Am. Civil Liberties Union of New Hampshire & A. v. City of Concord

174 N.H. 653

273 A.3d 895

AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE & a.

v.CITY OF CONCORD

No. 2020-0036

Supreme Court of New Hampshire.

Argued: February 11, 2021

Opinion Issued: December 7, 2021

American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and Henry R. Klementowicz orally), for the plaintiffs.

City Solicitor's Office, of Concord (James W. Kennedy, city solicitor, on the brief and orally), for the defendant.

BASSETT, J.

The plaintiffs, the American Civil Liberties Union of New Hampshire (ACLU) and the Concord Monitor, appeal an order of the Superior Court (Kissinger, J.) ruling that portions of a contract between an equipment vendor and the defendant, the City of Concord, for the purchase of "covert communications equipment" are exempt from disclosure under the Right-to-Know Law. See RSA ch. 91-A (2013 & Supp. 2020). The plaintiffs argue that the City failed to meet its burden of demonstrating that the redacted portions of the contract are exempt from disclosure, and that the trial court erred when it held an ex parte in camera hearing, during which the City presented evidence supporting exemption. We affirm in part, reverse in part, and remand.

The following facts are undisputed or are otherwise supported by the record. On May 10, 2019, the Concord City Manager submitted a proposed 2019-2020 operating budget to the Mayor and the City Council. Included under the proposed police budget was a $5,100 line item for "Covert Communications Equipment." On May 24, the Monitor published a news article titled "Concord's $66.5M budget proposal has its secrets," which discussed the line item. The Monitor reported that one of the City Councilors had asked the City Manager if he could provide a "hint" as to the nature of the equipment, but that the Manager had responded, "I don't know how to answer that question[ ] without ‘answering it.’ " The City Manager did not publicly identify the equipment, saying only that it was not body cameras or a drone. The Monitor reported that the Chief of Police had stated that the City has a non-disclosure agreement with the equipment's vendor that prevents the City from publicizing the nature of the equipment.

Shortly thereafter, the ACLU and the Monitor filed separate Right-to-Know requests with the City. The ACLU requested "[d]ocuments sufficient to identify the specific nature of the ‘covert communications equipment’ sought by the Concord Police Department," and "[a]ny contracts or agreements between the Concord Police Department or the City of Concord and the vendor providing the ‘covert communications equipment.’ " The Monitor similarly requested "documents related to the $5,100 ‘covert communications equipment’ sought by the Concord Police Department," including "any contracts or agreements between the Concord Police Department or the City of Concord and the vendor providing the equipment, documents that detail the nature of the equipment, and the line items associated with the equipment in the department's budget."

The City responded to both requests by disclosing a partially-redacted 29-page, single-spaced "License & Services Agreement" between the City and the equipment vendor. The redactions included the name of the vendor, the state law that governs the agreement, the nature of the equipment, the type of information gathered by the vendor, and how the vendor uses that information. Most pages had fewer than 20 words redacted, and most of the redactions were either one or a few words. Representative of the redactions is the following: "Law enforcement agencies may direct us to collect a wide variety of information from your [redacted] when you use the [redacted] services. The information may include: [multiple clauses redacted]." The disclosed portions of the agreement included the following: (1) the vendor would provide a "Website, Applications, [and] Services"; (2) the City would maintain ownership of "location information" and "other data" generated from its use of the Website, Applications, and Services; (3) the vendor would be indemnified for any losses or damages incurred by the City due to a "suspension" of the Application; and (4) the City agreed to abide by the vendor's "Acceptable Use Policy and Privacy Policy."

In a letter accompanying the redacted agreement, the City explained that the redactions were necessary because the agreement "contains confidential information relative to surveillance technology that is exempt from disclosure under the law enforcement exemption" in Murray v. New Hampshire Division of State Police, 154 N.H. 579, 582, 913 A.2d 737 (2006). In Murray, we observed that the Right-to-Know Law does not explicitly address requests for law enforcement records or information, and we adopted the six-prong test under the federal Freedom of Information Act (FOIA) for evaluating requests for law enforcement records. Murray, 154 N.H. at 582, 913 A.2d 737. Under FOIA, the government 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 ....

5 U.S.C. § 552(b)(7) (2018). We have referred to the six prongs collectively as the Murray exemption. See 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 661, 44 A.3d 571 (2012). In its letters to the plaintiffs, the City quoted Murray and invoked prong (E).

In response, the plaintiffs filed a petition in the superior court seeking disclosure of the redacted portions of the agreement. See RSA 91-A:7 (Supp. 2020). The City responded that the redacted information was exempt from disclosure under Murray, and that it would not disclose "the name of the vendor or any of the information redacted from the documents as such disclosure could reasonably be expected to interfere with pending enforcement proceedings, disclose techniques and procedures for law enforcement investigations, risk circumvention of the law and endanger the life or physical safety of any individual." In effect, the City invoked prongs (A), (E), and (F) of the Murray exemption. See Murray, 154 N.H. at 582, 913 A.2d 737.

Shortly thereafter, the plaintiffs served a request for production of documents, see Super. Ct. R. 24, seeking an unredacted copy of the agreement, as well as other documents and contracts responsive to their Right-to-Know requests. The plaintiffs proposed that the documents be produced "subject to a mutually agreeable protective order." The City filed a motion to quash, arguing that a "petitioner cannot be allowed to circumvent the Right-to-Know Law exemptions simply by filing a Right-to-Know lawsuit and obtaining exempted materials through discovery." The City reiterated its position that the redacted information was "not subject to disclosure under [prongs] A, E and F," and submitted a two-page affidavit from the Chief of Police in which he stated that disclosure of the information could reasonably be expected to interfere with pending investigations, risk circumvention of the law, and endanger the life or physical safety of officers. See Murray, 154 N.H. at 582, 913 A.2d 737. With the plaintiffs' assent, the City also submitted an unredacted copy of the agreement to the trial court for in camera review. In addition, the City filed a motion for an ex parte in camera hearing, offering to make a police department representative available to answer the court's questions regarding the redactions. The plaintiffs objected.

In October 2019, the court held a 45-minute hearing on the pending motions. During the hearing, the court characterized the Chief's affidavit as "conclusory." In a subsequent written order, the court ruled that the City had failed to demonstrate that the redacted information was exempt from disclosure but that the court needed additional information before reaching a final decision. It therefore granted the City's motion for an ex parte in camera hearing. Neither the plaintiffs, nor their counsel, were permitted to attend.

At the ex parte in camera hearing, the Chief of Police testified as to the nature of the equipment and how it is used by the department. He explained how disclosing the name of the vendor and the nature of the equipment would undermine law enforcement investigations, risk circumvention of the law, and endanger lives. Although the transcript of the hearing is part of the record on appeal, the plaintiffs have never had access to the transcript. The trial court ruled that the redacted portions of the agreement are exempt from disclosure under prongs (A), (E), and (F) of the Murray exemption. This appeal followed.

On appeal, the plaintiffs argue that the trial court erred when it ruled that the redacted information is exempt from disclosure under prongs (A), (E), and (F), and also erred when it conducted the ex parte in camer...