Laurie A. Ortolano v. City of Nashua

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0342, Laurie A. Ortolano v. City of
Nashua, the court on April 2, 2025, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The
defendant, the City of Nashua, appeals two orders in which the Superior Court
(Temple, J.) concluded that the defendant violated RSA chapter 91-A (2023),
New Hampshire’s Right-to-Know Law, and ordered it to disclose certain records
to the plaintiff, Laurie A. Ortolano, and to pay a portion of her attorney’s fees
and costs. On appeal, the defendant challenges the merits of the trial court’s
ruling only to the extent that it requires disclosure of recordings or transcripts
of police interviews. The defendant also challenges the trial court’s award of
attorney’s fees. We conclude that the trial court erred when it ruled that the
recordings or transcripts must be disclosed, and remand for further fact
finding. We further conclude that the trial court erred when it awarded
attorney’s fees. Accordingly, we reverse in part, vacate in part, and remand for
further proceedings consistent with this order.

The trial court found the following facts. In 2018, the defendant’s
Assessing Department (the Department) began conducting a semi-annual
reevaluation of property values. The plaintiff sought disclosure of numerous
documents pursuant to RSA chapter 91-A related to that work, including
certain field data collection cards. On August 7, 2019, the plaintiff visited the
Department’s office to inspect certain documents, and she later requested the
August 7, 2019 security surveillance footage from the Department’s office
pursuant to RSA chapter 91-A.

In 2019, the plaintiff provided information to the Nashua Police
Department regarding potential misconduct of a Department employee, and it
investigated the matter. Several Department employees were interviewed
during that investigation. The plaintiff sought disclosure of audio and video
recordings and transcripts of those police interviews pursuant to RSA chapter
91-A. The defendant disclosed written summaries of the police interviews,
while refusing to disclose the field data collection cards, the August 7, 2019
security surveillance footage, and the audio and video recordings or transcripts
of the police interviews (collectively, the records on appeal).

The plaintiff filed suit, alleging that the defendant had violated RSA
chapter 91-A by failing to disclose certain records, including the records on
appeal. The defendant responded that the security surveillance footage and
police interview recordings and transcripts were exempt from disclosure
because disclosure would invade the privacy of the persons recorded in the
footage and transcripts, RSA 91-A:5, IV (2023) (records are exempt from
disclosure if disclosure “would constitute [an] invasion of privacy”), and that
the field data collection cards were exempt as preliminary drafts, RSA 91-A:5,
IX (“[p]reliminary drafts” are exempt from disclosure). After the trial court
reviewed the security surveillance footage — but not the police interview
recordings or transcripts — in camera, it ruled that the privacy interests in the
security surveillance footage and in the police interview recordings and
transcripts were insufficient to outweigh the public interest in disclosure. The
court further ruled that the field data collection cards did not fall into the
preliminary draft exception. Accordingly, the trial court ruled that the items
must be disclosed pursuant to RSA chapter 91-A, and specifically ruled that
“[t]he City must provide the footage [of the police interviews and,] [i]f the
footage is not reasonably available, the City must provide the transcripts.” The
trial court also ordered the defendant to pay the plaintiff’s attorney’s fees and
costs incurred while seeking disclosure of the records on appeal, concluding
that the plaintiff’s lawsuit was necessary to enforce compliance with RSA
chapter 91-A and that the defendant “knew or should have known” that its
conduct violated RSA chapter 91-A. The defendant moved for reconsideration.
The trial court denied the motion. This appeal followed.

On appeal, the defendant challenges the trial court’s merits ruling only
as to the ordered disclosure of the audio and video recordings and transcripts
of the police interviews. The defendant argues that the trial court erred in
concluding that the witnesses’ and the defendant’s privacy interests in the
recordings and transcripts are insufficient to outweigh the public interest in
disclosure. The plaintiff argues that the trial court correctly balanced the
interests. In addition, after oral argument, the plaintiff filed a notice
maintaining that certain merits of this appeal may be moot or, alternatively,
that the defendant waived its privacy interests.

We first address the plaintiff’s arguments that the merits of this appeal
may be moot or waived. The plaintiff argues that the defendant’s privacy
arguments are waived because some of the personally identifying information
of the witnesses was released in the summaries and in police reports. The
plaintiff also filed a notice after submission of this case informing us that
transcripts of all eleven of the police interviews, and audio or video recordings
of five of them, had been disclosed to the plaintiff during discovery in a federal
court action. The plaintiff argues that if the defendant had a privacy interest in
the interviews, it waived that interest by producing those records to the
plaintiff. Accordingly, the plaintiff maintains that the defendant’s privacy
arguments may be moot or waived. We disagree.

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 Generally, a matter is moot “when it no longer presents a justiciable
controversy because issues involved have become academic or dead.” Appeal of
Hinsdale Fed. of Teachers, 133 N.H. 272, 276 (1990) (citations omitted).
“Usually, unless a pressing public interest is involved, or the question is
‘capable of repetition yet evading review,’ an issue that has already been
resolved is not entitled to judicial intervention.” Id. (citations and quotations
omitted). Here, according to the plaintiff’s notice, six of the recordings that the
trial court ordered the defendant to disclose to the plaintiff have not been
disclosed. Accordingly, there remains a live controversy, and the dispute is not
moot.

Next, the defendant’s privacy arguments are not waived either by the
limited disclosure of some of the recordings or transcripts of the police
interviews in the federal action or by the defendant’s disclosure of some of the
personally identifying information of the witnesses in the summaries and police
reports. The defendant argues that disclosure of the recordings and
transcripts would invade the witnesses’ privacy. Federal courts interpreting
the Freedom of Information Act (FOIA) have recognized that when the
exemption asserted is that disclosure could invade an individual’s privacy
interests, those privacy interests can be waived only by the individual. See,
e.g., Sherman v. U.S. Dept. of Army, 244 F.3d 357, 362-64 & n.12 (5th Cir.
2001) (“only the individual whose informational privacy interests are protected
by exemption 6 [of FOIA] can effect a waiver of those privacy interests” and
collecting case law holding same for exemption 7(C) (citations omitted)); cf. N.H.
Right to Life v. Dir., N.H. Charitable Trust Unit, 169 N.H. 95, 103 (2016)
(explaining that we may look to federal courts’ interpretation of FOIA for
guidance when interpreting RSA chapter 91-A). Here, the witnesses involved
have not waived their privacy interests, and the defendant’s limited disclosure
of the recordings and transcripts or some of the information in those records
does not waive the privacy interests of the witnesses. Accordingly, we must
reach the merits.

We defer to the trial court’s findings of fact unless they are unsupported
by the evidence or erroneous as a matter of law. See Brown v. Grafton Cnty.
Dep’t of Corr., 177 N.H. ___, ___ (2025), 2025 N.H. 2, ¶8. We review the
interpretation of the Right-to-Know Law and its application to facts de novo.
Id.

RSA 91-A:4, I (2023) provides that “[e]very citizen . . . has the right to
inspect all governmental records . . . except as otherwise prohibited by statute
or RSA 91-A:5.” RSA 91-A:5, IV establishes an exemption from disclosure for
records “whose disclosure would constitute invasion of privacy.” To best
effectuate the statutory and constitutional objectives of facilitating public
access to documents, we construe the exemptions narrowly. Id. at ___, 2025
N.H. 2, ¶9. When a public entity seeks to avoid disclosure of material under

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the Right-to-Know Law, that entity bears a heavy burden to shift the balance
toward nondisclosure. Id.

Courts must engage in a three-step analysis when considering whether
disclosure of public records constitutes an invasion of privacy under RSA 91-
A:5, IV. Id. at ___, 2025 N.H. 2, ¶10. First, the court evaluates whether a
privacy interest exists that would be invaded by disclosure. Id. at ___, 2025
N.H. 2, ¶11. If no privacy interest is at stake, then the Right-to-Know Law
mandates disclosure. Id. Second, the court assesses the public interest in
disclosure. Id. Third, the court balances the public interest in disclosure
against the government’s interest in nondisclosure and the individual’s interest
in nondisclosure. Id. Even information with a legitimate privacy interest is
subject to disclosure if, on balance, that interest is outweighed by the public’s
cognizable interest in disclosure. Id. Accordingly, a fact-specific inquiry is
required in each case. Id.

The plaintiff argues that the recordings or transcripts must be disclosed
because the defendant failed to meet its burden of proving a privacy interest in
the records sufficient to outweigh the public interest in disclosure. The trial
court found, and the plaintiff acknowledges, that “persons interviewed during
police investigations do possess a privacy interest,” and that the “trial court
should consider whether disclosing information such as police witness
interviews might subject an interviewee to embarrassment or reputational
harm.” See, e.g., Reid v. N.H. Attorney Gen., 169 N.H. 509, 529-31 (2016)
(explaining that witnesses in police investigations can have privacy interests in
personally identifying and substantive information from interviews and that “a
fact-specific inquiry is required in each case”).

Here, although a privacy interest exists, the record is insufficient for us
to assess the weight of that interest. The parties agree that the trial court did
not review the recordings or transcripts in camera, and the record does not
reflect whether those records contain substantive information beyond that
provided in the summaries or whether they contain private information beyond
that disclosed in the summaries. “Without a more detailed record, the trial
court lacked sufficient information to conduct the fact-specific analysis
necessary to determine whether the footage implicates a privacy interest by
depicting [interviewee] faces, containing other personally identifying
characteristics, or otherwise subjecting individuals depicted to embarrassment
or reputational harm.” Brown, 177 N.H. at ___, 2025 N.H. 2, ¶¶12-13
(observing that courts generally look to the content of the disputed records to
determine whether release would implicate privacy interests or subject
individuals to harm). Accordingly, we reverse the trial court’s order insofar as
it requires disclosure of the recordings or transcripts, and remand for the trial
court to conduct an in camera review of those records and to apply the fact-

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specific privacy balancing test.1 See N.H. Right to Life, 169 N.H. at 101, 110-
11, 113-14 (applying privacy balancing test, concluding that individuals
depicted in recorded security footage have a privacy interest in withheld
recordings, and remanding for “further fact-finding” because the record was
insufficient to determine the extent of the privacy interests).

The plaintiff additionally argues that the recordings must be disclosed
because the summaries and transcripts of the interviews may be inaccurate.
We need not decide whether the plaintiff’s arguments regarding the accuracy of
the summaries and transcripts provide a sufficient basis to require disclosure
of some or all of the recordings because we are remanding for the trial court to
review the recordings and transcripts in camera. On remand, the trial court
will have the opportunity to ascertain the thoroughness and accuracy of the
summaries and transcripts, and to apply the privacy balancing test to the
recordings and transcripts. See In the Matter of Gordon and Gordon, 147 N.H.
693, 699-700 (2002) (declining to address party’s arguments because we
remanded for further findings).

Finally, the defendant argues that the trial court erred when it ordered
that the defendant pay the attorney’s fees incurred by the plaintiff in seeking
disclosure of the records on appeal. In Right-to-Know Law cases, if a public
body “violates any provisions of [RSA chapter 91-A]” and the trial court finds
“that [the] lawsuit was necessary in order to enforce compliance with [its]
provisions,” the public body shall be liable for reasonable attorney’s fees and
costs incurred in that lawsuit. RSA 91-A:8, I (2023). “Fees shall not be
awarded unless the court finds that the public body . . . knew or should have
known that the conduct engaged in was in violation of [RSA chapter 91-A].” Id.

We conclude that the trial court erred when, on this record, it awarded
attorney’s fees. The trial court found that “the City knew or should have
known its actions . . . violated RSA 91-A” and that “[t]he determinations [that]
the City did not have to provide these records were unreasonable.” Because we
have determined that individuals have “at least some privacy interest” in
recordings of their daily activities, N.H. Right to Life, 169 N.H. at 112-14, and
given that the trial court reviewed the security surveillance footage and
determined that the privacy interests of employees and customers were
implicated, we cannot conclude that the defendant knew or should have known
that RSA chapter 91-A required disclosure of the security surveillance footage.
See WMUR Channel Nine v. N.H. Dep’t of Fish & Game, 154 N.H. 46, 51 (2006)
(declining to conclude that defendant “should have known” its conduct violated
RSA chapter 91-A based on “the state of the case law”).

1 We observe that the plaintiff’s counsel agreed during oral argument that, given the privacy

interests at stake, remanding for the trial court to review the recordings and transcripts in camera
to determine if the privacy interests in the records outweigh the public interest in disclosure
would be a “perfect solution” in this case.

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 In regard to the field data collection cards, we note that we have never
had occasion to address whether these records come within the preliminary
draft exception relied upon by the defendant at trial. The plaintiff does not cite
any case that supports her position that the field data collection cards do not
fall into the preliminary draft exception. Further, the trial court’s order
identified only one extra-jurisdictional case addressing a similar question.
Accordingly, we conclude that the plaintiff has failed to establish that the
defendant knew or should have known that RSA chapter 91-A required
disclosure of the field data collection cards. See Ettinger v. Town of Madison
Planning Bd., 162 N.H. 785, 787, 792 (2011) (“[W]e have had no occasion,
before today, to answer the particular question presented by the [defendant’s]
actions . . . [and] [w]e cannot say that, lacking guidance from this court on the
narrow issue before it, the [defendant] should have known that its [conduct]
violated the Right-to-Know Law.”). We therefore reverse the trial court’s award
of attorney’s fees with respect to the security surveillance footage and the field
data collection cards.

Finally, in regard to the police interview recordings and transcripts, we
have held that police interviews can implicate privacy interest. See Reid, 169
N.H. at 529-31. However, because the trial court has not reviewed the police
interview recordings and transcripts, it is premature to conclude whether and
to what extent they implicate privacy interests. Accordingly, we vacate the fees
award with respect to those records and remand for the trial court to review
them in the first instance. Only after that review can the trial court determine
whether the defendant knew or should have known that the footage and
transcripts were required to be disclosed pursuant to RSA chapter 91-A.

In sum, we reverse the trial court’s order with respect to its ruling that
the defendant must disclose the recordings or transcripts of the police
interviews, and we remand for the trial court to conduct an in camera review of
those recordings and transcripts and to apply the privacy balancing test. We
conclude that the court erred when it awarded attorney’s fees.

Reversed in part; vacated in
part; and remanded.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred; HANTZ MARCONI, J., sat for oral argument but did not participate
in the final vote.

Timothy A. Gudas,
Clerk

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