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, Concor d, 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 email 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: https://www.courts.nh.gov/our

- courts/supreme

- court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2020

- 0036

AMERICAN CIVIL LIBER TIES UNION OF NEW HA MPSHIRE & 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 plaintiff s

.

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 “cover t communications equipment” are exempt from disclosure under the Right

- to

Know 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 when2

it held an ex parte in camera hearing, during which the City present ed 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 C ity M anager submitted a proposed

2019

- 20 20 operating budget to the Mayor and the City C ouncil. Included under the proposed police budget was a $5,100 line item for “ Covert

C o mmunications E quipment.” On May 24, the Monitor published a news

ar ticle titled “Concord’s $66.5M b ud get proposal has its s ecrets,” which

discussed the line item. The Mo nitor reported that one of the City C ouncilors

had asked the City M anager if he could provide a “hint” as to the nature of the equipment, but that the M anager had responded, “I don’t know how to answer that question [] withou t ‘answering it.’” The City M anager did not publicly identify the equipment, saying only that it was not body cameras or a drone.

The Monitor repor ted that the C hief of P olice had stated that the City has a

non

- disclosure agreement with the e quipment’s v endor that prevents the City from publicizing the nature of the equipment

.

Shortly thereafter, the ACLU and the Monitor filed separate Right

- to

Know requests with the City. The ACLU requested “[d]ocuments sufficient to

ident ify 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 Concor d and the vendor providing

the ‘ covert communications equi pment

. ’” The Monitor si milarly 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

- space d “License & Services Agreement” between the City and the equipment vendor. T he 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 th an 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].” T he disclosed portions of the agreement i ncluded the follow ing : (1) the vendor would provide a “Website, Applications, [and] S ervices ” ; (2) the City would maintain ownership of “location information” and “other data” generated from its use of the Website, Applications, and S ervices; (3) the vendor would be indemni fied for any losses3

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 explain ed that the redactions were necessary because the agreement “contains confidential

information relative to surveillance technology that is exempt from disclosure

under the law enforcement e xemption ” in Murray v. New Hampshire Div ision of

State Police , 154 N.H. 579, 582 (2006). In Murray , we observed that the Right

to

- Know Law does not explicitly address requests for law enfor cement records or information, and w e adopted the six

- prong test under the federal Free dom of Information Act (FOIA) for evalua ting 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

r ecords 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 so urce, 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

cri minal 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 th e six prongs collectively as

the Murray exemption. See 38 Endicott St. N. v. State Fire Marshal , 163 N.H. 656, 661 (2012)

. In its letter s to th e 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 ). T he City responded that the redacted information was exempt from

disclosure under Murray

, and that it w ould not disclose “ the name of the vendor or any of the information redacted from the documents as such4

disclosure could reasonably be expected to interfere with pending enforcement proceedings, disclose techniques and procedures for law enforcement

inve stigations, risk circ umvention of the law and endanger the life or physical safety of any individual.” I n 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 pro duction of

documents

, see Super. Ct. R. 24, seeking an unre d acted copy of the agreement

, as well as other documents and contracts responsive to their Right

- to

- Know requests. The plaintiff s 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 C ity 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 C hief of P olice in which he

stat ed 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 p laintiffs object ed

.

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 C ity 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 P olice 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 w ould

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. T he 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 wh en 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. The5

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 d isclosure . 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 Endi cott St. N.

, 163

N.H. at 66 0

. “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

n ondisclosure. 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, includin g 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 th e 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 i n the City’ s evidence.

T he Right

- to

- Know L aw require s “the necessary accommodation of . . . competing interest s. ” Clay v. City of Dover , 169 N.H. 681, 686 (2017) (quotation omitted). On one hand, when the government seeks to withhold
requeste d documents, it has “ exclusive control of vital information. ” Union Leader Corp. v. N.H. Housing Fin. Auth. , 142 N.H. 540, 54 8 (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 justifica tion for exemption6

sufficient for the trial court to determine the applica bility of the claimed exemption and for the petitioner to argue against exemption with some specificity. See N.H. Housing Fin. Auth. , 1 42 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 justifica t ion 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 c onfidential

. We approved the government submit ting 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). W e 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 d enial 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 with out 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, w hen 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 , a lthough 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 , w e have not address ed 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).

M any federal circuit courts have recognized tha t trial courts may utilize procedures that are “necess ary 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) (e xplaining 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 pu blic 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 withholdin g 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 i f 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

- to

Know 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 inde xes 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

, an d

determ ined that the disclosure nonetheless fail s to provide a sufficient basis for

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

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

478. W e 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. 20 09) (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 contai n highly sensitive national security information, such as information regarding terrorism investigations , the information

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

.

T he government is not required to publicly disclose information that would undermine the very purpose of the exemption, s ee 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 st ill 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 68 9

. R egardless of whether the government claims exemption f or national security or law enforcement reason s ,

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 wi th law enforcement proceedings).9

Having articulated t he applicable standard

, we now analyze whether the

court erred when it conduct ed 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. I n 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 c riminal 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, t he City represented that additional public disclosure of the reason s for the

redactions would unde rmine 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

informa tion 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

do cuments 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”);

Citi zens for Resp. & Ethic s 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 t hat will result from disclosure ” ) ; Long , 742 F.2d at 1182 (explaining that, in cases involving “sensitive areas” such as national secu rity

and law enforcement

, “courts have accorded special deference to an agency’s detailed affidavits”). The court als o considered the possibility of holding a

closed hearing with only counsel fo r 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 insuffici ent for10

it t o 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 ad ditional public disclosure , an ex parte in camera hearing was appropriate

. Under these circumstances, we conclu de that the

trial court’s decision to conduct an ex parte in camera hearing was a sustainable exercise of discretion

.

Nonetheless, w e take this occasion to emphasize that ex parte in camera hearings “shoul d be used cautiously and rarely

. ” City of Nashua , 141 N.H. at

478

. If a trial cou rt 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 “accom m odat[e] . . . the competing interests involved.” Clay , 169 N.H.

at 686

.

Having affirmed the tria l 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 i ts burden of demonstrat ing 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 demonstrat ing 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

, whil e 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 b y 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 in11

upholding the redaction of a clause in the agreement giving the vendor certain rights should the possibility of public disclosure of the technology arise. T hat provision of the agreement shall be disclosed on remand.

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

na ture 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 surveilla nce 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 decrease d effectiveness in future investigations by allowing potential subjects to anticipate and identify [investigation] techni ques as they are being employed

. ” Id . at 647 (quotation s 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 [w as ] expected to be operational, and the retention time for any recordings” were exempt from

disclosure under prong (E) becau se 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, un der 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.” Bl ackwell v. F.B.I. , 646 F.3d 37, 42 (D.C. Cir. 2011). P rong (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, 119 3

- 9 4 (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 . W e agree with the trial court that disclosing the name of the vendor, the nature of the equipment, the type of information12

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 techniq ue,” unlike the

surveillance cameras at issue in Montenegro

. See id . at 643; see also ACLU of Northern CA v. U.S. Dep t. 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)). More o ver , 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 e xempt 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 th e 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 fr om disclosure. When

, after receiving adequate notice and having multiple opportunities to justify withholding the information, a public entity fail s to meet its burden

, disclosure of the withheld information is appropriate. See N.H. Housing Fin. Auth. , 1 42 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 Cit y subsequently disclosed in its responses to the plaintiffs’ Right

- to

- Know requests and in the Chief’s affidavit. Accordingly, the City has waived its right13

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, u nder 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

.

HIC K S, HANTZ MARCONI, and DONOVAN, JJ., concurred.