Stone v. City of Claremont

319 A.3d 1274

2024 N.H. 11

Jonathan STONE

v.CITY OF CLAREMONT

Case No. 2023-0083

Supreme Court of New Hampshire.

Argued: November 14, 2023

Opinion Issued: March 20, 2024

Sullivan

Decato Law Office, of Lebanon (R. Peter Decato on the brief and orally), for the plaintiff.

Drummond Woodsum & MacMahon, of Manchester (Shawn M. Tanguay on the memorandum of law), for the defendant.

American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and Gilles R. Bissonnette orally), and Malloy & Sullivan, Lawyers Professional Corporation, of Hingham, Massachusetts (Gregory V. Sullivan on the brief), for the intervenors.

DONOVAN, J.

[¶1] In June 2020, the defendant, the City of Claremont, received a request under RSA chapter 91-A for the disclosure of governmental records related to the plaintiff, Jonathan Stone. The plaintiff appeals a decision from the Superior Court (Honigberg, J.) denying his petition for injunctive relief and ordering the City to disclose thirteen internal affairs investigation reports (IA Reports) and four sets of correspondence between the New Hampshire Police Standards and Training Council (PSTC) and the City. The plaintiff argues that: (1) the City violated a 2007 Stipulated Award when the City Manager sent a letter to a New Hampshire journalist responding to the journalist’s request for certain government records; (2) the City Manager’s letter incorrectly indicated the number of sustained reports that the City located pertaining to the plaintiff; (3) the City violated the Stipulated Award when it did not destroy certain IA Reports; and (4) some of the requested IA Reports should not be released because they did not result in any findings or conclusions.

[¶2] The City argues that "[t]he majority of [the plaintiff's] case must fail" because: (1) the Stipulated Award does not protect the requested records from disclosure; and (2) all but two of the requested IA Reports are subject to public disclosure pursuant to the balancing test set forth in Union Leader Corp. v. Town of Salem, 173 N.H. 345, 239 A.3d 961 (2020). See RSA 91-A:5, IV (2023). The City, however, disagrees with the trial court’s ruling that IA Reports Nos. 13 and 14 should be disclosed and instead argues that these two reports should not be publicly disclosed because the plaintiff's privacy interests outweigh the public’s interest in these two governmental records. The intervenors, American Civil Liberties Union of New Hampshire and Union Leader Corporation, argue that: (1) the Stipulated Award does not prevent disclosure of the requested records; (2) the plaintiff waived any argument that any of the exemptions set forth in RSA chapter 91-A (2023 & Supp. 2023) apply; (3) if the plaintiff did not waive such argument, he lacks standing to challenge the disclosure of documents under RSA chapter 91-A; and (4) if the plaintiff has standing to challenge such disclosure, the records are not exempt from disclosure under RSA 91-A:5, IV.

[¶3] We conclude that: (1) the 2007 Stipulated Award does not prohibit disclosure of the requested records; and (2) the plaintiff waived any argument that the records would otherwise be exempt from disclosure under RSA 91-A:5, IV. Accordingly, we affirm.

I. Facts

[¶4] The following facts are agreed upon by the parties or otherwise taken from documents in the record. The plaintiff is a former police officer with the Claremont Police Department (CPD) and a current public official. In June 2007, the plaintiff, through his union, entered into a Stipulated Award with the City that resolved four grievances that the plaintiff filed in response to several IA Reports. As part of the Stipulated Award, the City agreed to "purge [the plaintiff's] personnel file of all reference to the one-day suspension of March 8, 2006, the March 27, 2006 notice of termination, and all events leading up to them." The parties agreed not to report the disposition of the matter to the newspaper or any other media outlet and, if contacted by the media, to make no com- merit. The Award also contained a confidentiality provision in which the parties agreed "to keep the existence, terms, and substance of this Award confidential … except to the extent required by an order of some other agency, court of competent jurisdiction, or by law." The Stipulated Award resulted in the plaintiff's negotiated resignation from the CPD.

[¶5] In June 2020, a journalist sought the disclosure of governmental records related to the plaintiff under New Hampshire’s Right-to-Know Law. See RSA ch. 91-A. The journalist requested: (1) copies of any internal investigative reports into the conduct of the plaintiff as a CPD officer; (2) copies of any written communications to the plaintiff from the Claremont Police administration regarding his termination; (3) copies of any documents or statements sent to the PSTC regarding the plaintiff's "moral turpitude"; and (4) copies of any statements that the CPD received from the PSTC regarding the plaintiff.

[¶6] The following month, the City filed a Complaint in Equity for Declaratory Judgment and named the plaintiff and the journalist as co-respondents. In its complaint, the City explained that following the journalist’s request, it analyzed the potential public disclosure of the requested documents pursuant to the balancing test set forth in Town of Salem, 173 N.H. 345, 239 A.3d 961. See RSA 91-A:5, IV. The City averred that under this standard, the requested disclosure implicated both the plaintiff's significant privacy interest, as well as a substantial public interest, and it acknowledged that the plaintiff would likely object to the disclosure of these documents based upon his privacy interest. The City sought the court’s guidance as to which governmental records are subject to public disclosure.

[¶7] In August, the Superior Court (Tucker, J.) dismissed the City’s complaint without prejudice. The court ordered the City to act upon the journalist’s request pursuant to RSA 91-A:4, IV(a)-(c) (2023) and explained that:

if the City determines a record does not fall within a recognized exemption and should be released, it may notify counsel for the [plaintiff] prior to disclosing it to the requesting party, in order to give the [plaintiff] a brief period of time to decide whether to seek an injunction.

Later that month, the City Manager sent the letter to the journalist responding to his governmental records request.

[¶8] In September, the plaintiff commenced the instant case by petitioning for injunctive relief. Specifically, the plaintiff asked the court to enter an injunction preventing the City from disclosing any of the requested records, arguing that an injunction was necessary given the terms of the Stipulated Award. He argued that, due to his current role as a Claremont City Councilor and his candidacy for a seat in the New Hampshire Legislature, public disclosure of the records would cause him to suffer irreparable harm. In October, the intervenors sent separate Right-to-Know requests to the CPD seeking disclosure of certain governmental records relating to the plaintiff. Following these requests, the intervenors filed a Joint Statement of Interest in the plaintiff's case and moved to intervene. The intervenors argued that the requested records should be disclosed because the public interest in disclosure outweighs any privacy interest in nondisclosure, and the Stipulated Award "has no impact on the Right-to-Know Law analysis." See Prof'] Firefighters of N.H. v. Local Gov’t Ctr., 159 N.H. 699, 707, 992 A.2d 582 (2010) (explaining the balancing test used to determine whether disclosure of public records constitutes an invasion of privacy under RSA 91-A:5, IV); see also RSA 91-A:5, IV. The superior court subsequently granted the motion to intervene.

[¶9] The Superior Court (Tucker, J.) issued an order in December 2021 denying the plaintiff's request for a preliminary injunction. The court concluded that enforcement of the confidentiality provision in the 2007 Stipulated Award would run counter to public policy reflected in RSA chapter 91-A, but it left open the question of whether any of the records were exempt from disclosure pursuant to RSA 91-A:5, IV. The court also granted the intervenors access to the records responsive to the pending Right-to-Know request as well as unredacted versions of sealed pleadings, subject to a protective order.

[¶10] In June 2022, the City produced responsive records to the superior court (under seal) and the parties (under protective order) so that the intervenors and the court could better understand the records in dispute and the applicability of RSA 91-A:5, IV. Specifically, the City produced both clean and redacted versions of fifteen IA Reports and four sets of correspondence between the PSTC and the Chief of Police for the CPD. The City proposed that IA Reports Nos. 1 through 10 and 10A and the four sets of PSTC correspondence be released with little or no redactions, which the intervenors accepted. The City, however, argued against disclosing IA Reports Nos. 11 through 14. In response, the intervenors withdrew without prejudice their request for IA Reports Nos. 11 and 12, but they continued to argue for the release of IA Reports Nos. 13 and 14. Other than the fourth set of PSTC correspondence that the plaintiff agreed could be disclosed, the plaintiff maintained that all of the documents that the City produced should be withheld.

[¶11] In October 2022, the Superior Court (Honigberg, J.) denied the plaintiff's motion for an injunction and ordered the disclosure of the thirteen IA Reports and the four sets of PSTC correspondence. The trial court determined that the confidentiality provision, as well as the purging provision, of the Stipulated Award are unenforceable because they are contrary to the public policy reflected by RSA chapter 91-A. The trial court then considered whether the records were nevertheless exempt from...