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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2020-0036

AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE & a.

v.

CITY OF CONCORD

Argued: February 11, 2021

Opinion Issued: December 7, 2021

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 plaintiffs.

City Solicitor’s Office, of Concord (James W. Kennedy, city solicitor, on 

the brief and orally), for the defendant.

BASSETT, J. The plaintiffs, the American Civil Liberties Union of New 

Hampshire (ACLU) and the Concord Monitor, appeal an order of the Superior 

Court (Kissinger, J.) ruling that portions of a contract between an equipment 

vendor and the defendant, the City of Concord, for the purchase of “covert

communications equipment” are exempt from disclosure under the Right-toKnow Law. See RSA ch. 91-A (2013 & Supp. 2020). The plaintiffs argue that 

the City failed to meet its burden of demonstrating that the redacted portions 

of the contract are exempt from disclosure, and that the trial court erred when 
2

it held an ex parte in camera hearing, during which the City presented

evidence supporting exemption. We affirm in part, reverse in part, and 

remand.

The following facts are undisputed or are otherwise supported by the 

record. On May 10, 2019, the Concord City Manager submitted a proposed 

2019-2020 operating budget to the Mayor and the City Council. Included 

under the proposed police budget was a $5,100 line item for “Covert 

Communications Equipment.” On May 24, the Monitor published a news

article titled “Concord’s $66.5M budget proposal has its secrets,” which 

discussed the line item. The Monitor reported that one of the City Councilors 

had asked the City Manager if he could provide a “hint” as to the nature of the 

equipment, but that the Manager had responded, “I don’t know how to answer 

that question[] without ‘answering it.’” The City Manager did not publicly 

identify the equipment, saying only that it was not body cameras or a drone. 

The Monitor reported that the Chief of Police had stated that the City has a 

non-disclosure agreement with the equipment’s vendor that prevents the City 

from publicizing the nature of the equipment.

Shortly thereafter, the ACLU and the Monitor filed separate Right-toKnow requests with the City. The ACLU requested “[d]ocuments sufficient to 

identify the specific nature of the ‘covert communications equipment’ sought by 

the Concord Police Department,” and “[a]ny contracts or agreements between 

the Concord Police Department or the City of Concord and the vendor providing 

the ‘covert communications equipment.’” The Monitor similarly requested 

“documents related to the $5,100 ‘covert communications equipment’ sought 

by the Concord Police Department,” including “any contracts or agreements 

between the Concord Police Department or the City of Concord and the vendor 

providing the equipment, documents that detail the nature of the equipment,

and the line items associated with the equipment in the department’s budget.”

The City responded to both requests by disclosing a partially-redacted

29-page, single-spaced “License & Services Agreement” between the City and 

the equipment vendor. The redactions included the name of the vendor, the 

state law that governs the agreement, the nature of the equipment, the type of 

information gathered by the vendor, and how the vendor uses that information. 

Most pages had fewer than 20 words redacted, and most of the redactions were 

either one or a few words. Representative of the redactions is the following:

“Law enforcement agencies may direct us to collect a wide variety of 

information from your [redacted] when you use the [redacted] services. The 

information may include: [multiple clauses redacted].” The disclosed portions

of the agreement included the following: (1) the vendor would provide a 

“Website, Applications, [and] Services”; (2) the City would maintain ownership 

of “location information” and “other data” generated from its use of the Website, 

Applications, and Services; (3) the vendor would be indemnified for any losses 
3

or damages incurred by the City due to a “suspension” of the Application; and 

(4) the City agreed to abide by the vendor’s “Acceptable Use Policy and Privacy 

Policy.” 

In a letter accompanying the redacted agreement, the City explained that 

the redactions were necessary because the agreement “contains confidential

information relative to surveillance technology that is exempt from disclosure 

under the law enforcement exemption” in Murray v. New Hampshire Division of 

State Police, 154 N.H. 579, 582 (2006). In Murray, we observed that the Rightto-Know Law does not explicitly address requests for law enforcement records 

or information, and we adopted the six-prong test under the federal Freedom of 

Information Act (FOIA) for evaluating requests for law enforcement records. 

Murray, 154 N.H. at 582. Under FOIA, the government may exempt from 

disclosure:

records or information compiled for law enforcement purposes, but 

only to the extent that the production of such law enforcement 

records or information (A) could reasonably be expected to interfere 

with enforcement proceedings, (B) would deprive a person of a right 

to a fair trial or an impartial adjudication, (C) could reasonably be 

expected to constitute an unwarranted invasion of personal privacy, 

(D) could reasonably be expected to disclose the identity of a 

confidential source, including a State, local, or foreign agency or 

authority or any private institution which furnished information on 

a confidential basis, and, in the case of a record or information 

compiled by criminal law enforcement authority in the course of a 

criminal investigation or by an agency conducting a lawful national 

security intelligence investigation, information furnished by a 

confidential source, (E) would disclose techniques and procedures 

for law enforcement investigations or prosecutions, or would disclose 

guidelines for law enforcement investigations or prosecutions if such 

disclosure could reasonably be expected to risk circumvention of the 

law, or (F) could reasonably be expected to endanger the life or 

physical safety of any individual . . . .

5 U.S.C. § 552(b)(7) (2018). We have referred to the six prongs collectively as 

the Murray exemption. See 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 

656, 661 (2012). In its letters to the plaintiffs, the City quoted Murray and

invoked prong (E). 

In response, the plaintiffs filed a petition in the superior court seeking 

disclosure of the redacted portions of the agreement. See RSA 91-A:7 (Supp. 

2020). The City responded that the redacted information was exempt from 

disclosure under Murray, and that it would not disclose “the name of the 

vendor or any of the information redacted from the documents as such 
4

disclosure could reasonably be expected to interfere with pending enforcement 

proceedings, disclose techniques and procedures for law enforcement 

investigations, risk circumvention of the law and endanger the life or physical 

safety of any individual.” In effect, the City invoked prongs (A), (E), and (F) of 

the Murray exemption. See Murray, 154 N.H. at 582. 

Shortly thereafter, the plaintiffs served a request for production of 

documents, see Super. Ct. R. 24, seeking an unredacted copy of the agreement,

as well as other documents and contracts responsive to their Right-to-Know 

requests. The plaintiffs proposed that the documents be produced “subject to 

a mutually agreeable protective order.” The City filed a motion to quash, 

arguing that a “petitioner cannot be allowed to circumvent the Right-to-Know

Law exemptions simply by filing a Right-to-Know lawsuit and obtaining 

exempted materials through discovery.” The City reiterated its position that 

the redacted information was “not subject to disclosure under [prongs] A, E 

and F,” and submitted a two-page affidavit from the Chief of Police in which he

stated that disclosure of the information could reasonably be expected to 

interfere with pending investigations, risk circumvention of the law, and 

endanger the life or physical safety of officers. See Murray, 154 N.H. at 582. 

With the plaintiffs’ assent, the City also submitted an unredacted copy of the

agreement to the trial court for in camera review. In addition, the City filed a 

motion for an ex parte in camera hearing, offering to make a police department

representative available to answer the court’s questions regarding the 

redactions. The plaintiffs objected.

In October 2019, the court held a 45-minute hearing on the pending 

motions. During the hearing, the court characterized the Chief’s affidavit as 

“conclusory.” In a subsequent written order, the court ruled that the City had 

failed to demonstrate that the redacted information was exempt from 

disclosure but that the court needed additional information before reaching a 

final decision. It therefore granted the City’s motion for an ex parte in camera

hearing. Neither the plaintiffs, nor their counsel, were permitted to attend.

At the ex parte in camera hearing, the Chief of Police testified as to the 

nature of the equipment and how it is used by the department. He explained 

how disclosing the name of the vendor and the nature of the equipment would 

undermine law enforcement investigations, risk circumvention of the law, and 

endanger lives. Although the transcript of the hearing is part of the record on 

appeal, the plaintiffs have never had access to the transcript. The trial court 

ruled that the redacted portions of the agreement are exempt from disclosure 

under prongs (A), (E), and (F) of the Murray exemption. This appeal followed.

On appeal, the plaintiffs argue that the trial court erred when it ruled 

that the redacted information is exempt from disclosure under prongs (A), (E), 

and (F), and also erred when it conducted the ex parte in camera hearing. The 
5

City counters that it met its burden to demonstrate exemption under all three 

prongs, and that it was within the discretion of the trial court to hold the ex

parte in camera hearing. We conclude that the court did not err when it 

conducted the hearing, and that it properly determined that most of the 

redacted information was exempt from disclosure. However, we also conclude 

that it erred by not disclosing one provision of the agreement.

“We review the trial court’s interpretation of the Right-to-Know Law and 

its application of the law to undisputed facts de novo.” 38 Endicott St. N., 163 

N.H. at 660. “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.” Montenegro v. City of 

Dover, 162 N.H. 641, 645 (2011) (quotation omitted). “Thus, the Right-to-Know 

Law helps further our state constitutional requirement that the public’s right of 

access to governmental proceedings and records shall not be unreasonably 

restricted.” Id. We construe provisions favoring disclosure broadly, while 

construing exemptions narrowly. Murray, 154 N.H. at 581. Therefore, when a 

public entity seeks to avoid disclosure of material under the Right-to-Know 

Law, that entity bears a heavy burden to shift the balance toward 

nondisclosure. Reid v. N.H. Attorney Gen., 169 N.H. 509, 532 (2016). “In 

interpreting provisions of the . . . Right-to-Know Law, we often look to the 

decisions of other jurisdictions interpreting similar provisions of other statutes 

for guidance, including federal interpretations of [FOIA].” 38 Endicott St. N., 

163 N.H. at 660; see Murray, 154 N.H. at 581.

We first address the plaintiffs’ argument that the trial court erred when it 

conducted the ex parte in camera hearing. The plaintiffs assert that the court 

erred because it is a “standard requirement that all evidence and argument 

presented to a judge should be presented to opposing counsel,” and no statute

or rule authorizes a “deviation” from that requirement in a Right-to-Know Law

case. They contend that holding the hearing was antithetical to the adversarial 

process, and that the hearing was a fundamentally unfair and unreliable

procedure because it denied them the opportunity to cross-examine the City’s 

witnesses and highlight shortcomings in the City’s evidence.

The Right-to-Know Law requires “the necessary accommodation of . . . 

competing interests.” Clay v. City of Dover, 169 N.H. 681, 686 (2017) 

(quotation omitted). On one hand, when the government seeks to withhold 

requested documents, it has “exclusive control of vital information.” Union 

Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 548 (1997). Because 

only the government has possession of the withheld documents, the petitioner

must argue that a document is not exempt from disclosure with only “limited 

knowledge” of the document’s contents. Id. For that reason, the government 

bears the burden of demonstrating that a document is exempt from disclosure, 

see Murray, 154 N.H. at 581, and it must provide a justification for exemption 
6

sufficient for the trial court to determine the applicability of the claimed 

exemption and for the petitioner to argue against exemption with some

specificity. See N.H. Housing Fin. Auth., 142 N.H. at 548-50 (explaining the 

purpose of a Vaughn index, a procedure often used in cases with a large 

number of documents potentially responsive to a Right-to-Know request, in 

which the government produces a general description of each document 

withheld and a justification for nondisclosure). Unless the government 

discloses “as much information as possible without thwarting the claimed 

exemption’s purpose, the adversarial process is unnecessarily compromised.” 

Id. at 549 (quotation omitted). 

On the other hand, we have recognized that the government may take 

precautionary measures in order to prevent disclosure of the very information 

that it hopes to keep confidential. We approved the government submitting an

affidavit to the court in order to justify its withholding of documents, and 

deemed that affidavit sufficient when it “fairly describe[d] the content of the 

material withheld and adequately state[d] the grounds for nondisclosure.” 38 

Endicott St. N., 163 N.H. at 667 (quotation and brackets omitted). We have

also explained that when the government seeks to justify withholding 

documents under prong (A), “generic determinations of likely interference [with 

enforcement proceedings] often will suffice,” and the government’s description 

of the withheld information should not be so detailed “as to reveal the nature 

and scope of the investigation.” Murray, 154 N.H. at 583. Thus, the 

government’s justification for exemption need not be so specific as to reveal the 

withheld information, and the requesting party is not entitled to learn all of the 

information that forms the basis for the withholding. See id.

To balance these competing interests, the trial court may, in some 

circumstances, utilize in camera procedures before reaching a decision 

regarding disclosure. In Union Leader Corp. v. City of Nashua, we reviewed the 

trial court’s denial of a Right-to-Know petition based upon prong (C) of the

Murray exemption, which exempts from disclosure records or information

compiled for law enforcement purposes when disclosure would “constitute an 

unwarranted invasion of privacy.” Union Leader Corp. v. City of Nashua, 141 

N.H. 473, 475 (1996) (quotation omitted). We affirmed the trial court’s in

camera review of the documents at issue without counsel present, explaining 

that “ex parte in camera review of records whose release may cause an invasion 

of privacy is plainly appropriate,” but that this procedure should “be used 

cautiously and rarely.” Id. at 478. We explained that, to facilitate appellate 

review, when the trial court conducts an in camera review under such 

circumstances, “a record must be taken of any hearings that are held, whether 

counsel for one or both parties are present.” Id. (emphasis added). 

Accordingly, although City of Nashua involved only in camera review of 

documents and not an ex parte in camera hearing, we suggested that there

may be circumstances when the trial court may hold an ex parte in camera

hearing before applying the Murray exemption. See id. 
7

Since City of Nashua, we have not addressed the use of ex parte in

camera hearings in Right-to-Know Law cases. In the absence of controlling 

New Hampshire precedent construing RSA chapter 91-A, we look to federal 

FOIA cases for guidance. See 38 Endicott St. N., 163 N.H. at 660. FOIA 

expressly permits trial courts to examine documents in camera before 

determining whether they may be withheld. See 5 U.S.C. § 552(a)(4)(B) (2018). 

Many federal circuit courts have recognized that trial courts may utilize 

procedures that are “necessary to prevent the litigation process from revealing 

the very information the agency hopes to protect.” American Civil Liberties 

Union v. C.I.A., 710 F.3d 422, 432-33 (D.C. Cir. 2013) (noting that, in some 

circumstances, a court may permit the government to submit a Vaughn index 

in camera). Those procedures include the consideration of ex parte affidavits 

and the conduct of ex parte proceedings. See, e.g., New York Times Co. v. U.S. 

Dept. of Justice, 806 F.3d 682, 685, 689 (2d Cir. 2015) (allowing government to 

present ex parte in camera oral argument to the court immediately before

hearing arguments from all parties in open court); Manna v. U.S. Dept. of 

Justice, 51 F.3d 1158, 1163 (3d Cir. 1995) (explaining that, if public disclosure 

of the information needed to reach a decision would frustrate the exemption, 

the court may permit the government to submit sealed affidavits); Long v. 

United States I.R.S., 742 F.2d 1173, 1182 (9th Cir. 1984) (observing that, 

under certain circumstances, a court may accept “nonpublic affidavits” or 

“proceed ex parte to the extent it deems necessary to protect the integrity” of 

the information claimed to be exempt from disclosure). 

At the same time, federal circuit courts emphasize that these procedures 

should be used in only limited circumstances, and have held that, prior to 

employing ex parte procedures, the trial court must first require the 

government to submit public affidavits or testimony providing “as detailed 

public disclosure as possible of the government’s reasons for withholding 

documents.” Lion Raisins v. U.S. Dept. of Agriculture, 354 F.3d 1072, 1082-84 

(9th Cir. 2004) (reversing trial court’s withholding of documents under law 

enforcement exemption where government submitted no public affidavits 

justifying application of the exemption and court relied solely on government’s 

ex parte affidavit), overruled on other grounds by Animal Legal Defense Fund v. 

U.S. F.D.A., 836 F.3d 987, 989-90 (9th Cir. 2016); see also Lykins v. United 

States Dept. of Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984). Detailed public 

disclosure is “necessary to restore, to the extent possible, a traditional 

adversarial proceeding by giving the party seeking the documents a meaningful 

opportunity to oppose the government’s claim of exemption.” Lion Raisins, 354 

F.3d at 1083. Only if the government’s detailed public disclosures fail to 

“provide a sufficient basis for a decision” may the trial court accept ex parte

affidavits or conduct ex parte proceedings, and it may do so only to the limited 

extent necessary to protect the information from disclosure. Pollard v. F.B.I., 

705 F.2d 1151, 1154 (9th Cir. 1983); Long, 742 F.2d at 1182.
8

This approach, drawn from federal law, is consonant with our Right-toKnow Law jurisprudence. See, e.g., N.H. Housing Fin. Auth., 142 N.H. at 551

(“In camera examination is not a substitute for the [defendant’s] obligation to 

provide detailed public indexes and justifications whenever possible.” 

(quotation omitted)); City of Nashua, 141 N.H. at 478 (implying that ex parte in

camera hearings may be appropriate under some circumstances involving the 

Murray exemption). We therefore hold that, in cases involving the Murray

exemption, a trial court may exercise its discretion to hold an ex parte in

camera hearing — but only after it has required the government to make as 

complete and detailed a public disclosure justifying exemption as possible, and 

determined that the disclosure nonetheless fails to provide a sufficient basis for 

it to make a decision. This threshold determination will ensure that ex parte in

camera hearings are “used cautiously and rarely.” City of Nashua, 141 N.H. at 

478. We will review both a trial court’s finding that this threshold has been 

met and its decision to hold an ex parte in camera hearing under our

unsustainable exercise of discretion standard. See Larson v. Department of 

State, 565 F.3d 857, 869-70 (D.C. Cir. 2009) (reviewing trial court’s decision 

about whether to conduct in camera review of documents and ex parte

declaration for abuse of discretion); State v. Lambert, 147 N.H. 295, 296 (2001) 

(explaining that we refer to the abuse of discretion standard as the 

unsustainable exercise of discretion standard and describing the requirements 

of that standard).

The plaintiffs argue that, although federal cases such as New York Times 

Co. support the proposition that a court may conduct an ex parte in camera

hearing under certain circumstances, those cases are distinguishable because 

they involve national security concerns that are not present here. The plaintiffs 

contend that, although a court may hold an ex parte in camera hearing when 

the withheld documents contain highly sensitive national security information, 

such as information regarding terrorism investigations, the information 

withheld in this case does not warrant such protection. We are not persuaded. 

The government is not required to publicly disclose information that 

would undermine the very purpose of the exemption, see N.H. Housing Fin. 

Auth., 142 N.H. at 549, and procedures such as ex parte hearings and 

affidavits are designed to safeguard the interests protected by the exemption, 

while still providing the court with a “reasonable basis to evaluate the claim of 

privilege.” American Civil Liberties Union, 710 F.3d at 432-33 (quotation 

omitted); see New York Times Co., 806 F.3d at 689. Regardless of whether the 

government claims exemption for national security or law enforcement reasons, 

an ex parte in camera hearing is sometimes necessary to “accommodat[e] . . .

the competing interests involved.” Clay, 169 N.H. at 686 (quotation omitted); 

see Manna, 51 F.3d at 1164-65 (concluding, based in part on government’s ex

parte affidavits, that requested documents were exempt from disclosure

because disclosure could reasonably be expected to interfere with law 

enforcement proceedings).
9

Having articulated the applicable standard, we now analyze whether the 

court erred when it conducted the ex parte in camera hearing in this case. 

Prior to the ex parte in camera hearing, the City had publicly disclosed a 

partially redacted copy of the “License & Services Agreement” between the City 

and the equipment vendor. In its response to the plaintiffs’ requests, the City 

explained that the redacted portions of the agreement contained “confidential 

information relative to surveillance technology,” and asserted that disclosure

“could compromise the effectiveness of the technology and allow individuals 

who are the subjects of investigations to employ countermeasures.” The City 

subsequently filed a public affidavit from the Chief of Police, in which he

asserted that disclosure of the redacted information “could tip off those 

persons who are subject to the pending investigations as to the strategy in 

implementing the specific techniques in the investigations,” and provide “those 

who wish to engage in criminal activity with the ability to adjust their behaviors 

in an effort to avoid detection.” In effect, through the Chief’s affidavit and 

during the hearing on the City’s motion for an ex parte in camera hearing, the 

City represented that additional public disclosure of the reasons for the 

redactions would undermine the interests protected by the Murray exemption. 

After its review of this information and the unredacted agreement, the 

trial court concluded that the City’s representations and public disclosures 

were inadequate to justify the redactions, and that “it need[ed] further 

information before reaching a decision.” The trial court therefore granted the 

City’s motion for an ex parte in camera hearing. In making that determination, 

the court credited the City’s claims that additional public disclosure of the 

reasons for the redactions might undermine the purpose of the claimed 

exemptions. See 38 Endicott St. N., 163 N.H. at 659, 666-68 (ruling that 

documents related to State Fire Marshal’s investigation of a fire were exempt 

from disclosure under Murray prong (A) based upon representations made in 

fire investigator’s affidavit, which “the trial court was entitled to credit”); 

Citizens for Resp. & Ethics v. Dept. of Justice, 746 F.3d 1082, 1098 (D.C. Cir. 

2014) (observing that courts “give deference to an agency’s predictive judgment 

of the harm that will result from disclosure”); Long, 742 F.2d at 1182 

(explaining that, in cases involving “sensitive areas” such as national security 

and law enforcement, “courts have accorded special deference to an agency’s 

detailed affidavits”). The court also considered the possibility of holding a 

closed hearing with only counsel for all parties present, but rejected that 

approach due to the “sensitive nature of the information in question,” and the 

potential for harm if the court did not “keep disclosure of the information to a 

minimum.”

We conclude that the trial court satisfied the standard we set forth 

above: as a threshold matter, the court required the City to make as detailed a 

public disclosure as possible without compromising the purpose of the claimed 

exemption, and it then concluded that the public disclosure was insufficient for 
10

it to reach a decision. After the court observed that ex parte proceedings 

should rarely be used, it reasoned that, because it could not reach a decision 

“without learning more about . . . the covert communications equipment,” and 

due to the risks posed by additional public disclosure, an ex parte in camera

hearing was appropriate. Under these circumstances, we conclude that the 

trial court’s decision to conduct an ex parte in camera hearing was a

sustainable exercise of discretion. 

Nonetheless, we take this occasion to emphasize that ex parte in camera

hearings “should be used cautiously and rarely.” City of Nashua, 141 N.H. at 

478. If a trial court is unsatisfied with a defendant’s public disclosures, it may

“require [the defendant] to submit more detailed public affidavits before 

resorting to in camera review” of the withheld documents or ex parte affidavits. 

Pollard, 705 F.2d at 1154. Trial courts should also carefully consider whether 

other steps short of an ex parte in camera hearing — such as holding a closed

hearing with only counsel present, or with only counsel and all parties present

— would “accommodat[e] . . . the competing interests involved.” Clay, 169 N.H. 

at 686.

Having affirmed the trial court’s decision to conduct the ex parte in

camera hearing, we now turn to the court’s ruling that the redacted 

information is exempt from disclosure under prongs (A), (E), and (F) of the

Murray exemption. See Murray, 154 N.H. at 582. The plaintiffs are in a 

difficult position because they have not had access to the unredacted 

agreement. They do not dispute that the redacted information was “compiled 

for law enforcement purposes,” id.; however, they argue that the City failed to 

meet its burden of demonstrating that the redacted information is exempt from 

disclosure under any of the three identified prongs of the Murray exemption.

They contend that any harm that could result from disclosure is speculative,

that the City’s public explanations for exemption were conclusory, and that the 

information withheld by the City is materially different from the information 

that we ruled was exempt from disclosure in Montenegro. The City counters 

that it met its burden of demonstrating that all of the redacted information is 

exempt under prongs (A), (E), or (F) of the Murray exemption. 

We note that both parties make blanket arguments regarding the 

redacted information — the City asserts that all of the redactions are justified,

while the plaintiffs contend that none of them are. But whether the City met

its burden as to the redacted information is not an all-or-nothing proposition. 

Our task is to examine each redaction in turn in light of the applicable law. 

After doing so, we conclude that the trial court did not err in ruling that the 

following information is exempt from disclosure under prong (E) of the Murray

exemption: the name of the vendor, the nature of the equipment, the type of 

information gathered by the vendor, and how the vendor uses that information. 

And we affirm, by an equally divided court, the trial court’s nondisclosure of 

the choice-of-law provision. However, we also conclude that the court erred in 
11

upholding the redaction of a clause in the agreement giving the vendor certain 

rights should the possibility of public disclosure of the technology arise. That 

provision of the agreement shall be disclosed on remand. 

We first address the redactions concerning the name of the vendor, the 

nature of the equipment, the type of information gathered by the vendor, and 

how the vendor uses that information. In Montenegro, we considered the 

extent to which the City of Dover could withhold information about the nature 

and implementation of surveillance equipment that it used for law enforcement 

purposes. See Montenegro, 162 N.H. at 643. Looking to federal cases 

construing FOIA for guidance, we explained that information is exempt from 

disclosure under prong (E) if disclosure “could lead to decreased effectiveness 

in future investigations by allowing potential subjects to anticipate and identify 

[investigation] techniques as they are being employed.” Id. at 647 (quotations

omitted). We therefore concluded that “the precise locations of the City’s 

surveillance equipment, the recording capabilities for each piece of equipment, 

the specific time periods each piece of equipment [was] expected to be 

operational, and the retention time for any recordings” were exempt from 

disclosure under prong (E) because that information was “of such substantive 

detail that it could reasonably be expected to risk circumvention of the law by 

providing those who wish to engage in criminal activity with the ability to 

adjust their behaviors in an effort to avoid detection.” Id. at 647-48. 

Montenegro establishes that information may be exempt from disclosure 

under prong (E) even if it is not certain that disclosure would result in 

circumvention of the law. Rather, information is exempt if disclosure “could

lead to decreased effectiveness in future investigations” by providing those who 

wish to engage in criminal activity with the “ability” to avoid detection. Id. 

(quotation omitted and emphasis added). The federal courts have similarly

recognized that, under FOIA, information may be exempt under prong (E) even 

if it is not certain that disclosure would result in circumvention of the law. The 

federal courts have explained that prong (E) “sets a relatively low bar for the 

agency to justify withholding.” Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 

2011). Prong (E) requires only that the agency demonstrate logically how the 

release of the requested information might create a risk of circumvention of the 

law. Mayer Brown LLP v. I.R.S., 562 F.3d 1190, 1193-94 (D.C. Cir. 2009)

(ruling that information about what the IRS considered to be acceptable 

settlement ranges for tax evasion was exempt because disclosure might lead 

some taxpayers to conclude that the financial benefits of evasion would 

outweigh the risks from being caught). Thus, to meet its burden, the City was 

required to establish only that disclosure could reasonably be expected to risk 

circumvention of the law.

We have reviewed the unredacted agreement and the transcript of the ex

parte in camera hearing. We agree with the trial court that disclosing the 

name of the vendor, the nature of the equipment, the type of information 
12

gathered by the vendor, and how the vendor uses that information, could

reasonably be expected to risk circumvention of the law by allowing individuals

to learn about the surveillance technology and take evasive measures against 

it. See Montenegro, 162 N.H. at 647-48. The surveillance technology at issue 

here was described by the trial court as a “confidential technique,” unlike the 

surveillance cameras at issue in Montenegro. See id. at 643; see also ACLU of 

Northern CA v. U.S. Dept. of Justice, 880 F.3d 473, 491 (9th Cir. 2018) 

(explaining that prong (E) of FOIA’s law enforcement exemption “exempts 

investigative techniques not generally known to the public” (quotation 

omitted)). Moreover, even if the surveillance technology were publicly known as 

a law enforcement technique, the redacted material would still be exempt 

because it would reveal the specific means by which the technology is 

employed by the City. See ACLU of Northern CA, 880 F.3d at 491; see also

Blackwell, 646 F.3d at 42 (specific techniques used by FBI to conduct forensic 

computer examinations were exempt from disclosure). Accordingly, the 

redacted information that falls within the categories listed above is exempt 

from disclosure.

In addition, as to the choice-of-law provision, the court is equally divided 

as to whether the City met its burden of proving that the provision is exempt 

from disclosure under prongs (A), (E), or (F) of the Murray exemption. 

Therefore, the trial court’s ruling that this information is exempt from 

disclosure is affirmed. See PK’s Landscaping, Inc. v. N.E. Telephone Co., 128 

N.H. 753, 754, 758 (1986) (affirming, by an equally divided court, order 

granting summary judgment). 

However, as to one specific provision, we conclude that the trial court 

erred when it found that the City had met its burden to justify nondisclosure. 

See Reid, 169 N.H. at 532. The City failed to offer, in either its public 

disclosures or at the ex parte hearing, any rationale for the redaction of a 

clause in the agreement giving the vendor certain rights should the possibility 

of public disclosure of the technology arise. Given the City’s failure to carry its 

burden as to this provision, the trial court committed error in ruling that the 

provision was exempt from disclosure. When, after receiving adequate notice 

and having multiple opportunities to justify withholding the information, a 

public entity fails to meet its burden, disclosure of the withheld information is 

appropriate. See N.H. Housing Fin. Auth., 142 N.H. at 551-52 (affirming trial 

court’s decision to order summary disclosure of documents inadequately 

described in Vaughn index, when party had repeatedly failed to comply with 

court’s order to produce an adequate index). Accordingly, we remand to the

trial court and order that the clause described above be disclosed. 

Finally, two of the redactions contain information that the City 

subsequently disclosed in its responses to the plaintiffs’ Right-to-Know 

requests and in the Chief’s affidavit. Accordingly, the City has waived its right 
13

to claim that the information is exempt from disclosure, and we order that the 

information be disclosed on remand. See American Civil Liberties Union, 710

F.3d at 426 (recognizing that, under FOIA, “when an agency has officially 

acknowledged otherwise exempt information through prior disclosure, the

agency has waived its right to claim an exemption with respect to that 

information”).

Affirmed in part; reversed in 

part; and remanded.

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