In 1993, the New Hampshire Supreme Court ruled that public employee personnel records, including disciplinary records, are exempt from disclosure under the state’s Right to Know law.
More than 25 years later, that decision, known as Union Leader v. Fenniman, is back under the microscope.
On Wednesday, the court’s justices heard arguments in three separate cases that each touch on whether Fenniman was correctly decided, or if the current justices should overturn the ruling.
The first case argued Wednesday involves whether an arbitrator’s report on the firing of a Portsmouth police officer who had an improper relationship with an elderly woman with dementia should be disclosed. While many of the details of Sgt. Aaron Goodwin’s actions are already public, the Portsmouth Herald filed a Right to Know request for the report in part because it may reveal any payments made to Goodwin by the city upon his termination.
During oral arguments, Justice James Bassett posed a simple question to the attorneys: “Doesn’t the public have an interest in knowing how police officers behave and if they behave improperly, or illegally, isn’t it crucially important that the public know that?”
The union representing the police officer countered it doesn’t. Peter Perroni with the New England Police Benevolent Association said the Fenniman decision and its resulting protections for internal personnel practices was correctly decided, and that if lawmakers thought otherwise, it is on the legislature to re-write the Right to Know statute, not the courts.
“Those policy interests are being weighed,” said Perroni. “The stakeholders are there weighing those interests, and the public elects a Legislature to make those policy decisions.”
But lawyers for the Seacoast Newspaper Group and the Union Leader contend the Fenniman opinion was wrong then, and is wrong now.
They argued on Wednesday that instead of a blanket prohibition, these public records, including disciplinary records, should face a simple balancing test: Would disclosure be in the public’s interest, or would any resulting invasion of the employee’s privacy outweigh that interest?
Justice Anna Barbara Hantz Marconi posed her own skeptical-sounding question: Would overturning Fenniman create a slippery slope where even mundane disciplinary actions, such as a complaint about the town building inspector being rude to a resident, also need to be disclosed?
“So we are going to be talking about every municipal employee, every act of discipline, from now til the end of time in every community?” she asked.
To attorney Gregory Sullivan with the Union Leader, the answer is clear: The public has a right to know.
“The public’s right to know what the government is up to is not a slippery slope. It is what this country and this state is all about,” he said.
The second case before the court involves an audit into the Salem Police Department. A version of that audit was released to the public and made available on the town’s website, but the names of officers and any identifying information was redacted.
The town’s attorney, Barton Mayor, argued the redactions were appropriate under Fenniman and that even without the names, the residents are still able to obtain a clear picture of how their local government functions, which is the end goal of the Right to Know statute.
“One does not learn about the operations of government by securing the names of employees who have been involved in disciplinary matters,” Mayor told the court. “It doesn’t interfere with our ability to understand government.”
The ACLU of New Hampshire, however, says without naming the officers, there can be no real accountability. It’s pushing for the release of an unredacted version.
“The government is made of individuals. Those individuals are paid by us. Sometimes they engage in misconduct, and when that happens, I think the public has a right to know who,” argued Gilles Bissonette, attorney for the ACLU.
The third case before the court involves journalism students at Keene State University. As part of an assignment, they filed a range of Right to Know requests with the city, including for police brutality reports, restaurant inspections, and underage drinking citations.
Keene city officials, though, pushed back on the nature of the requests and how they were worded.
City Attorney Thomas Mullins summed up the day’s arguments on the Right to Know law by acknowleding that “this is a very difficult statute...and all the municipal attorneys in this room will understand that it is a very difficult thing to parse through.”
The four Supreme Court justices now have the difficult work of deciding what’s public and what’s not, and whether the 1993 Fenniman decision should still hold. Opinions in all three cases are expected in three to six months.