Why Investigations Of Public Employees Are Kept Private In N.H.

Oct 25, 2019

Parents in Concord are demanding the school district release the results of an investigation into how it handled complaints of a former high school teacher who was arrested on charges of sexually assaulting a student.

But the school board says that report can’t be made public. That’s because investigations into misconduct of public employees are exempt under New Hampshire’s public records law.

NHPR's Morning Edition Host Rick Ganley spoke with Keene Sentinel reporter Paul Cuno-Booth who's been looking into why these investigations are kept private.

 

(Below is a transcript from the NHPR interview. It's been edited lightly for clarity.)

Paul, why can't Concord parents get the results of this investigation? A teacher is a public employee paid with taxpayer dollars after all.

So the thing to know is there's actually two separate exemptions related to personnel documents under New Hampshire's Right to Know Law. This is the law that gives the public the right to access government documents. So personnel files that are deemed to be an invasion of privacy if they're released, those can be disclosed in some circumstances, assuming the public interest outweighs the privacy interest.

But when it comes to internal investigations, we're actually talking about a separate exemption called records pertaining to personnel practices. There's a 26-year-old New Hampshire Supreme Court case that says this exemption covers internal investigations and it's categorically exempt. So no matter how great the public interest in the material, the government has a right to withhold it.

So what is the rationale, though, behind classifying any of these investigations as records relating to personal practices?

That's a good question. So it goes back to this 1993 court case called Union Leader v. Fenniman. And in that case the Supreme Court said, you know, an investigation is basically a step leading up to potentially disciplining an employee and that's a "quintessential example of an internal personnel practice."

I'm wondering about public perception here, Paul, because I imagine that the public in general might think, well, you know, sure, these things are private records. But as journalists, we often need to look into these cases and the law actually says that there is a right to know about public employees. So I'm wondering about that perception.

The New Hampshire Municipal Association actually told me this in the reporting I was doing that [there's] this kind of guarantee of confidentiality. It may encourage employees to come forward and report bad behavior. If there's a chance this report gets out, then maybe those employees could be subject to retaliation or embarrassment. That's what the Municipal Association and others have said.

You talk about the fact that municipalities often, you know, error on the side of caution and say, look, we're not release any information. We just don't want to be liable.

Yeah. And again, this is something the New Hampshire Municipal Association told me that, you know, they said public officials, they do want to do the right thing. They want to release information when they can. But part of the problem is if you release something you're not supposed to release, maybe that person who's named in that report sues you for invasion of privacy. If you withhold something you're not supposed to withhold, maybe the newspaper or the requester sues you to try and get access.

So the way he said it is public employees are really in a vise where they're trying to navigate these two things. That's another argument they cite for keeping this status quo in place. They say, you know, if these things aren't categorically exempt and town employees have to do this complicated balancing test in every case, that's really going to be a burden.

So they make that argument. I'm thinking that federal records laws are quite different, aren't they?

That's right. And this comes up in a couple pending lawsuits before the [New Hampshire Supreme Court] actually. According to these lawsuits, the federal Freedom of Information Act has two very similar exemptions, personnel practices on the one hand and personnel files on the other. And under the federal FOIA, the way FOIA has been interpreted, neither of those categories is categorically exempt. Additionally, practices in the federal jurisprudence refers to things like procedures and rules, you know, how a public agency handles employee parking or something like that, not information that's specific to an individual employee. That would be personnel files under FOIA.

As a journalist, how does this make your job more difficult?

So my colleagues and I, when we're reporting on school districts, towns know, whatever government entity, we often run into this issue where we request a document, we request some information, and we're told, oh, well, that's personnel.

It was only recently, actually, that I learned there are these two separate personnel exemptions and that one is categorical. Part of the problem raised in some of these lawsuits is that when there seems to be some overlap between the two distinctions, government officials can choose which one. They can choose the more restrictive one and sort of withhold something without giving us any avenue to argue that it should be public.