Stone v. City of Claremont

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Sullivan
Case No. 2023-0083
Citation: Stone v. City of Claremont, 2024 N.H. 11

JONATHAN STONE

v.

CITY OF CLAREMONT

Argued: November 14, 2023
Opinion Issued: March 20, 2024

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 (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

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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 comment. 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. 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.

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 [¶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’l Firefighters of
N.H. v. Local Gov’t Ctr., 159 N.H. 699, 707 (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.

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 [¶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 disclosure by RSA 91-A:5, IV and
concluded that “the Plaintiff’s privacy interest is not weighty,” and that the
“public’s interest in disclosure, however, weighs heavily.” The court ordered
the City to provide the intervenors with IA Reports Nos. 1 through 10 and 10A,
as well as all four sets of the PSTC correspondence with the agreed-upon
redactions. The court also ordered the City to provide the intervenors and the
plaintiff with IA Reports Nos. 13 and 14 and the parties to “negotiate in good
faith to see if they can reach an agreement on the redactions.” In a January
2023 order, the court reaffirmed its October 2022 order and resolved the
parties’ remaining disagreements regarding redactions to IA Reports Nos. 13
and 14. This appeal followed.

II. Analysis

¶12 At issue on appeal is the disclosure of governmental records
regarding the plaintiff during his time as a police officer in the CPD —
specifically, IA Reports Nos. 1 through 10, 10A, 13 and 14, and three sets of
PSTC correspondence.1 The plaintiff argues for the enforcement of the
Stipulated Award and contends that it prohibits the disclosure of any records
that it covers. Accordingly, we begin by considering whether the 2007
Stipulated Award protects any of the requested records from disclosure.2
Because the interpretation of a contract is ultimately a question of law for us to
decide, we review the trial court’s interpretation of that agreement de novo.
Town of Pembroke v. Town of Allenstown, 171 N.H. 65, 69 (2018). When
interpreting a written agreement, we read the document as a whole and give
the language used by the parties its reasonable meaning, considering the
circumstances and the context in which the agreement was negotiated. Id. at
70. Absent ambiguity, the parties’ intent will be determined from the plain
meaning of the language used in the agreement. Monadnock Reg’l Sch. Dist. v.
Monadnock Dist. Educ. Ass’n, 173 N.H. 411, 420 (2020).

1 Because the plaintiff has agreed to the disclosure of the fourth set of PSTC correspondence and

the intervenors withdrew without prejudice their request for IA Reports Nos. 11 and 12, we do not
consider the disclosure of these records in this opinion.

2 The plaintiff and the intervenors agree that the Stipulated Award covers IA Reports Nos. 8, 10,

10A, 13, and 14, but not IA Reports Nos. 1-7. Whether IA Report No. 9 is covered by the
Stipulated Award is unclear, but the intervenors suggest that it is.

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 [¶13] The Stipulated Award provides, in relevant part:

4. Confidential. Both parties and their agents/representatives agree
to keep the existence, terms, and substance of this Award confidential
other than to say, if asked, that the matter has been resolved, except to
the extent required by an order of some other agency, court of competent
jurisdiction, or by law.

5. Personnel File. The City shall 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[.]

¶14 The plaintiff argues that the confidentiality and the purging
provisions of the Stipulated Award prohibit the disclosure of any of the records
that the Stipulated Award covers. Regarding the purging provision, the
plaintiff explains that he believed that the relevant documents could be
maintained only within his personnel file, and that “[i]f the City was going to
purge one file to put the material in another file, they should have informed the
union and [the plaintiff].” The intervenors contend that the purging provision
of the Stipulated Award does not state that the relevant records will be
destroyed or that they will cease to exist within the CPD. According to the
intervenors, the Stipulated Award provides only that the relevant records will
be purged from the plaintiff’s personnel file but does not state that the records
will be purged from all other locations. Similarly, the intervenors argue that
the confidentiality provision “does not provide the blanket confidentiality that
[the plaintiff] asserts.” Rather, the Stipulated Award “makes clear that its
confidentiality provision applies ‘except to the extent required by . . . law,’
which includes the requirements of RSA ch. 91-A.” We agree with the
intervenors.

¶15 Although the confidentiality provision provides that the “parties
and their agents/representatives agree to keep the existence, terms, and
substance of this Award confidential,” any such confidentiality is qualified.
Indeed, the provision expressly provides that the “parties and their
agents/representatives” shall 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.” (Emphases added.) Thus,
the Stipulated Award does not mandate wholesale confidentiality. Rather, it
demonstrates the parties’ recognition that the law could change over time and
that the confidentiality provision would not prevent disclosure of the relevant
records if such disclosure is required by law. Accordingly, we conclude that
the confidentiality provision of the Stipulated Award does not prevent the City
from disclosing the relevant records in question if such disclosure is otherwise
required by law. Here, the trial court concluded, and the plaintiff does not
dispute, that all of the required records are subject to disclosure under RSA
91-A:4, I.

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 [¶16] Similarly, the purging provision does not mandate wholesale
destruction of the records in question but, rather, only requires the City to
“purge [the plaintiff’s] personnel file of all reference” to two specific incidents
and the events leading up to them. (Emphasis added.) Thus, the City did not
violate the Stipulated Award when it purged the records in question from the
plaintiff’s personnel file but did not destroy them.

¶17 On appeal, the plaintiff’s arguments are entirely premised upon
whether the terms of the 2007 Stipulated Award prohibit the release of the
requested records. Indeed, the plaintiff did not raise in his notice of appeal,
nor did he fully brief, whether the records are exempt from disclosure under
RSA 91-A:5, IV. See State v. Blackmer, 149 N.H. 47, 49 (2003) (declining to
review any issue that is not “fully briefed” or “is not raised in a party’s notice of
appeal”). Moreover, the plaintiff expressly waived any RSA chapter 91-A claims
at oral argument. See State v. Bonalumi, 127 N.H. 485, 489 (1985) (an issue
waived at oral argument need not be considered by this court). Accordingly, we
do not disturb the trial court’s decision regarding the disclosure of the
requested records under RSA chapter 91-A.3 Given our conclusion that the
plaintiff waived all RSA chapter 91-A claims, we need not consider the
intervenors’ argument that the plaintiff lacks standing to bring a claim under
RSA chapter 91-A.

¶18 Lastly, we address the plaintiff’s remaining two arguments
regarding the City Manager’s August 2020 letter to the journalist. The plaintiff
argues that this letter violated the provision of the Stipulated Award that states
“[t]he parties agree that the disposition of this matter shall not be reported to
the newspaper or any other media outlet. If contacted by the media, the
parties will make no comment.” The plaintiff also contends that in this letter,
the City Manager incorrectly indicated the number of sustained reports that
the City located. Even if the plaintiff is correct that this letter violated the
aforementioned provision of the Stipulated Award and that the City Manager
incorrectly indicated the number of sustained reports that the City located, we
fail to see how such a conclusion impacts whether the requested records can
be disclosed pursuant to the Stipulated Award or RSA chapter 91-A.
Accordingly, we decline to consider the merits of these arguments.

3 Although the City, for the most part, agrees with the intervenors and the trial court, it argues

that the trial court erred in ordering the disclosure of IA Reports Nos. 13 and 14 under RSA
chapter 91-A. The City argues that the question of whether IA Reports Nos. 13 and 14 should be
disclosed under RSA chapter 91-A “is properly preserved for appellate review” because the plaintiff
raised the question in his notice of appeal and briefed the issue in his opening brief. We disagree,
and because we have concluded that the plaintiff neither raised this issue in his notice of appeal
nor fully briefed it, and that he waived all RSA chapter 91-A claims at oral argument, we decline to
consider this issue on appeal.

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 III. Conclusion

¶19 In summary, we conclude that the 2007 Stipulated Award does not
protect the requested records at issue on appeal from disclosure. We also
conclude that the plaintiff waived any argument that the requested records are
exempt from disclosure pursuant to RSA 91-A:5, IV, and, therefore, we do not
disturb the trial court’s order that all documents at issue in this case shall be
disclosed, subject to certain redactions. Given that we do not consider whether
the requested records are exempt from disclosure pursuant to RSA 91-A:5, IV,
the intervenors’ outstanding motion to strike the portions of the City’s
memorandum of law that argue in favor of exempting IA Reports Nos. 13 and
14 from disclosure under RSA 91-A:5, IV is moot.

Affirmed.

MACDONALD, C.J., and BASSETT J., concurred; HANTZ MARCONI, J.,
concurred in the result.

HANTZ MARCONI, J., concurring in the result.

¶20 I continue to be concerned with the effect of our overruling Union
Leader Corp. v. Fenniman, 136 N.H. 624 (1993), as I expressed in my dissent
in Union Leader Corp. v. Town of Salem, 173 N.H. 345, 358-62 (2020) (Hantz
Marconi, J., dissenting). As we noted in American Civil Liberties Union of New
Hampshire v. New Hampshire Division of State Police, our interpretation of the
exemptions set forth in RSA 91-A:5, IV (2023) has impacted the treatment of
law enforcement records in various ways. See Am. Civil Liberties Union of N.H.
v. N.H. Div. of State Police, 176 N.H. ___, ___ (decided Nov. 29, 2023) (slip op. at
9). Records impacted include: (i) records relating to an adverse employment
action against a former state trooper, id. at ___ (slip op. at 2); (ii) an
investigative report of a motor vehicle stop conducted by an officer no longer
with the employing department, Provenza v. Town of Canaan, 175 N.H. 121,
122-23 (2022); (iii) an audit report of a police department, Union Leader Corp.
v. Town of Salem, 173 N.H. at 348; and (iv) an arbitration decision concerning
the termination of a police officer, Seacoast Newspapers, Inc. v. City of
Portsmouth, 173 N.H. 325, 329 (2020). We have also considered the
juxtaposition of the Right-to-Know Law with the statute governing access to
police personnel files by a criminal defendant. See Am. Civil Liberties Union of
N.H., 176 N.H. at ___, (slip op. at 3-9); see also Petition of State of N.H. (State v.
Fuchs), 174 N.H. 785, 788-95 (2022) (maintaining confidentiality of records
disclosed in a criminal case). In this case, we are asked to address
confidentiality provisions in a bargained-for settlement agreement that became
unsettled by our decision overturning 26 years of precedent.

¶21 I am concerned that the majority’s opinion takes an incremental
step, under the facts of this case, to preclude the use of confidential

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settlements by governmental entities. Such agreements can serve an
important purpose, and our developing RSA 91-A jurisprudence, along with
other record retention policies, may reduce or eliminate the availability of this
device. Restrictions on confidential settlement agreements with respect to
public employees, and in particular, law enforcement officers, raise policy
considerations beyond the outcome of this case. The federal government, for
example, in 2022 reversed a 2020 ban on “clean-record agreements,” reasoning
that agencies should have them as an option to resolve employment disputes
“in a manner that balances the needs of the agency and fairness to the
employee.” Probation on Initial Appointment to a Competitive Position,
Performance-Based Reduction In Grade and Removal Actions and Adverse
Actions, 87 Fed. Reg. 67765, 67772-73 (Nov. 10, 2022). The United States
Office of Personnel Management has noted that such agreements can “resolve
workplace disputes at an early stage and with minimal costs” and “minimiz[e]
the burden of the substantial cost of litigation.” Id. at 67773. Police officers, in
particular, now also face the public disclosure of employment matters that
involve potentially exculpatory evidence. See RSA 105:13-d, I (2023).
Considering these developments, the legislature may want to examine the
records exempted pursuant to RSA 91-A:5, IV.4

¶22 I also do not think that the language in the agreement — “except to
the extent required . . . by law” — provides fair notice that a reinterpretation of
the Right-to-Know Law, not an amendment thereto, could undo an agreement
reached years prior, under a prior interpretation of the then governing law. We
interpret contracts with reference to the circumstances and intent of the
parties in place at the time the contract is made. R. Zoppo Co. v. City of Dover,
124 N.H. 666, 671 (1984). We also decline to apply judicial decisions
retroactively when doing so can cause harsh results. Lee James Enters. v.
Town of Northumberland, 149 N.H. 728, 730 (2003). In this case, however, the
plaintiff did not argue that Union Leader Corp. v. Town of Salem should not be
applied retroactively or that his bargained-for confidentiality agreement should
constitute a factor to be considered in the trial court’s balancing of his privacy
interests against the public’s right to know. For that reason, I concur in the
result reached by my colleagues.

4 See also RSA 91-A:4, VI (2023) (“Every agreement to settle a lawsuit against a governmental unit,

threatened lawsuit, or other claim, entered into by any political subdivision or its insurer, shall be
kept on file at the municipal clerk’s office and made available for public inspection for a period of
no less than 10 years from the date of settlement.”); RSA 33-A:3-a (Supp. 2023) (disposition and
retention schedule for municipal records, including personnel files and internal affairs
investigations).

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