‘It was wrong then and it’s wrong now’: Lawyers argue over high court ruling on public records

Monitor staff
Published: 11/20/2019 6:43:14 PM

The case of a Dover police lieutenant who made harassing phone calls three decades ago has led to a broad restriction on the public’s ability to review government employee wrongdoing, several lawyers argued at the state Supreme Court on Wednesday.

William Fenniman Jr. was the police chief in Dover back in the early 1990s when the Union Leader Corporation wanted access to an internal investigation into the lieutenant accused of making the calls.

After the investigation was completed, Fenniman gave the newspaper the name of the officer, as well as the results of the investigation that found that the lieutenant made the calls, but did so without an intent to harass. However, the officer had been dishonest during the investigation and was reprimanded without pay for six pay periods.

Yet, Fenniman refused to give the Union Leader memoranda and other records compiled during the investigation. The case eventually went to the state Supreme Court, which sided with the city of Dover in 1993, saying the additional records constituted “private personnel practices,” which were categorically exempt from the right-to-know law.

Twenty-six years later, Gilles Bissonnette of the American Civil Liberties Union of New Hampshire said this narrow ruling is now being used to wrongly shield legitimate information pertaining to government employees from the public eye, and used the Concord School District’s investigation of Howie Leung as an example.

“We believe that this position is deeply harmful to government accountability and is inconsistent with Chapter 91-A’s presumption in favor of disclosure,” Bissonnette said. “It’s crystallized to me when I think about the examples of documents that would be categorically excluded under Fenniman. Number one, an internal report documenting a school district’s potential failures in investigating sexual misconduct against students by a teacher.”

Bissonnette was joined by attorneys Rick Gagliuso, who represented Seacoast Newspapers Inc.; and Gregory Sullivan, who represented the Union Leader in cases challenging the court’s Fenniman ruling.

“It’s just wrong,” Gagliuso said.

“It was wrong then and it’s wrong now,” Sullivan said.

All three attorneys said personnel records should not be automatically exempt from 91-A, but should undergo a balancing test of whether the public’s interest outweighs employees’ privacy concerns.

Although the oral arguments heard Wednesday at the Supreme Court by the four justices did not concern the Concord School District, Concord School Board President Jennifer Patterson sat in the gallery during the proceedings.

The three cases before the court Wednesday included two instances of police records and a series of right-to-know requests filed by college students denied by the city of Keene.

The Portsmouth Herald took the city to court for access to a mediator’s report related to the dismissal of police Officer Aaron Goodwin, who was named the beneficiary of an elderly woman’s $2 million estate. The city of Portsmouth agreed to the release of the report, but the police union argued it was exempt, citing the Fenniman case.

The Union Leader is seeking unredacted copies of an investigation into the Salem Police Department’s handling of internal affairs investigations, citizen complaints and retention of internal investigations records. They have received a copy of the report with the names of employees who have been the subjects of the disciplinary process redacted.

In both of those cases, the newspapers have received some, but not all public records.

However, in Concord, board-hired attorney Stephen Bennett has argued that an entire 100-plus page report should be kept from the public eye because it could be considered an internal personnel practice.

Bennett is the former city attorney for the city of Nashua.

Municipal lawyers argued that the Supreme Court got it right with Fenniman, and that overturning that ruling would place a burden on municipalities to peruse through all different kinds of records and decide what can be shared publicly.

City of Portsmouth attorney Tom Closson said that it would create a “dangerous slippery slope” that would likely lead to more time spent in the courts.

“We would litigate about the relative privacy interests in sort of run of the mill arbitration or grievance process,” he said. “If an employee were given a letter of reprimand for being late, and the newspaper asked for all disciplinary actions, would we be litigating over whether that was something that should be produced?”

“I don’t know that it’s fair to put that responsibility on municipalities in the first instance,” he continued.

Closson and Peter Perroni, a lawyer for the Portsmouth police union, argued the issue was moot because the legislature could have clarified the law, but hasn’t.

“The illusion we have to precede under to walk away from (Fenniman) is to say the legislature, in all its wisdom and in the face of the nine amendments, just missed this and doesn’t know,” Perroni said.

He cited House Bill 153, which would make police disciplinary records where a “final adjudication” of matters such as sexual assault, dishonesty, discharge of a firearm leading to death or injury, perjury or falsification of evidence public under RSA 91-A.

“This strikes me as a case that has not sat in some corner of the capital. It’s an issue that is clearly consistently before the legislature,” Perroni said.

Gagliuso targeted the final word in the phrase “internal personnel practices,” which he said is overly broad and is now being used to cloak all kinds of public records in secrecy.

“The notion that public employees and public officials have a privacy interest in the way they conduct their work, in the way they perform their duties, I think is nonsensical, and I think it needs to be done away with,” Gagliuso said. “That distinction has been lost in New Hampshire at least since 1993 when this court decided Union Leader v. Fenniman. As a consequence, the citizens of N.H., who hire and compensate public employees to conduct their business, have generally been deprived of knowing how their employees are performing.”

“This is an error that the court made in 1983, and has continued since that time,” Gagliuso continued. “The court needs to correct it.”

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