DerryNews.com, Derry, New Hampshire

June 7, 2012

Right-to-know laws have exceptions

About The Law
Andrew Myers

Right-to-know laws and the federal Freedom of Information Act (also called FOIA) are intended to make government open, giving citizens access to procedures and documents. But, a New Hampshire Supreme Court decision now sheds light on at least one of many exceptions.

The purpose of New Hampshire's right-to-know statute is to ensure both the greatest possible public access to the actions, discussions and records of all public agencies, and gives citizens the right to inspect and copy all public records.

The right of access to government proceedings and records is embedded in the state Constitution, which mandates that access "shall not be unreasonably restricted."

So far, so good.

Enter the owner of a Laconia hotel, ravaged in a fire in September 2010. The state fire marshal's office does an investigation.

Seven months after the fire, when the owner heard nothing, a written request was made for documents surrounding the investigation. There was no response. So, a month later a second request went out. This time, the fire marshal sends the initial incident report, but withholds everything else citing an ongoing investigation.

A key issue raised in the ensuing court action was whether, because the materials were compiled for law enforcement purposes, disclosure could reasonably be expected to interfere with law enforcement proceedings.

The court's analysis started off by explaining that resolving questions regarding the right-to-know law are handled with a view to providing the utmost information.

But, the justices then looked to exceptions to disclosure allowed under the FOIA. One exception is records or information compiled for law enforcement purposes to the extent that the production of such records or information could reasonably be expected to interfere with enforcement proceedings. There are others, but that is the most pertinent here.

In the end, the court decided that the requested records were compiled during an investigation into potential criminal wrongdoing, and that disclosure could interfere with the investigation. A number of reasons were cited. One was that revealing the information now could taint the credibility of witnesses that became aware of other testimony, bringing into question whether what they recall is their own memory, or what they may have heard from others.

The New Hampshire right-to-know law provides for court-awarded attorney fees when court action is necessary in order to make information available. But, that didn't happen in this case and the court awarded no fees in this case.

The case is 38 Endicott Street North LLC v. State Fire Marshal, decided May 22, 2012, by the New Hampshire Supreme Court.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.