CONCORD — A depleted New Hampshire Supreme Court takes up three cases Wednesday that could determine how far the Right to Know Law can be used to obtain information of public employee misconduct.
Lawyers for two media organizations — the Union Leader Corp. and Seacoast Newspapers Inc. — and Keene State College will ask the four sitting Supreme Court justices to rethink a 1993 decision that categorically exempts personnel records from public disclosure.
It will be a difficult task, according to Gregory Sullivan, who is representing the Union Leader and KSC.
“We’re trying to overturn 26 years of an ingrained mistake,” he said.
The municipalities of Portsmouth, Salem and Keene will be fighting the effort and have urged the Supreme Court to stick with the 1993 decision that involved former Dover police Chief William Fenniman. Unions representing police in both Portsmouth and Salem and the New Hampshire Municipal Association have filed briefs in some of the cases. They say the Supreme Court should defer to elected officials.
“The legislature has tacitly approved this Court’s precedent and amended the Right to Know law numerous times without correction or addressing this Court’s express interpretation of legislative intent in (Fenniman),” wrote Massachusetts lawyer Peter Perroni, who represents the Salem and Portsmouth police officers’ union.
Four justices will hear the case, according to the court system. The high court has been short-staffed since late August, when then-Chief Justice Robert Lynn reached his mandatory retirement age.
Earlier this year, the Executive Council rejected Gov. Chris Sununu’s nominee to replace Lynn, Attorney General Gordon MacDonald.
His spokesman, Ben Vihstadt, said the Executive Council played politics in rejecting MacDonald, and Sununu has not timetable to replace Lynn.
“He is not going to bring folks forward if politics is a key variable in the decision-making of the Executive Council,” Vihstadt said.
The New Hampshire Right to Know Law makes most government records available for public perusal and copying. Those include financial documents and regulatory records, decisions of elected and appointed board, completed investigations by police and other government agencies.
But it also exempts some records from disclosure. Those include 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 or accommodation.
Sullivan said the court interpretation of the term “internal personnel practices” is far too broad.
“When it comes to police misconduct, the public has a right to know not only what happened, but whether or not the management of these agencies have taken the appropriate steps to address the misconduct,” he said.
The American Civil Liberties Union has also signed on to the Salem case with the Union Leader.
In that case, the newspaper seeks access to an unredacted audit of Salem police. The Kroll audit uncovered mismanagement in the police department that led to the resignation of longtime Police Chief Paul Donovan and prompted an investigation by the New Hampshire Attorney General.
The Portsmouth case seeks the disclosure of records regarding the city-union arbitration decision of Aaron Goodwin, the Portsmouth police officer who developed an influential relationship with a wealthy neighbor Geraldine Webber, and ended up inheriting the bulk of her $2.7 million estate. A probate court later threw out the bequest.
The Keene State College case involves five college students who made Right to Know requests with Keene city government about various topics — infractions of the party-host liability law, excessive police force, rape charges, and health department inspections of restaurants.
Keene officials used the “internal personnel practices” language to refuse the excessive force request. In most of the other requests, the city refused information, saying they did not have any record that listed the requested information.
“They termed the request into a request for a list, which it wasn’t,” Sullivan said.