New Hampshire Town and City
Legal Q and A: Records Compiled for Enforcement of Statutes, Ordinances and Regulations: To What Extent Are They Exempt from Disclosure?
New Hampshire Town and City, July/August 2012
Although law enforcement records are not included as such in the list of government records exempt from disclosure under the Right to Know Law, RSA 91-A:5, the New Hampshire Supreme Court has long recognized that certain law enforcement records may be withheld from public disclosure in accordance with the exemption for such records in the federal Freedom of Information Act (FOIA). This exemption has been important for police departments, but until now, of little interest to other municipal officials and employees. Recently, however, in the case of 38 Endicott Street North, LLC v. State Fire Marshal, the Court expressly held that the law enforcement records exemption applies more broadly. The case raises many questions as to what municipal records, other than police department investigatory files, may be withheld from public disclosure as “records compiled for law enforcement purposes.” (See this month’s Court Update column for a summary of 38 Endicott Street North, LLC v. State Fire Marshal.)
Q. What has been the rule for non-disclosure of law enforcement records in New Hampshire?
A. The “Murray exemption,” based on the language of FOIA, 5 U.S.C. sec. 552(b)(7), provides that an agency 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....
Murray v. State Police, 154 N.H. 579, 582 (2006). In federal FOIA cases, the rule is known as “Exemption 7.” As with all Right to Know cases, the governmental agency has a heavy burden to justify nondisclosure.
Q. What does the 38 Endicott Street North case say about the application of the Murray exemption to law enforcement records other than police department investigatory files?
A. The Court noted that the Murray exemption can apply to (a) agencies other than police departments, as long as they have at least some law enforcement functions, and (b) civil, as well criminal, law enforcement matters.
Q. Other than police, what municipal officials “compile law enforcement records”?
A. It is not entirely clear at this point. 38 Endicott Street North involved the State Fire Marshal’s Office (FMO), which has a variety of administrative, code enforcement, and investigative duties under RSA 153, including investigation of possible criminal activity. The Court pointed out that it often looks to federal court interpretations of FOIA for guidance and noted that federal courts have applied FOIA Exemption 7 to cases of civil law enforcement. There are dozens of federal court decisions interpreting FOIA Exemption 7, spanning four decades. These are cited and analyzed in a comprehensive legal memorandum, Department of Justice Guide to the Freedom of Information Act, available at www.justice.gov/oip/foia_guide09.htm. More than 150 pages of the memorandum are devoted to all aspects of Exemption 7.
Many federal agencies are cited in the Department of Justice FOIA memorandum in connection with exemption of civil and regulatory law enforcement records. Perhaps the most analogous cases to the civil law enforcement functions that municipalities perform are the Environmental Protection Agency (EPA) cases. In General Elec. Co. v. U. S. E.P.A., 18 F.Supp.2d 138 (D.Mass. 1998), the Court ruled that Exemption 7 would not apply at the stage of agency rule-making but does apply at the stage where enforcement proceedings for civil damages were reasonably anticipated. In Environmental Protection Services, Inc. v. U.S.E.P.A., 364 F.Supp.2d 575 (N.D. W.Va. 2005), the Court ruled that records compiled for an administrative enforcement proceeding could be withheld under Exemption 7.
Like the FMO, many municipal officials combine administrative and enforcement duties. Municipal fire chiefs enforce statutes and regulations regarding fire and other safety hazards under RSA 154. Where authorized, building inspectors enforce the State Building Code under RSA 674:51 and RSA 155-A. Health officers enforce statutes and regulations under RSA 147. Zoning administrative officers enforce zoning ordinances under RSA 676. Boards of selectmen sometimes engage in enforcement activities, such as enforcement of RSA 155-B, relative to hazardous and dilapidated buildings. There are other similar municipal enforcement activities. It would seem that records compiled for purposes of enforcement of these statutes, ordinances and regulations could qualify for exemption from disclosure when appropriate under the criteria of the Murray exemption/Exemption 7.
Q. What guidance do we have in New Hampshire Supreme Court cases for interpreting the Murray exemption?
A. The starting place for understanding the Murray exemption is the Attorney General’s Office Memorandum on New Hampshire’s Right-to-Know Law, updated July 15, 2009, available at http://doj.nh.gov/civil/publications.htm. This is an excellent resource for all Right to Know issues. It deals with the Murray exemption on pages 28-33. As the memo observes, “many of the exemptions for law enforcement investigative records have received limited interpretation by the New Hampshire courts.”
Exemption A: Interference with Law Enforcement Proceedings. The Court has decided two cases under Exemption A, Murray itself and the 38 Endicott Street North case. In Murray the Court cited examples of the sorts of documents whose disclosure “could reasonably be expected to interfere with enforcement proceedings”: “details regarding initial allegations giving rise to th[e] investigation; interviews with witnesses and subjects; investigative reports furnished to the prosecuting attorneys; contacts with prosecutive attorneys regarding allegations, subsequent progress of investigations, and prosecutive opinions….”
In the event of a court challenge, the agency must then explain how disclosure of the information within these categories could interfere with any investigation or enforcement. The agency is required to justify its refusal by describing categories of documents that are “distinct enough to allow meaningful judicial review, yet not so distinct as to reveal the nature and scope of the investigation.” 154 N.H. at 583-84.
In 38 Endicott Street North the Court applied the Murray test for Exemption A. The Fire Marshal provided an affidavit from the investigator, which stated that the investigation is open and ongoing and that the investigator had a reasonable belief that the investigation will lead to criminal charges. The affidavit explained in general terms that disclosure would alert persons of interest who would then cease cooperation and use other witnesses’ statements to cover their tracks and divert attention to others. Disclosure would also taint the credibility of witnesses by bringing into question whether their statements are based on their own recollections or information that has been disclosed to the public. Based on the affidavit, the Court upheld denial of disclosure.
Exemption C: Unwarranted Invasion of Privacy. In two cases seeking disclosure of law enforcement records where no enforcement proceedings were pending or likely, the Court has applied Exemption C, adopting the same test for invasion of privacy as is used for cases under RSA 91-A:5, IV. In Union Leader Corp. v. Nashua, 141 N.H. 473 (1996), after the city prosecutor dropped a drunk driving charge against a family member of a prominent politician, the plaintiff newspaper sought disclosure of the police department’s file. The Supreme Court overturned the trial court’s denial of disclosure and remanded for a new hearing to consider the proper balancing of “the public interest in disclosure of the requested information against the government interest in nondisclosure, and in privacy exemption cases, the individual’s privacy interest in nondisclosure. “The test is whether disclosure will inform the citizenry about the activities of their government: actual motives for seeking disclosure are irrelevant. On the other hand, the Court noted that the public interest “is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” Moreover, suspects, witnesses, and investigators have a strong countervailing privacy interest in avoiding the stigma potentially associated with law enforcement investigations. 141 N.H. at 475-77.
In New Hampshire Civil Liberties Union v. Manchester, 149 N.H. 437 (2003), the plaintiff sought disclosure of photographs of people that police officers had stopped but had not arrested. In resisting disclosure, the City invoked the privacy rights of the individuals depicted in the photographs. The Court held that the individuals’ privacy interests were minimal because the photographs were consensual; were not taken in connection with arrests; did not disclose names, addresses or other personal information; and would be released in a large group. This minor privacy interest was outweighed by the public interest in disclosure of information that might inform the public about how the department operates.
Exemption E: Investigative Techniques and Procedures. In Montenegro v. Dover, 162 N.H. 641 (2011), in connection with the City’s surveillance equipment, the plaintiff requested disclosure of the precise locations, recording capabilities, hours of operation, and retention time of recordings. The Court held that the information could be withheld from disclosure. “This information is 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.” 162 N.H. at 648.
Municipal officials must first decide whether they are engaged in criminal, civil and administrative law enforcement matters, or some combination of them. Then they must be prepared to decide, in a given case, what records are “compiled for law enforcement purposes” and whether the records will be exempt from public disclosure for one or more of the six reasons set forth in the Murray exemption. Officials should keep in mind that the New Hampshire Supreme Court cases and most of the FOIA Exemption 7 cases have involved criminal law enforcement matters. In criminal cases, the interests of all parties can be very strong. Sound judgment will be required in applying these principles to municipal civil and administrative enforcement matters.
Local officials in NHMA-member municipalities may contact LGC’s Legal Services attorneys for more information on this and other topics of interest Monday through Friday, from 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 3408. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.