CONCORD — Police personnel files did not magically become public records last week, despite a New Hampshire Supreme Court ruling that threw out a 27-year-old legal precedent that had kept them locked away from public access, lawyers in the case said.

Anyone who wants access to the personnel file of a police officer or any public employee will have to show good reason, most likely to a judge, why the file should be open, according to Gilles Bissonnette, legal director of ACLU New Hampshire, which prevailed in the two decisions.

“It’s a balancing test, so the answers to those questions will be addressed on a case-by-case basis based on the facts and circumstances of the case,” Bissonnette said in an email.

The court’s 3-1 decisions Friday involved cases brought by newspapers and the ACLU seeking access to records connected to high-profile cases of police misconduct in Salem and Portsmouth.

The Supreme Court sent both cases back to the trial court and told the judge to balance competing portions of state law that provide public access to critical documents but protect confidential portions of personnel files.

The two cases upended a decision rendered in the 1993 case of Union Leader v. Fenniman, named after former Dover Police Chief William Fenniman. In that decision, a different set of justices ruled that anything that landed in a public employee’s personnel file was categorically exempt from public disclosure.

“Our broad interpretation of the exemption in Fenniman, which has resulted in a broad category of governmental documents being withheld from public inspection, is contradictory to our state’s principles of open government,” wrote Justice Patrick Donovan, an appointee of Gov. Chris Sununu, in the Portsmouth case.

Seacoast Newspapers and the ACLU brought the Portsmouth case, seeking access to an arbitration decision involving former Portsmouth police officer Aaron Goodwin, who developed an influential relationship with a wealthy neighbor, Geraldine Webber. He inherited the bulk of her $2.7 million estate, though a probate court later threw out the bequest.

The Union Leader Corp. and the ACLU sued for access to a complete, 42-page audit critical of Salem police. A veteran Salem sergeant has been indicted, and former top officials remain under criminal investigation. Salem has released a redacted version of the audit, but lawyers in that case will likely return to court and ask the judge to release the complete audit, Bissonnette said. He noted that the trial judge already has ruled the public has an interest in the information’s disclosure.

‘Victories for the public’

“The two decisions released today by the Supreme Court are victories for the public’s right to know what the government is up to,” said Gregory Sullivan, an attorney and media law expert who represented the Union Leader.

“The New Hampshire Union Leader has been fighting for decades to shine the light of public scrutiny upon all public agencies, and nowhere is the public’s right to know more important than within the functioning of law enforcement agencies,” said Sullivan, who argued the Fenniman case in 1993.

The Supreme Court is weighing two other Right-to-Know cases — one involving the state’s secret Laurie list of problem police officers and the other related to a Keene State College journalism professor’s efforts to gain access to Keene city government records on behalf of her students.

Internal practices

The New Hampshire Right to Know Law makes most government records available for public perusal and copying. Those include government financial documents and regulatory records, decisions of elected and appointed boards and completed police investigations. But it also exempts some records from disclosure, such as test questions, jury deliberations, welfare records, medical records and what the law termed “internal personnel practices.”

In the Fenniman case, the Supreme Court ruled that “internal personnel practices” refer to just about anything in a personnel file, including any reports of wrongdoing. Lawyers for the newspapers and ACLU argued the files should be subject to a balancing test, as are other categories of public records, such as confidential, commercial or financial information.

In their ruling, the justices redefined “internal personnel practices” to a narrow category of internal rules and practices governing operations and employee relations.

Overturning precedent

Appeals courts usually avoid overturning previous decisions and follow the principle of stare decisis, a Latin term for let the decision stand.

In the 16-page Portsmouth case, the Supreme Court weighed the reasons for doing so. It cited two reasons to keep Fenniman — its simplicity and the fact that many officials rely on it. But the majority said the Fenniman ruling actually conflicted with previous court rulings. Also, Fenniman contradicted other portions of the Right-to-Know Law. The court also overturned any cases whose reasoning were based on Fenniman.

Dissent

Officials from town governments and police unions urged that Fenniman be kept intact.

In an email, the lawyer who argued the case for the New England Police Benevolent Association said he was surprised that the Supreme Court overturned a precedent of nearly three decades. “We will continue to fight for the rights of public employees and argue that the limited disclosures made by the municipalities in these cases were appropriate and strike a proper balance between the public’s right to know and the individual’s right to privacy,” wrote Peter J. Perroni.

Supreme Court Justice Anna Barbara Hantz Marconi, another Sununu appointee, dissented in the Salem case and partially dissented in the Portsmouth case. Thousands of government employees have relied on Fenniman as the law, including administrators who believed their efforts to investigate, evaluate and improve government operations would be protected, she wrote.

She said Fenniman was soundly reasoned. And she said the Legislature could address the problem. “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,” Marconi wrote.

Wednesday, July 01, 2020
Tuesday, June 30, 2020