NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well 

as formal revision before publication in the New Hampshire Reports. Readers are 

requested to notify the Reporter, Supreme Court of New Hampshire, One Charles 

Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that 

corrections may be made before the opinion goes to press. Errors may be 

reported by e-mail at the following address: reporter@courts.state.nh.us. 

Opinions are available on the Internet by 9:00 a.m. on the morning of their 

release. The direct address of the court’s home page is: 

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

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham 

No. 2019-0206

UNION LEADER CORPORATION & a.

v.

TOWN OF SALEM

Argued: November 20, 2019

Opinion Issued: May 29, 2020

Malloy & Sullivan, Lawyers Professional Corporation, of Hingham, 

Massachusetts (Gregory V. Sullivan on the brief and orally), and Douglas, 

Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief), for 

plaintiff Union Leader Corporation.

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

Bissonnette and Henry R. Klementowicz on the brief, and Mr. Bissonnette

orally), and Richard J. Lehmann, of Manchester, on the brief, for plaintiff 

American Civil Liberties Union of New Hampshire.

Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Nathan C. 

Midolo on the brief, and Mr. Mayer orally), for the defendant.
2

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. 

New Hampshire Municipal Association, of Concord (Cordell A. Johnston, 

Stephen C. Buckley, and Natch Greyes on the brief), as amicus curiae.

HICKS, J. The plaintiffs, Union Leader Corporation and American Civil 

Liberties Union of New Hampshire (ACLU-NH), appeal an order of the Superior 

Court (Schulman, J.) denying their petition for the release of “complete, 

unredacted copies” of: (1) “the 120-page audit report of the Salem Police 

Department . . . dated October 12, 2018 focusing on internal affairs complaint 

investigations”; (2) “the 15-page addendum focused on the [Salem Police] 

Department’s culture”; and (3) “the 42-page audit report of the [Salem Police] 

Department dated September 19, 2018 focusing on time and attendance 

practices.” Collectively, we refer to these documents as the “Audit Report.” 

The trial court upheld many of the redactions made to the Audit Report by the 

defendant, the Town of Salem (Town), concluding that they were required by 

the “internal personnel practices” exemption to the Right-to-Know Law, RSA 

chapter 91-A, as interpreted in Union Leader Corp. v. Fenniman, 136 N.H. 624 

(1993), and its progeny. See RSA 91-A:5, IV (2013). 

In a separate opinion issued today, we overruled Fenniman to the extent 

that it broadly interpreted the “internal personnel practices” exemption and 

overruled our prior decisions to the extent that they relied on that broad 

interpretation. See Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 

___, ___ (decided May 29, 2020) (slip op. at 9). We now overrule Fenniman to 

the extent that it decided that records related to “internal personnel practices” 

are categorically exempt from disclosure under the Right-to-Know Law instead 

of being subject to a balancing test to determine whether such materials are 

exempt from disclosure. We overrule our prior decisions to the extent that they 

applied the per se rule established in Fenniman. We vacate the trial court’s 

order and remand for further proceedings consistent with this opinion.

I. Facts

The trial court recited the following relevant facts. The Audit Report was 

prepared by a nationally-recognized consulting firm, which had been retained 

by the Town’s outside counsel at the Town’s request. The Audit Report is 

highly critical of the Town’s police department.

The Town publicly released a copy of the Audit Report, but redacted 

certain information pursuant to two exemptions to the New Hampshire Right-
3

to-Know Law: (1) the “internal personnel practices” exemption; and (2) the 

exemption for “personnel . . . and other files.” RSA 91-A:5, IV. The plaintiffs 

brought the instant action to obtain an unredacted copy of the Audit Report.

On appeal, they challenge the trial court’s decision only to the extent that it 

sustained the redactions made under the “internal personnel practices” 

exemption. They do not challenge the trial court’s decision to sustain 

redactions under the “personnel . . . and other files” exemption. 

The trial court reviewed the unredacted Audit Report in camera and 

compared it, line by line, to the redacted version released to the public. 

Although critical of our decision in Fenniman, the trial court properly 

considered itself bound by it. Applying Fenniman, the trial court upheld the 

following redactions pursuant to the “internal personnel practices” exemption: 

(1) information to protect the identity of participants in particular internal 

affairs investigations (names of the accused officer(s) and/or the investigator(s), 

dates of investigations, specific locations, other facts that could be used to 

identify a participant officer, investigator, or witness, and dates of alleged 

misconduct); (2) information relating to a particular employee’s scheduling of 

outside details and time off; (3) the manner by which an employee arranged for 

vacation leave and other time off from work; and (4) the names of employees 

who were paid for outside details during hours for which they were also 

receiving regular pay. 

The trial court did not apply a balancing test to determine whether the 

redacted material should be disclosed, but rather, based upon Fenniman, ruled

that the redacted material was categorically exempt from disclosure. 

Nonetheless, the court observed that “[a] balance of the public interest in 

disclosure against the legitimate privacy interests of the individual officers and 

higher-ups strongly favors disclosure of all but small and isolated portions of 

the Internal Affairs Practices section of the audit report.” 

The trial court ordered the Town to provide the plaintiffs with a copy of 

the Audit Report containing only the redactions it upheld. The Town complied 

with the trial court’s order on April 26, 2019, shortly after the instant appeal 

was filed.

II. Discussion

On appeal, the plaintiffs urge us to overrule Fenniman. Alternatively, 

they argue that the Audit Report, in its entirety, does not relate to “internal 

personnel practices” even under Fenniman, and that Part I, Article 8 of the 

State Constitution requires that we employ a balancing test, rather than a per

se rule, to determine whether records relating to “internal personnel practices” 

are exempt from disclosure. Finally, the plaintiffs contend that applying a 

balancing test to the redacted information favors the information’s disclosure. 

Because we decide this case on statutory grounds, we do not reach the 
4

plaintiffs’ constitutional argument. See Chatman v. Strafford County, 163 N.H. 

320, 322 (2012) (explaining that “we decide cases on constitutional grounds 

only when necessary”).1 

A. Standard of Review

When interpreting the Right-to-Know Law, we apply our ordinary rules of 

statutory interpretation. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 

475 (1996). Accordingly, we look to the plain meaning of the words used. Id. 

“To advance the purposes of the Right-to-Know Law, we construe provisions 

favoring disclosure broadly and exemptions narrowly.” Id. (quotation omitted).

 

B. Fenniman and Stare Decisis

At issue is the interpretation of RSA 91-A:5, IV, which exempts from 

disclosure under the Right-to-Know Law

[r]ecords pertaining to internal personnel practices; confidential, 

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

and other examination data used to administer a licensing 

examination, examination for employment, or academic 

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

videotape sale or rental, and other files whose disclosure would 

constitute invasion of privacy. 

RSA 91-A:5, IV (emphasis added). Fenniman was the first case to interpret the 

exemption for “internal personnel practices.” In that case, the plaintiff sought 

“memoranda and other records compiled” during a police department’s internal 

investigation of a department lieutenant who had been accused of making 

harassing phone calls. Fenniman, 136 N.H. at 625, 626. We broadly 

construed the “internal personnel practices” exemption to apply to those 

records because “they document[ed] procedures leading up to internal 

personnel discipline, a quintessential example of an internal personnel 

practice.” Id. at 626 (quotation omitted). In addition, we adopted a per se rule 

exempting such materials from disclosure. Id. at 627. We explained, 

“Although we have often applied a balancing test to judge whether the benefits 

of nondisclosure outweigh the benefits of disclosure, such an analysis is 

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

determination that certain documents are categorically exempt.” Id. (citations 

omitted). 

 

1 To the extent that the plaintiffs argue that the Audit Report, as a whole, does not meet the broad 

definition of “internal personnel practices” that we adopted in Fenniman, we conclude that that 

issue is not properly before us. The trial court did not rule that the Audit Report, in its entirety, 

was exempt from disclosure under the “internal personnel practices” exemption. Rather, because 

the Town had released a redacted version of the report, the trial court looked at each redaction in 

light of what the Town had already disclosed. 
5

In Reid v. New Hampshire Attorney General, 169 N.H. 509 (2016), we 

criticized Fenniman, but did not decide whether to overrule it because we were 

not asked to do so. See Reid, 169 N.H. at 519-22. In Reid, we observed that, 

in Fenniman, we had failed to interpret the “internal personnel practices” 

exemption narrowly and had adopted a per se rule of exemption, which 

departed from our customary Right-to-Know Law jurisprudence under which a 

balancing test applies. Id. at 519-20; see Lambert v. Belknap County 

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

determine whether public records are exempt from disclosure because their 

release would constitute an invasion of privacy). We also observed that, in 

Fenniman, we “did not interpret the portion of RSA 91-A:5, IV at issue in the 

context of the remainder of the statutory language—in particular, the language 

exempting ‘personnel . . . and other files.’” Reid, 169 N.H. at 520. We further 

observed that, in Fenniman, we had failed to consult decisions from other 

jurisdictions, particularly federal courts interpreting “Exemption 2” under the 

federal Freedom of Information Act (FOIA). Id. at 520-21; see 5 U.S.C. § 

552(b)(2) (2018) (exempting from disclosure under FOIA information “related 

solely to the internal personnel rules and practices of an agency”). 

Nonetheless, we declined to reconsider Fenniman sua sponte. Reid, 169 N.H. 

at 522. 

Seacoast Newspapers represented our first opportunity to consider 

whether to overrule Fenniman. See Seacoast Newspapers, 173 N.H. at ___ (slip 

op. at 5). There, after applying our established stare decisis factors, we 

overruled Fenniman to the extent that it had too broadly defined what 

constitutes records related to “internal personnel practices.” Id. at ___ (slip op. 

at 9). We concluded that the “internal personnel practices” exemption applies 

narrowly to records relating to the “internal rules and practices governing an 

agency’s operations and employee relations,” and does not apply to 

“information concerning the history or performance of a particular employee.” 

Id. at ____ (slip op. at 11). 

Because we concluded in Seacoast Newspapers that the arbitration 

decision at issue did not meet the narrow definition of records relating to 

“internal personnel practices” adopted in that case, we did not “decide . . . 

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.” Seacoast 

Newspapers, 173 N.H. at ___ (slip op. at 10). We face that issue here.

 

“We do not lightly overrule a case that has been precedent for over

twenty-five years.” Alonzi v. Northeast Generation Servs. Co., 156 N.H. 656, 

659 (2008). “The doctrine of stare decisis demands respect in a society 

governed by the rule of law, for when governing standards are open to revision 

in every case, deciding cases becomes a mere exercise of judicial will with 
6

arbitrary and unpredictable results.” Id. at 659-60 (quotation omitted). “When 

asked to overrule a prior holding, we do not look at the issues de novo; rather, 

we review whether the ruling has come to be seen so clearly as error that its 

enforcement was for that very reason doomed.” Id. at 660 (quotation omitted). 

Several factors inform our judgment, including:

(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. 

Id. (quotation omitted). No single factor is dispositive “because the doctrine of 

stare decisis is not one to be either rigidly applied or blindly followed.” Ford v. 

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

 

The first stare decisis factor “examines whether a rule has become 

difficult or impractical for trial courts to apply.” State v. Cora, 170 N.H 186, 

192 (2017) (quotation omitted). “The first factor weighs against overruling 

when a rule is easy to apply and understand.” Id. (quotation omitted). The per

se rule, exempting from disclosure all material that falls within the “internal 

personnel practices” exemption, is simple to apply and understand. Thus, the 

first stare decisis factor weighs against overruling Fenniman’s adoption of a per

se rule. See State v. Balch, 167 N.H. 329, 335 (2015) (deciding that a rule that 

“is a simple rule to apply and understand . . . has retained its practicality and 

simplicity”). 

For the second factor “we inquire into ‘the cost of a rule’s repudiation as 

it would fall on those who have relied reasonably on the rule’s continued 

application.’” State v. Duran, 158 N.H. 146, 157 (2008) (quoting Planned 

Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 (1992)). Reliance 

interests are most often implicated when a rule operates “‘within the 

commercial law context, where advance planning of great precision is most 

obviously a necessity.’” Id. (quoting Casey, 505 U.S. at 856). No such interests 

are implicated by overruling the Fenniman per se rule. See Seacoast 

Newspapers, 173 N.H. at ___ (slip op. at 6). The Town’s assertions to the 

contrary do not persuade us that the Fenniman per se rule “is subject to a kind 

of reliance that would lend a special hardship to the consequence of overruling” 

it. Alonzi, 156 N.H. at 660 (quotation omitted); see State v. Quintero, 162 N.H. 

526, 538 (2011). 

We consider the third and fourth factors together. “The third factor 

concerns whether the law has developed in such a manner as to undercut the 
7

prior rule.” Balch, 167 N.H. at 335; see State v. Matthews, 157 N.H. 415, 419-

20 (2008) (overruling prior holdings due to evolution of our case law). The 

fourth factor concerns “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) (brackets omitted). 

After considering the third and fourth factors, “[w]e believe there are 

principles of law the [Fenniman] court did not consider.” Duran, 158 N.H. at 

154; see Reid, 169 N.H. at 520-21; Seacoast Newspapers, 173 N.H. at ___ (slip 

op. at 7). We conclude that “departure from [Fenniman] is justified because 

the [court] failed to give full consideration” to: (1) our prior case law 

interpreting RSA 91-A:5, IV and pertinent legislative history; and (2) whether 

applying a per se rule to “internal personnel practices,” but not to other 

categories of information identified in RSA 91-A:5, IV, would nullify those other 

categories. Duran, 158 N.H. at 154; see Reid, 169 N.H. at 520-21; Seacoast 

Newspapers, 173 N.H. at ___ (slip op. at 6-8). “[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 (quotation omitted).

First, Fenniman failed to give full consideration to our prior cases 

interpreting RSA 91-A:5, IV and to relevant legislative history. Before 

Fenniman was decided, we had consistently applied a balancing test to the 

disclosure of records pertaining to “confidential” and “financial information.” 

See Chambers v. Gregg, 135 N.H. 478, 481 (1992); Menge v. Manchester, 113 

N.H. 533, 537-38 (1973); Mans v. Lebanon School Bd., 112 N.H. 160, 162-64

(1972). 

We first adopted the balancing test in Mans. See Mans, 112 N.H. at 162. 

In that case, the issue was whether a Lebanon resident was entitled to “access 

to the name and salary of each schoolteacher in the Lebanon School District.” 

Id. at 161. At the time, RSA 91-A:5, IV exempted from disclosure “[r]ecords 

pertaining to internal personnel practices, confidential, commercial, or 

financial information, personnel, medical, welfare, and other files whose 

disclosure would constitute invasion of privacy.” Id. (quotation omitted). We 

explained that RSA 91-A:5, IV “means that financial information and personnel 

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

disclosed.” Id. at 162. In other words, we interpreted the phrase “whose 

disclosure would constitute invasion of privacy,” as modifying all of the kinds of 

information identified in RSA 91-A:5, IV, including that “pertaining to internal 

personnel practices.” Id. We concluded that the phrase “whose disclosure 

would constitute invasion of privacy” and the need to interpret exemptions to 

the Right-to-Know Law narrowly so as to serve the law’s purposes and 

objectives, required balancing “the benefits of disclosure to the public . . . 
8

against the benefits of nondisclosure to the administration of the school system 

and to the teachers.” Id.; see Perras v. Clements, 127 N.H. 603, 605 (1986) 

(explaining that in Mans we established “a balancing test in ‘right-to-know’ 

cases to determine whether the benefits of disclosure outweigh the benefits of 

nondisclosure”); Menge, 113 N.H. at 534, 537-38 (applying the balancing test 

we adopted in Mans to “a computerized tape of certain field record cards 

compiled by the city of Manchester for use in arriving at its real estate tax 

assessments”). 

Nevertheless, in Fenniman, we eschewed the balancing test we had 

applied to the disclosure of “confidential” and “financial” information in favor of 

a per se rule of exemption for records pertaining to “internal personnel 

practices” because, we said, “the legislature [had] plainly made its own 

determination that [internal personnel practices] documents are categorically 

exempt.” Fenniman, 136 N.H. at 627. In fact, there was nothing in the plain 

language of RSA 91-A:5, IV demonstrating legislative intent to treat records 

pertaining to “internal personnel practices” differently from “confidential, 

commercial, or financial information.” RSA 91-A:5, IV (Supp. 1992).

The Town bases its argument that Fenniman is consistent with the plain 

language of RSA 91-A:5, IV upon the fact that semicolons separate the types of 

information listed therein. The Town contends that the semicolons indicate

that the phrase “whose disclosure would constitute invasion of privacy” applies 

only to the last clause of the statute (“personnel . . . and other files”). See

Teeboom v. City of Nashua, 172 N.H. 301, 316 (2019) (explaining that, under 

ordinary grammar rules, a modifying clause should be placed next to the 

clause it modifies); In re Richard M., 127 N.H. 12, 17 (1985) (observing that 

“the legislature is not compelled to follow technical rules of grammar and 

composition” (quotation omitted)).

 

However, our case law has consistently applied the balancing test to the 

disclosure of “confidential, commercial, or financial information,” even after 

semicolons were added in 1986. See Laws 1986, 83:6; see also Prof’l 

Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H. 699, 707 (2010); Goode v. N.H. 

Legislative Budget Assistant, 148 N.H. 551, 555-56 (2002); Union Leader Corp. 

v. N.H. Housing Fin. Auth., 142 N.H. 540, 552, 555-59 (1997); Chambers, 135 

N.H. at 481; Brent v. Paquette, 132 N.H. 415, 426-28 (1989). Indeed, we have 

construed the fact that “confidential, commercial, or financial information” is 

separate from the other categories of information enumerated in RSA 91-A:5, 

IV as meaning “not that the information is per se exempt, but rather that it is 

sufficiently private that it must be balanced against the public’s interest in 

disclosure.” N.H. Housing Fin. Auth., 142 N.H. at 553. Further, the history of 

the 1986 amendment to RSA 91-A:5, IV does not demonstrate that the 

legislature intended the semicolons to limit the balancing test established in 

Mans to the last clause of the statute (“personnel . . . and other files”). 
9

To the extent that the Town argues that we apply the balancing test to 

the disclosure of confidential information only to determine whether the 

material is “confidential,” the Town is mistaken. See Chambers, 135 N.H. at 

481. We do not have a single test to determine whether material is 

“confidential,” although we have found “instructive the standard test employed 

by the federal courts.” N.H. Housing Fin. Auth., 142 N.H. at 554. To establish 

that information is sufficiently “confidential” to justify nondisclosure, the party 

resisting disclosure must prove that disclosure “is likely: (1) to impair the 

[government]’s ability to obtain necessary information in the future; or (2) to 

cause substantial harm to the competitive position of the person from whom 

the information was obtained.” Id. at 554 (quotation omitted). 

The test described above is not the balancing test that we use to 

determine whether the disclosure of “confidential, commercial, or financial”

information results in an invasion of privacy. That determination involves a 

three-step analysis. Prof’l Firefighters of N.H., 159 N.H. at 707. First, we 

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

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

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

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

Id. If no privacy interest is at stake, then the Right-to-Know Law mandates 

disclosure. Id. Further, “whether information is exempt from disclosure 

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

subjective expectations.” Id. (quotation and brackets omitted). Thus, 

determining whether the exemption for “confidential, commercial, or financial 

information” applies “require[s] analysis of both whether the information 

sought is ‘confidential, commercial, or financial information,’ and whether 

disclosure would constitute an invasion of privacy.” N.H. Housing Fin. Auth., 

142 N.H. at 552. 

Fenniman simply cannot be reconciled with our case law construing the 

exemption for “confidential, commercial, or financial information.” Nor can it 

be reconciled with the history of the 1986 amendment to RSA 91-A:5, IV and 

the plain meaning of the statutory language, neither of which provides a basis 

to apply a balancing test to the disclosure of “confidential, commercial, or 

financial information” but not to apply the same test to the disclosure of 

records related to “internal personnel practices.”

Second, in Fenniman, we failed to consider whether adopting a per se

rule of exemption for “internal personnel practices,” while applying a balancing 

test to the exemption for “personnel . . . and other files,” would render the 

latter a nullity. We conclude that it does. As ACLU-NH observes, “This is 

because . . . a government agency could skirt the public interest balancing 

analysis required for ‘personnel file’ information by simply asserting the 

categorical ‘internal personnel practices’ exemption, thus leaving the ‘personnel 

file’ exemption without effect.” Cf. Shapiro v. U.S. Dept. of Justice, 153 F. 
10

Supp. 3d 253, 280 (D.D.C. 2016) (noting that Exemption 6 under FOIA for 

“personnel and medical files and similar files the disclosure of which would 

constitute a clearly unwarranted invasion of personal [privacy] . . . would have 

little purpose if agencies could simply invoke Exemption 2,” which shields, 

inter alia, records relating solely to the internal personnel rules and practices 

of an agency). 

Because the Fenniman per se rule is inconsistent with our historical and 

current interpretation of the exemption under RSA 91-A:5, IV for “confidential, 

commercial, or financial information,” we are persuaded that it has become no 

more than a remnant of abandoned doctrine. See Matthews, 157 N.H. at 420. 

We, therefore, overrule Fenniman to the extent that it adopted a per se rule of 

exemption for records relating to “internal personnel practices.” 

In arguing for a contrary result, the Town and the intervenor, New 

England Police Benevolent Association, Local 220 (the Union), raise arguments 

that were raised and rejected in Seacoast Newspapers. See Seacoast 

Newspapers, 173 N.H. at ___ (slip op. at 9). For instance, the Town and Union 

argue that we should adhere to the per se rule we adopted in Fenniman

because the legislature has not “overruled” Fenniman by legislative enactment. 

See Appeal of Phillips, 165 N.H. 226, 232 (2013) (assuming that our prior 

holding “conforms to legislative intent” when it had “been over four years since 

we issued our [prior] decision and the legislature [had] not seen fit to amend 

the statute”); cf. New Hampshire Retail Grocers Ass’n v. State Tax Comm’n, 113 

N.H. 511, 514 (1973) (noting that “[i]t is a well-established principle of 

statutory construction that a longstanding practical and plausible 

interpretation given a statute of doubtful meaning by those responsible for its 

implementation without any interference by the legislature is evidence that 

such a construction conforms to legislative intent”). However, such canons of 

statutory construction are not controlling. See Chagnon v. Union Leader 

Corp., 104 N.H. 472, 474 (1963), superseded on other grounds by statute as 

stated in Hanchett v. Brezner Tanning Co., 107 N.H. 236 (1966) (explaining 

that legislative “intent, rather than any arbitrary canons of statutory 

construction, is controlling”). Moreover, as we explained in Seacoast 

Newspapers, “We are unwilling to mechanically apply the principles of stare 

decisis to allow a decision that was wrong when it was decided to perpetuate as 

a rule of law.” Seacoast Newspapers, 173 N.H. at ___ (slip op. at 9) (quotation 

omitted). “Neither will we always place on the shoulders of the legislature the 

burden to correct our own error.” Id. at ___ (slip op. at 9) (quotation omitted). 

Similarly, the Union argues in this case, as it argued in Seacoast 

Newspapers, that we should decline to overrule Fenniman because of legislative 

activity during the last legislative session. Id. at ____ (slip op. at 9). As we 

explained in Seacoast Newspapers, “we will not be deterred . . . from correcting 

a wrong of our own creation because the legislature considered, but did not 
11

enact, a bill relating to the same subject matter in a previous legislative 

session.” Id. at ___ (slip op. at 9). 

Thus, for all of the above reasons, we now overrule Fenniman to the 

extent that it adopted a per se rule of exemption for records relating to “internal 

personnel practices” and overrule its progeny to the extent that they applied 

that per se rule of exemption. In the future, the balancing test we have used 

for the other categories of records listed in RSA 91-A:5, IV shall apply to 

records relating to “internal personnel practices.” See Prof’l Firefighters of

N.H., 159 N.H. at 707 (setting forth the three-step analysis required to 

determine whether disclosure will result in an invasion of privacy). 

Determining whether the exemption for records relating to “internal personnel 

practices” applies will require analyzing both whether the records relate to such 

practices and whether their disclosure would constitute an invasion of privacy. 

See N.H. Housing Fin. Auth., 142 N.H. at 552.

Not surprisingly, the plaintiffs contend that, when the balancing test is 

applied to the redactions the trial court upheld, it favors disclosure, and the 

Town argues the opposite. However, we agree with the Union that remand is 

required in this case not only for the trial court to apply the balancing test in 

the first instance, but for it also to decide whether information in the 

redactions it upheld satisfies Seacoast Newspapers definition of “internal 

personnel practices.” To the extent that the trial court finds that a redaction 

does not meet that narrow definition, it may, on remand, determine whether 

the redacted information, nonetheless, is exempt from disclosure under the 

exemption for “personnel . . . and other files.” RSA 91-A:5, IV. This is so 

because, as the Union correctly observes, “it is not evident that the [trial] court 

considered whether any of the disputed materials were exempt ‘personnel . . . 

files.’”

 Vacated and remanded.

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

dissented. 

HANTZ MARCONI, J., dissenting. In another opinion issued today, the 

court overruled our decision in Union Leader Corp v. Fenniman, 136 N.H. 624 

(1993), to the extent that it too broadly interpreted the “internal personnel 

practices” exemption to the Right-to-Know Law. See Seacoast Newspapers, Inc. 

v. City of Portsmouth, 173 N.H. ___, ___ (decided May 29, 2020) (slip op. at 11); 

see also RSA 91-A:5, IV (2013). I concurred in the result in that case because I 

agreed with my colleagues that the arbitration decision at issue does not fall 

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

See Seacoast Newspapers, 173 N.H. at ___ (Hantz Marconi, J., concurring in 

part and dissenting in part) (slip op. at 16). I saw no need to consider whether 

to overrule Fenniman in that case because I believed that the arbitration 
12

decision fails to satisfy the Fenniman definition of records pertaining to 

“internal personnel practices” as a matter of law. Id. (slip op. at 16). 

In the instant case, my colleagues overrule Fenniman to the extent that it 

decided that records pertaining to “internal personnel practices” are 

categorically exempt from disclosure under the Right-to-Know Law. For the 

reasons that follow, I respectfully dissent from my colleagues’ decision to 

overrule Fenniman in any respect. 

“The doctrine of stare decisis demands respect in a society governed by 

the rule of law, for when governing legal standards are open to revision in every 

case, deciding cases becomes a mere exercise of judicial will with arbitrary and 

unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 

N.H. 502, 504 (2003) (quotations omitted). “[W]hen 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. (quoting Planned 

Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854 (1992)). Several 

factors inform our judgment, including: (1) “whether the rule has proven to be 

intolerable simply in defying practical workability”; (2) “whether the rule is 

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

consequences 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.” Id. at 505 (quotations omitted).

Unlike my colleagues, I believe that our established stare decisis factors 

compel retaining Fenniman. As the majority concedes, the first factor weighs 

in favor of retaining Fenniman because the Fenniman decision is easy to apply. 

See State v. Cora, 170 N.H. 186, 192 (2017). As the Town asserts, Fenniman 

“has been applied on numerous occasions in a rational and meaningful way,” 

and, thus, “there is no basis for arguing” that Fenniman “defies practical 

workability.” 

I also believe that the second factor weighs in favor of retaining 

Fenniman. The second factor concerns “the cost of a rule’s repudiation as it 

would fall on those who have relied reasonably on the rule’s continued 

application.” Casey, 505 U.S. at 855. As the Town correctly observes, 

“Thousands of employees at every level of government, retired and currently 

employed, have come to rely on Fenniman, which has been the law for 26 

years.” Moreover, governmental administrators also have come to understand 

that their efforts to investigate, evaluate, and improve operations are protected 

by Fenniman. See id. at 856 (explaining that “while the effect of reliance on [a 

prior Supreme Court decision] cannot be exactly measured, neither can the 
13

certain cost of overruling [that decision] for people who have ordered their 

thinking and living around that case be dismissed”).

Although the majority cites factors three and four and claims to have 

applied them, its actual analysis reveals that it overrules Fenniman merely 

because it finds the case to have been badly reasoned. See State v Quintero, 

162 N.H. 526, 544 n.1 (2011) (Lynn, J., specially concurring) (describing the 

court’s analysis in State v. Duran, 158 N.H. 146 (2008)). That this is so is 

demonstrated by the following passages, among others, from the decision: 

“[W]e are sometimes able to perceive significant facts or understand principles 

of law that eluded our predecessor and justify departures from existing 

decisions”; “We believe there are principles of law the [Fenniman] court did not 

consider”; “We conclude that departure from [Fenniman] is justified because 

the [court] failed to give full consideration” to our prior case law and to the fact 

that we apply a balancing test to the disclosure of other information covered by 

RSA 91-A:5, IV; “[W]e owe somewhat less deference to a decision that was 

rendered without benefit of a full airing of all the relevant considerations”; and 

“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.” 

(Quotations omitted.). See id. (referring to the same or similar passages in 

Duran). When considering whether to overrule a case, we should not consider 

whether we would have decided it differently de novo. Jacobs, 149 N.H. at 504. 

Yet, that is precisely what my colleagues have done. 

Moreover, in my view, Fenniman was soundly reasoned. 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. 

Fenniman is consistent with the plain meaning of the language in RSA 

91-A:5, IV. When Fenniman was decided, RSA 91-A:5, IV exempted:

Records pertaining to internal personnel practices; confidential, 

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

and other examination data used to administer a licensing 
14

examination, examination for employment, or academic 

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

videotape sale or rental, and other files whose disclosure would 

constitute an invasion of privacy. Without otherwise compromising 

the confidentiality of the files, nothing in this paragraph shall 

prohibit a body or agency from releasing information relative to 

health or safety from investigative files on a limited basis to persons 

whose health or safety may be affected.

RSA 91-A:5, IV (Supp. 1992). 

Pursuant to the plain meaning of the statutory language, the clause 

“whose disclosure would constitute invasion of privacy” modifies only the last 

category of records enumerated in the statute (“personnel, medical, welfare, 

library user, videotape sale or rental, and other files”). See Teeboom v. City of 

Nashua, 172 N.H. 301, 316 (2019) (explaining that, under ordinary grammar 

rules, a modifying clause should be placed next to the clause it modifies); In re 

Richard M., 127 N.H. 12, 17 (1985) (“Although the legislature is not compelled 

to follow technical rules of grammar and composition, a widely accepted 

method of statutory construction is to read and examine the text of the statute 

and draw inferences concerning its meaning from its composition and 

structure.” (quotation omitted)). As the amicus correctly observes: 

This is most apparent with respect to “test questions, scoring 

keys, and other examination data.” It is impossible to imagine how 

disclosure of test questions or scoring keys could constitute 

invasion of privacy, so applying the invasion-of-privacy balancing 

test would render this exemption meaningless—and yet the 

exemption is there. Clearly the reason for exempting these records 

is to prevent someone who expects to be taking an academic, 

licensing, or employment examination from gaining an unfair 

advantage—it has nothing to do with personal privacy.

If the invasion-of-privacy element does not apply to the test 

scores exemption, there is no reason, consistent with the 

construction of the paragraph, to apply it [to] the other categories, 

either. 

Although the majority makes much of the fact that we have applied our 

traditional balancing test to “confidential, commercial, or financial” 

information, I agree with the amicus that doing so makes sense because 

“[p]rivacy and confidentiality, while not exactly the same thing, are certainly 

related.” See Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 

553-54 (1997) (providing that under one test, to establish that “commercial” or 

“financial” information is sufficiently “confidential” to justify nondisclosure, the 

party resisting disclosure must prove that disclosure “is likely: (1) to impair the 
15

[government]’s ability to obtain necessary information in the future; or (2) to 

cause substantial harm to the competitive position of the person from whom 

the information was obtained” (quotation omitted)). Moreover, although the 

Fenniman Court did not consider federal precedent, doing so is not required 

when interpreting our Right-to-Know Law for we are the final arbiter of the 

legislature’s intent. Clay v. City of Dover, 169 N.H. 681, 685 (2017). 

Even if I were to agree with my colleagues that Fenniman is poorly 

reasoned, which I do not, “[p]rincipled application of stare decisis requires a 

court to adhere even to poorly reasoned precedent in the absence of some 

special reason over and above the belief that a prior case was wrongly decided.” 

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

other words, “[r]especting stare decisis means sticking to some wrong 

decisions.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015). “The 

doctrine rests on the idea, as Justice Brandeis famously wrote, that it is 

usually ‘more important that the applicable rule of law be settled than that it 

be settled right.’” Id. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 

406 (1932) (Brandeis, J., dissenting)). “Indeed, stare decisis has consequence 

only to the extent it sustains incorrect decisions; correct judgments have no 

need for that principle to prop them up.” Id. “Accordingly, an argument that 

we got something wrong—even a good argument to that effect—cannot by itself 

justify scrapping settled precedent.” Id. 

“Judges are not at liberty to follow prior decisions that are well-reasoned 

and discard those that are not.” Quintero, 162 N.H. at 539. “According 

substantial weight to the poor reasoning of an opinion undermines stare 

decisis and potentially bestows upon the court expansive authority to overrule 

any prior decision it determines is poorly reasoned.” Id. at 540. “[W]hen 

governing legal standards are open to revision in every case, deciding cases 

becomes a mere exercise of judicial will with arbitrary and unpredictable 

results.” Jacobs, 149 N.H. at 504 (quotation omitted). 

Stare decisis “is most compelling” when statutory interpretation is at 

issue. Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 205 

(1991). This is so because the legislature “may alter what we have done by 

amending the statute.” Patterson v. McLean Credit Union, 491 U.S. 164, 175 

n.1 (1989), superseded by statute on other grounds, as stated in Stender v. 

Lucky Stores, Inc., 780 F. Supp. 1302, 1305-06 (N.D. Cal. 1992); accord

Duran, 158 N.H. at 157 (“[S]tare 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.” (quotations and 

brackets omitted)). Toward that end, I find it persuasive that, although the 

legislature has amended the Right-to-Know Law on many occasions since 

Fenniman was decided, it has not seen fit to overrule Fenniman by legislative 

enactment. See Appeal of Phillips, 165 N.H. 226, 232 (2013) (assuming that 

our prior holding “conforms to legislative intent” when it had “been over four 
16

years since we issued our [prior] decision and the legislature [had] not seen fit 

to amend the statute”). 

For all of the above reasons, therefore, I would not overrule Fenniman.