practices”

exemption, although we did not do so in Fenniman. See, e.g., Montenegro, 162 

N.H. at 650; Mans v. Lebanon School Bd., 112 N.H. 160, 162-63 (1972). As a 

result, our construction of the exemption in Fenniman was “markedly broader 

than the United States Supreme Court’s interpretation of that exemption’s 

federal counterpart.” Reid, 169 N.H. at 521.

Finally, in Fenniman we failed to consider whether broadly construing 

the “internal personnel practices” exemption, such that the exemption applies 

to internal investigations of an employee’s misconduct, renders the exemption 

for “personnel . . . files” superfluous. See RSA 91-A:5, IV. The legislature is 

presumed not to use superfluous language and, therefore, a broad

interpretation that renders statutory language irrelevant ignores legislative 

prerogatives. See Duran, 158 N.H. at 155.

Today, as discussed below, we consider these factors and how they 

circumscribe our interpretation of the “internal personnel practices” exemption. 

“‘[W]e owe somewhat less deference to a decision that was rendered without 

benefit of a full airing of all the relevant considerations.’” Duran, 158 N.H. at 

155 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 

709 n.6 (1978) (Powell, J., concurring)). Departure from precedent was 

justified in Duran because the precedent failed to give full consideration to the 

plain language of the statute and rendered other statutory language 

superfluous. See id. at 154. Similar concerns are present here.
9

The Union argues that we should not disturb our construction of the 

“internal personnel practices” exemption in Fenniman because the legislature 

has not corrected our prior rulings by amending RSA 91-A:5, IV, and has 

therefore tacitly endorsed Fenniman’s broad interpretation. However,

legislative inaction does not preclude us from revisiting our interpretation of a 

statute in all circumstances. “Although stare decisis generally ‘has more force 

in statutory analysis than in constitutional adjudication because, in the former 

situation, [the legislature] can correct our mistakes through legislation,’ that is 

not always the case.” Duran, 158 N.H. at 157 (quoting Monell, 436 U.S. at 

695). “We are unwilling to mechanically apply the principles of stare decisis to 

allow a decision that was wrong when it was decided perpetuate as a rule of 

law.” Id. (citing Monell, 436 U.S. at 695). “Neither will we always place on the 

shoulders of the legislature the burden to correct our own error.” Id.

The Union also argues that we should be particularly cautious of 

overruling Fenniman because, during the last legislative session, the legislature 

re-referred a bill to committee that seeks to categorize certain internal 

disciplinary records of police departments as public records for purposes of the 

Right-to-Know Law. We will not be deterred, however, from correcting an error

of our own creation because the legislature considered, but did not enact, a bill 

relating to the same subject matter in a recent legislative session. Moreover, 

we have no basis on which to conclude that any such legislation, if passed,

would address the situation presented by this case.

“When asked to reexamine a prior holding, our task is ‘to test the 

consistency of overruling a prior decision with the ideal of the rule of law, and 

to gauge the respective costs of reaffirming and overruling a prior case.’” 

Quintero, 162 N.H. at 539 (quoting Casey, 505 U.S. at 854). Fenniman’s broad 

interpretation of the “internal personnel practices” exemption substantially

undermines the guarantees protected by the Right-to-Know Law and reduces

its defining goals to lip service. “[S]uch an expansive construction would justify 

the criticism that our act, although promising, is ‘weak and easily evaded.’” 

Mans, 112 N.H. at 162 (quoting Thomas I. Emerson, The System of Freedom of 

Expression, at 672 (1970)). The costs of overruling Fenniman’s interpretation

are insubstantial and heavily outweighed by the rewards. As stated by the 

preamble of the Right-to-Know Law: “Openness in the conduct of public 

business is essential to a democratic society.” RSA 91-A:1 (2013). An overly

broad construction of the “internal personnel practices” exemption has proven 

to be an unwarranted constraint on a transparent government. For the 

reasons stated above, we overrule Fenniman to the extent that it broadly 

interpreted the “internal personnel practices” exemption and its progeny to the 

extent that they relied on that broad interpretation.
10

C. The Arbitration Decision

Freed from the constraints imposed by Fenniman, we now consider the 

proper scope of the “internal personnel practices” exemption and whether the 

arbitration award at issue here is subject to that exemption. We conclude that

the exemption applies narrowly to records pertaining to internal rules and 

practices governing an agency’s operations and employee relations. 

Accordingly, the arbitration decision does not fall within the exemption. In 

light of this conclusion, we need not decide in this case whether Fenniman

should also be overruled to the extent that it applied a per se rule, as opposed 

to a balancing test, prohibiting the disclosure of records that fall under the 

“internal personnel practices” exemption.

Together with Part I, Article 8 of our Constitution, the Right-to-Know Law 

is the crown jewel of government transparency in New Hampshire. Part I, 

Article 8 of the New Hampshire Constitution provides that:

All power residing originally in, and being derived from, the people, 

all the magistrates and officers of government are their substitutes 

and agents, and at all times accountable to them. Government, 

therefore, should be open, accessible, accountable and responsive. 

To that end, the public’s right of access to governmental 

proceedings and records shall not be unreasonably restricted.

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

The preamble of the Right-to-Know Law contains a similar principle, 

stating, in part, that “[t]he 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. The 

purpose of the Right-to-Know Law is to “provide the utmost information to the 

public about what its government is up to.” Goode, 148 N.H. at 555 (quotation 

omitted). Accordingly, the statute furthers “our state constitutional 

requirement that the public’s right of access to governmental proceedings and 

records shall not be unreasonably restricted.” Clay, 169 N.H. at 685 (quotation 

omitted). We therefore resolve questions regarding the Right-to-Know Law with 

a view to providing the utmost information, broadly construing its provisions in 

favor of disclosure and interpreting its exemptions restrictively. Id.; see also

Dept. of Air Force v. Rose, 425 U.S. 352, 361 (1976) (noting that FOIA 

exemptions must be narrowly construed). For these reasons, a narrow 

interpretation of the “internal personnel practices” exemption accords with our 

constitution and the Right-to-Know Law’s underlying purpose.

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

words used.” Reid, 169 N.H. at 522 (quotation omitted). Furthermore, we

often look to federal case law for guidance when interpreting the exemption 
11

provisions of our Right-to-Know Law, because our provisions closely track the 

language used in FOIA’s exemptions. Reid, 169 N.H. at 520.

“[T]he terms ‘internal’ and ‘personnel’ modify the word ‘practices,’ thereby 

circumscribing the provision’s scope.” Id. at 522. As we explained in Reid,

relying on the Supreme Court’s interpretation of FOIA’s “internal personnel 

rules and practices” exemption, known as Exemption 2, “personnel” in this 

context “‘refers to human resources matters.’” Id. (quoting Milner v. 

Department of Navy, 562 U.S. 562, 569 (2011)). “Internal” means “existing or 

situated within the limits of something.” Reid, 169 N.H. at 523 (quotation and 

ellipsis omitted). Therefore, in Reid we construed “internal personnel practices” 

“to mean practices that exist or are situated within the limits of employment.”3

Id. (quotation and brackets omitted). The Supreme Court has further

explained that Exemption 2 relates to records that an agency “must typically 

keep . . . to itself for its own use.” Milner, 562 U.S. at 570-71 n.4. “[T]he 

general thrust of the 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.” Rose, 425 U.S. at 369-

70. Thus, Exemption 2 concerns an agency’s “rules and practices dealing with 

employee relations or human resources,” including “such matters as hiring and 

firing, work rules and discipline, compensation and benefits.” Milner, 562 U.S. 

at 570. Examples of practices falling within Exemption 2 include “personnel’s 

use of parking facilities or regulations of lunch hours, statements of policy as 

to sick leave, and the like.” Rose, 425 U.S. at 363 (quotation omitted).

Pursuant to its interpretation of Exemption 2, in Rose, the Supreme

Court held that one-page case summaries of honor and ethics hearings 

maintained by the United States Air Force did not fall within the exemption. 

Id. at 369-70. The Court reasoned, in part, that the case summaries did “not 

concern only routine matters” of “merely internal significance.” Id. at 370. 

Similarly, in Milner, 562 U.S. at 572, the Court held that data and maps which 

helped store explosives at a naval base were not subject to Exemption 2 

because they did not concern “workplace rules” or the “treatment of 

employees.”

Using Reid and the Supreme Court’s interpretation of FOIA as our 

lodestars, we conclude that the “internal personnel practices” exemption was 

intended to apply only to records pertaining to the internal rules and practices 

governing an agency’s operations and employee relations, not information 

concerning the performance of a particular employee. See Milner, 562 U.S. at 

569-70; Rose, 425 U.S. at 363; Reid, 169 N.H. at 523. As we have explained

 

3

In Reid, we remained bound by Fenniman’s construction of “internal personnel practices” as 

extending to investigations into employee misconduct, and therefore our analysis in that case 

could not further limit the construction of “internal personnel practices.” See Reid, 169 N.H. at 

523.
12

above, this narrow interpretation is consonant with our constitution and the 

purpose of the Right-to-Know Law.

Furthermore, our narrow interpretation recognizes the legislature’s 

decision to enact a separate exemption for “personnel, medical, . . . and other

files.” RSA 91-A:5, IV; see Reid, 169 N.H. at 520. We interpret a statute in the 

context of the entire statutory scheme, N.H. Right to Life v. Dir., N.H. 

Charitable Trusts Unit, 169 N.H. 95, 103 (2016), and the legislature is 

presumed not to use superfluous language, Duran, 158 N.H. at 155.

Like the exemption for personnel files in RSA 91-A:5, IV, FOIA contains 

an exemption, known as Exemption 6, for “personnel and medical files and 

similar files.” 5 U.S.C. § 552(b)(6) (2018). As the Supreme Court has 

explained, Exemption 6 shields from disclosure, in certain circumstances, an 

employee’s “personnel file: showing, for example, where he was born, the 

names of his parents, where he has lived from time to time, his high school or 

other school records, results of examinations, [and] evaluations of his work 

performance.” Rose, 425 U.S. at 377. Simply put, Exemption 6 protects 

employee files which are “typically maintained in the human resources office —

otherwise known . . . as the ‘personnel department.’” Milner, 562 U.S. at 570.

We conclude that records documenting the history or performance of a 

particular employee fall within the exemption for personnel files. See RSA 91-

A:5, IV; Rose, 425 U.S. at 377. Such records pertain to an employee’s work 

performance and are therefore typically maintained by the personnel 

department. See Milner, 562 U.S. at 570; Rose, 425 U.S. at 377. Records 

relating to internal policies pertaining to an agency’s operations and employee 

relations, on the other hand, would not be maintained in an employee’s 

personnel file. Thus, narrowly interpreting the exemption for “internal 

personnel practices” gives full effect to both exemptions that the legislature 

chose to enact. See Shapiro v. U.S. Dept. of Justice, 153 F. Supp. 3d 253, 280 

(D.D.C. 2016) (commenting that “Exemption 6 . . . would have little purpose if 

agencies could simply invoke Exemption 2 to protect any records that are used 

only for ‘personnel’-related purposes”).

Applying this interpretation to the arbitration decision at issue here, we 

conclude that the decision does not fall within the “internal personnel 

practices” exemption. The decision does not relate to the personnel rules or 

practices of the City of Portsmouth. See Rose, 425 U.S. at 363 (listing use of 

parking facilities, regulation of lunch hours, and statements of policy regarding 

sick leave as examples of internal personnel practices); Shapiro, 153 F. Supp. 

3d at 281 (holding that Federal Bureau of Investigation FOIA request 

evaluation forms did not come within Exemption 2 because, in part, they did 

not “relate solely to trivial or minor matters, akin to the use of parking facilities 

or lunch hours”); cf. Rojas v. F.A.A., 941 F.3d 392, 402 (9th Cir. 2019) (holding 

that “rules and practices for scoring tests relating to the selection of employees”
13

fell within Exemption 2). Rather, the arbitration and the consequent decision 

are products of the application of those rules and practices and, because the 

decision relates to the conduct of a specific employee, it would be the type of 

information preserved in an employee’s personnel file. See Rose, 425 U.S. at 

363; see also Vaughn v. Rosen, 523 F.2d 1136, 1139, 1143 (D.C. Cir. 1975) 

(concluding that reports evaluating how federal agencies’ managers and 

supervisors carry out their personnel management responsibilities were not 

subject to Exemption 2 because, in part, they “deal with the compliance of 

federal agencies with policies”).

Given that the trial court applied the “internal personnel practices” 

exemption as interpreted in Fenniman, it had no need to determine whether 

the decision was exempt from disclosure because it is a “personnel . . . file[ ].”

RSA 91-A:5, IV. Accordingly, we remand this issue to the trial court for its 

consideration, in the first instance, as to whether the arbitration decision

arising from the grievance provision of the collective bargaining agreement is 

exempt from disclosure pursuant to the two-part analysis for personnel files. 

To that end, the trial court must determine: “(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.” Reid, 169 

N.H. at 527. We provided extensive guidance in Reid as to that analysis, and 

need not elaborate further on it here. See id. at 527-33.

D. Attorney’s Fees

Finally, Seacoast has renewed the request it made to the trial court for 

attorney’s fees. To award attorney’s fees for a violation of the Right-to-Know 

Law, “the trial court must find that the petitioner’s lawsuit was necessary to 

make the requested information available and that the [City] knew or should 

have known that its conduct violated the statute.” Goode, 148 N.H. at 558

(quotation omitted). The City argues that, although it may agree with Seacoast 

that the arbitration award should be disclosed, the Union had a colorable 

argument that releasing the award would violate RSA 91-A:5, IV. We agree 

with the City. As the City points out, the trial court found the Union’s 

argument more than colorable. In light of Fenniman, we can hardly conclude

that the City “should have known” that refusing to disclose the arbitration 

award violated the Right-to-Know Law. Therefore, Seacoast’s request for 

attorney’s fees is denied.

IV. Conclusion

For the foregoing reasons, we vacate the trial court’s finding that the 

arbitration award is exempt from disclosure under the “internal personnel 

practices” exemption and remand to the trial court for further proceedings
14

consistent with this opinion. We also deny Seacoast’s request for attorney’s 

fees.

Vacated and remanded.

HICKS and BASSETT, JJ., concurred; HANTZ MARCONI, J., concurred 

in part and dissented in part.

HANTZ MARCONI, J., concurring in part and dissenting in part. I agree 

with my colleagues that the arbitration decision in this case is not a record 

pertaining to “internal personnel practices,” and, therefore, does not fall under 

the “internal personnel practices” exemption to the Right-to-Know Law. See

RSA 91-A:5, IV (2013). I also agree with my colleagues that this case should be 

remanded so that the trial court may consider whether, or to what extent, the 

arbitration decision at issue is exempt from disclosure under the exemption for 

personnel files. See id. I write separately because I believe that to reach this 

result, it is unnecessary to consider whether to overrule Union Leader Corp. v. 

Fenniman, 136 N.H. 624 (1993). I believe that, as a matter of law, the 

arbitration decision at issue does not fall within the “internal personnel 

practices” exemption to the Right-to-Know Law as interpreted in Fenniman. 

Thus, I concur in the result my colleagues reach, but write separately because I 

disagree with their reasoning. To the extent that my colleagues have overruled 

Fenniman, I dissent for the reasons set forth in my dissent in Union Leader 

Corp. v. Town of Salem, 173 N.H. ___, ___ (decided May 29, 2020) (Hantz 

Marconi, J., dissenting) (slip op. at 11-16). 

Fenniman concerned a petition by Union Leader Corporation for access 

to documents compiled during an internal investigation of a police lieutenant 

accused of making harassing phone calls. Fenniman, 136 N.H. at 625. The 

police department released information including the lieutenant’s name and 

the results of the investigation, but withheld “memoranda and other records 

compiled during the investigation.” Id. at 625-26. We held that the withheld 

records pertained to “internal personnel practices” because “they document 

procedures leading up to internal personnel discipline, a quintessential 

example of an internal personnel practice.” Id. at 626 (quotation omitted). We 

also decided that the balancing test we had applied “to judge whether the 

benefits of nondisclosure outweigh the benefits of disclosure” was 

“inappropriate where, as here, the legislature has plainly made its own 

determination that certain documents are categorically exempt” from 

disclosure under the Right-to-Know Law. Id. at 627. 

In Fenniman, we noted that, at the same time that the legislature was 

“overhauling RSA chapter 91-A into its modern form,” it was also “considering 

passage of what is now RSA 516:36, II,” which provides that records pertaining 

to internal investigations of “any officer, employee, or agent” of a state or local 

law enforcement agency are inadmissible in any civil action “other than in a 

disciplinary action between the agency” and the officer, employee, or agent. Id. 
15

at 626; see RSA 516:36, II (2007). We also observed that when considering 

passage of what is now RSA 516:36, II, the legislature had apparently assumed 

“that RSA chapter 91-A exempted police internal investigatory files from public 

disclosure.” Fenniman, 136 N.H. at 627. 

We next addressed the interplay between RSA 516:36, II and the 

exemption for “internal personnel practices” under the Right-to-Know Law in 

Pivero v. Largy, 143 N.H. 187 (1998). In that case, a police officer sought a 

copy of an internal investigative file that related to him. Pivero, 143 N.H. at 

188. To decide the case, we considered RSA 516:36, II and Fenniman, in 

addition to other statutes not relevant to the instant matter. Id. at 189-92. 

We explained that “[u]ntil an internal investigation produces information that 

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

internal investigation files remain confidential and separate from personnel 

files.” Id. at 191 (citations omitted). We further explained that “these policy 

considerations include instilling confidence in the public to report, without fear 

of reprisal, incidents of police misconduct to internal affairs” as well as the 

need not to “seriously hinder an ongoing investigation or future law 

enforcement efforts.” Id. 

Fenniman focused upon exempting from disclosure records documenting 

“the procedures leading up to internal personnel discipline.” Fenniman, 136 

N.H. at 626. That remained our focus in Hounsell v. North Conway Water 

Precinct, 154 N.H. 1 (2006). At issue in that case was a report prepared by 

individuals who had been retained by counsel for the North Conway Water 

Precinct (Precinct) to investigate an employee’s complaint of co-worker 

harassment. Hounsell, 154 N.H. at 2. The report summarized the 

investigation and made findings and recommendations. Id. We upheld the 

trial court’s determination that the report was exempt from disclosure under 

the Right-to-Know Law because, similar to the documents in Fenniman, the 

report concerned an investigation that “could have resulted in disciplinary 

action.” Id. at 4. Although we recognized that the report was not part of an 

internal police investigation, such as the report in Fenniman, we explained that 

its disclosure would implicate “policy concerns similar to those underlying the 

disclosure of an internal police investigatory file.” Id. at 5 (quotation omitted). 

As the Precinct in Hounsell had argued, “the disclosure of records underlying, 

or arising from, internal personnel investigations would deter the reporting of 

misconduct by public employees, or participation in such investigations for fear 

of public embarrassment, humiliation, or even retaliation.” Id. 

In Clay, we expanded Fenniman to address records documenting 

procedures leading to an employer’s hiring decision, but did not disturb 

Fenniman’s central holding or the policy concerns underlying it. Clay v. City of 

Dover, 169 N.H. 681 (2017). Although we had previously criticized Fenniman, 

see Reid v. N.H. Attorney General, 169 N.H. 509, 519-22 (2016), in Clay we 

confirmed that it remained good law. Clay, 169 N.H. at 687. 
16

The arbitration decision at issue in the instant matter does not meet the 

Fenniman definition of records pertaining to “internal personnel practices.” 

Unlike the records in Fenniman and Hounsell, the arbitration decision was 

rendered after internal discipline had already been meted out. The police 

officer in this case was terminated from employment in 2015; the arbitration 

decision was not issued until 2018. Accordingly, the arbitration decision, 

unlike the records in Fenniman and Hounsell, does not document procedures

“leading up to internal personnel discipline,” Fenniman, 136 N.H. at 626, but 

rather constitutes the review of the discipline after it was imposed. 

Moreover, disclosure of the arbitration decision in this case does not 

implicate the same policy concerns underlying our decision in Fenniman. See

Pivero, 143 N.H. at 191; Hounsell, 154 N.H. at 5. Rather, disclosure of the 

arbitration decision implicates different policy considerations because it is part 

of an employee grievance proceeding, considerations that may be more 

appropriately addressed under the exemption for personnel files.

Because I believe that the arbitration decision does not fall within the 

“internal personnel practices” exemption, as construed in Fenniman and its 

progeny, I see no reason to consider, in this case, whether to overrule that line 

of cases. Nor do I believe, for the reasons set forth in my dissent in Union 

Leader Corp. v. Town of Salem, that our established stare decisis factors 

compel overruling Fenniman and its progeny. See Union Leader Corp., 173 

N.H. at ____ (Hantz Marconi, J., dissenting) (slip op. at 11-16). 

Although I would not overrule Fenniman in this case, to the extent that 

the Fenniman definition of “internal personnel practices” has been overruled 

and a new, narrower definition has been adopted, I agree with my colleagues 

that the arbitration decision at issue fails to meet that new definition as a 

matter of law. Like my colleagues, I would remand for the trial court to 

consider, in the first instance, whether the arbitration decision is exempt from 

disclosure pursuant to the two-part analysis for personnel files. See Reid, 169 

N.H. at 527-33.