Union Leader Corp. v. N.H. Dep't of Safety

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
Case No. 2023-0208
Citation: Union Leader Corp. v. N.H. Dep’t of Safety, 2024 N.H. 35

UNION LEADER CORPORATION

v.

NEW HAMPSHIRE DEPARTMENT OF SAFETY

Argued: February 13, 2024
Opinion Issued: July 3, 2024

Malloy & Sullivan, Lawyers Professional Corporation, of Hingham,
Massachusetts (Kathleen C. Sullivan on the brief and orally), for the plaintiff.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Brendan A. O’Donnell, assistant attorney general, on the brief and
orally), for the defendant.

COUNTWAY, J.

¶1 The plaintiff, Union Leader Corporation (Union Leader), appeals an
order of the Superior Court (Kissinger, J.) dismissing its suit against the
defendant, the New Hampshire Department of Safety (Department), in which
Union Leader sought to compel the Department to disclose records under the
Right-to-Know Law, RSA chapter 91-A (2023 & Supp. 2023). We reverse and
remand.

¶2 The following facts were recited in the trial court’s order or relate the
contents of documents in the record. On October 13 and November 21, 2022,
Union Leader requested records from the Department under the Right-to-Know
Law. Union Leader sought any records, including incident reports, related to
the response by New Hampshire State Police to the Sununu Youth Services
Center (SYSC) on October 7 and 8, 2022. Union Leader specifically requested
such records “with confidential information redacted.” The Department refused
disclosure on the ground that “law enforcement investigative records pertaining
to juvenile delinquency . . . are confidential per RSA 169-B and are therefore
not publicly available under RSA 91-A.”

¶3 Union Leader then filed the instant action to compel the
Department’s compliance with Union Leader’s request. In its complaint, Union
Leader alleged, on information and belief:

[S]ince August of 2022, police and emergency medical services
have responded to calls for help at least ten (10) times in response
to incidents at [SYSC], some resulting in serious injuries to staff
and residents, and property damage. The State Police have been
making routine “check-ins” at the facility since September.

(Footnote omitted.) Union Leader supplements that background with
representations in its brief that this “unprecedented use of police and medical
help” arose from severe understaffing: “Leading up to the October 7th State
Police presence, the SYSC center had only twenty youth counselors on staff as
opposed to the ideal number of forty[-]five, and three of the center’s four
teachers had left.”

¶4 The Department moved to dismiss. The trial court ordered the
Department to inform the court whether it had initiated juvenile delinquency
proceedings arising out of the October 7 and 8 incidents “and, if so, whether all
records covered by Union Leader’s request directly pertain to those
proceedings.” The Department filed its response under seal, after which the
court granted the motion to dismiss. The court noted that “juvenile
delinquency proceedings were brought against multiple juveniles involved in
the October 7, 2022 incident” and found that “[t]he requested records contain
the facts that underlie the basis for . . . juvenile delinquency proceedings.”
Therefore, relying in large part on our decision in Petition of State of New
Hampshire (Disclosure of Juvenile Records), 172 N.H. 493 (2019), the court
concluded that “RSA 169-B:35 prohibits the release of the records Union
Leader requests.” The court reasoned that public inspection of those records
was “otherwise prohibited by statute” for purposes of RSA 91-A:4, I. RSA 91-
A:4, I (2023). This appeal followed.

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 [¶5] Because the trial court based its dismissal of this action solely on its
interpretation of RSA 169-B:35 and RSA 91-A:4, I, our review is de novo. See
Petition of State, 172 N.H. at 496. “When examining the language of the
statute, we ascribe the plain and ordinary meaning to the words used.” Id.
“We interpret legislative intent from the statute as written and will not consider
what the legislature might have said or add language that the legislature did
not see fit to include.” Id. “We consider the words and phrases of the statute
within the context of the statute as a whole.” Id. “Our goal is to apply statutes
in light of the legislature’s intent in enacting them, and in light of the policy
sought to be advanced by the entire statutory scheme.” Id. “When interpreting
several statutory provisions that involve the same subject matter, the
provisions must be construed together so that they lead to a logical result
reflective of the legislative purpose of the statutes.” Id.

¶6 These “ordinary rules of statutory construction apply to our review of
the Right-to-Know Law.” Am. Civil Liberties Union of N.H. v. N.H. Div. of State
Police, 176 N.H. 302, 306 (2023) (quotation omitted). “We resolve questions
regarding the Right-to-Know Law with a view to providing the utmost
information in order to best effectuate the law’s statutory and constitutional
objectives.” Id. (quotation omitted).

¶7 The Right-to-Know Law provides, in pertinent part:

Every citizen during the regular or business hours of all public
bodies or agencies, and on the regular business premises of such
public bodies or agencies, has the right to inspect all governmental
records in the possession, custody, or control of such public bodies
or agencies, including minutes of meetings of the public bodies,
and to copy and make memoranda or abstracts of the records or
minutes so inspected, except as otherwise prohibited by statute or
RSA 91-A:5.

RSA 91-A:4, I (emphasis added). As relevant here, RSA 169-B:35 provides:

Court records of proceedings under this chapter, except for those
court records under RSA 169-B:36, II, shall be kept in books and
files separate from all other court records. Such records shall be
withheld from public inspection but shall be open to inspection by
officers of the institution where the minor is committed, juvenile
probation and parole officers, a parent, a guardian, a custodian,
the minor’s attorney, the relevant county, and others entrusted
with the corrective treatment of the minor. Additional access to
court records may be granted by court order or upon the written
consent of the minor. Once a delinquent reaches 21 years of age,
all court records and individual institutional records, including
police records, shall be closed and placed in an inactive file.

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RSA 169-B:35, II (2022).

¶8 Union Leader argues that it is not seeking “court records of
proceedings under” RSA chapter 169-B. Id. The Department disagrees,
arguing that we ruled in Petition of State that “confidential ‘court records’
include law enforcement investigatory records concerning a juvenile subject to
the provisions of RSA chapter 169-B,” and that our reasoning in that case
“applies with equal force to Union Leader’s present petition under RSA chapter
91-A.” Union Leader counters that the protection afforded under RSA 169-
B:35 “can be construed to cover the records at issue only by broadening and
extending the application of” Petition of State “to the very different facts,
circumstances, and context of this case.”

¶9 Because the parties’ arguments in this case focus on our treatment
of the term “court records” in Petition of State, we now examine that decision.
In Petition of State, the Office of the Attorney General (AGO) challenged the
trial court’s denial of the AGO’s request “to release records underlying its
investigation into an incident involving minors.” Petition of State, 172 N.H. at
494. The records sought to be released comprised “approximately 400 pages
consisting of, among other things, transcripts of interviews conducted by the
child advocacy center, the AGO, and the Claremont Police Department;
Claremont Police Department documents; and medical records.” Id. at 495. As
a result of the investigation, delinquency petitions were filed against one of the
juveniles involved in the incident. Id. at 494.

¶10 We affirmed the trial court’s ruling that the records were
confidential under RSA 169-B:35. Id. at 494. We explained:

RSA chapter 169-B establishes special, largely non-public,
procedures for juveniles and authorizes broad restrictions on
access to juvenile case and court records. The importance the
legislature attaches to the confidentiality of juvenile records is
reflected in the fact that disclosure of records in violation of RSA
chapter 169-B is a crime. Although the chapter does not expressly
define what is encompassed within the meaning of court records,
we construe the statute liberally to effect its purpose of
rehabilitating delinquent minors by shielding them from the
environment surrounding adult offenders and inherent in the
ordinary criminal processes. Thus, it is reasonable to conclude
that the legislature intended that investigative records compiled by
the AGO concerning a juvenile subject to the provisions of RSA
chapter 169-B be confidential. Indeed, as the AGO acknowledged
in its motions before the trial court, “the information gathered over
the course of the Attorney General’s investigation is relevant to . . .
and likely will become part of any court records,” and “[m]any of
the facts obtained during the Attorney General’s investigation of

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 the . . . matter — facts which include those in the Claremont Police
Department’s investigation of the same incident — form the basis
for the prosecution of [the juvenile] that is now before” the court.

Id. at 498-99 (quotation and citations omitted).

¶11 As Union Leader points out, Petition of State involved “the
discretionary function of the trial court in refusing to release court records, in
the context of a proceeding under RSA 169-B.” See RSA 169-B:35, II (providing
that “[a]dditional access to court records may be granted by court order”).
Although the AGO in that case invoked both the Right-to-Know Law and Part I,
Article 8 of the New Hampshire Constitution as “evidenc[ing] a strong public
interest in the release of as much information as possible to the public,”
neither was directly at issue. Petition of State, 172 N.H. at 499 (quotation
omitted). Indeed, the State explicitly acknowledged “that ‘this is not a Petition
pursuant to RSA 91-A.’” Id. Accordingly, any consideration of the public
interest in access to juvenile court records took place in the context of a
request to release records under RSA 169-B:35, II, not the Right-to-Know Law.
See id. (noting that, in RSA chapter 169-B, the “legislature has . . . determined
that confidentiality of juvenile proceedings and records prevails over the right
of public access to such information”). This case, by contrast, arises under
RSA chapter 91-A and requires us to consider the legislature’s directives
regarding public access in that law.

¶12 The legislature’s stated purpose in enacting RSA chapter 91-A was
“to ensure both the greatest possible public access to the actions, discussions
and records of all public bodies, and their accountability to the people.” RSA
91-A:1 (2023). Accordingly, “[a]lthough the statute does not provide for
unrestricted access to public records, we resolve questions regarding the Right-
to-Know Law with a view to providing the utmost information in order to best
effectuate these statutory and constitutional objectives.” Ortolano v. City of
Nashua, 176 N.H. 175, 179 (2023) (quotation omitted). “As a result, we broadly
construe provisions favoring disclosure and interpret the exemptions
restrictively.” Id. (quotation omitted).

¶13 Construing the juvenile delinquency statutes and the Right-to-
Know Law together, in light of their respective purposes, we agree with Union
Leader that the term “court records” in RSA 169-B:35 should not be read so
expansively as to “shield the entirety of a broad category of otherwise public
records from a request made pursuant to the Right to Know Law, RSA 91-A,
even if that record is related to alleged unlawful conduct by unidentified
minors.” We find instructive Ogden Newspapers, Inc. v. City of Williamstown,
453 S.E.2d 631 (W. Va. 1994), which drew a distinction between “factual
information about incidents impacting public safety and welfare” and those
“aspects of a juvenile criminal investigation” for which confidentiality plays a
“central role . . . in a juvenile’s rehabilitation.” Ogden Newspapers, Inc., 453

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S.E.2d at 637 (noting that “the newspaper argues that it was merely seeking
information regarding the time, date, place and nature of the incident, not the
juveniles’ names”). The court concluded that “both of these interests can be
reconciled by finding a constitutionally protected right of the press and public
to a redacted copy of [police] incident reports involving juveniles.” Id. at 638.
It stated that the state’s juvenile confidentiality statutes “should . . . be read to
promote the goal of protecting juvenile anonymity, rather than broadly
construed to prevent disclosure of otherwise public information that would be
contained in redacted police incident reports involving juveniles.” Id. at 638-
39. It reasoned that “[b]roadly defining juvenile records to include redacted
incident reports is not necessary to protect the identity of the juveniles and to
preserve the confidentiality of their records,” and therefore held that “the
factual data contained in a properly redacted incident report does not rise to
the level of a ‘juvenile record’ protected from disclosure (absent court order) by
the confidentiality statutes.” Id. at 639.

¶14 We conclude that our juvenile delinquency statutes and Right-to-
Know Law, as well as our decision in Petition of State, can be similarly
reconciled. The Right-to-Know Law exempts records whose disclosure is
“otherwise prohibited by statute.” RSA 91-A:4, I. RSA 169-B:35, II prohibits
disclosure of juvenile “court records,” a term that the statute does not define,
but which we interpreted in Petition of State. Petition of State construed that
term to reach “investigative records compiled by the AGO [and in the AGO’s
possession] concerning a juvenile subject to the provisions of RSA chapter
169-B.” Petition of State, 172 N.H. at 499. We now clarify that to the extent
Petition of State’s interpretation of “court records” subject to RSA 169-B:35
encompasses records generated and possessed by governmental entities other
than the courts, it includes only information whose disclosure would run
counter to the purpose of rehabilitating delinquent minors. See id. at 498-
99. This refinement effectuates the juvenile delinquency statutes’ purpose of
rehabilitating delinquent minors while also ensuring “the greatest possible
public access to the actions, discussions and records of all public bodies.” RSA
91-A:1.

¶15 In the instant case, Union Leader argues:

Th[e] public has a right to know how the State of New Hampshire
responded to the needs and behaviors of unidentified children in
its custody on October 7, [2022]. Plagued with crisis after crisis,
and chronically understaffed, [SYSC] was regularly relying on the
State Police for the safety of its inhabitants in October of [2022].
The public has a right and a duty to know how the State Police
handled the situation. How many Troopers responded? Were they
in riot gear? Did the situation escalate or de-escalate in response
to their presence? How long did it take them to get there? Union
Leader’s request seeks information about the government’s

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 response to events at [SYSC] on October 7th — not “court records
of proceedings under [chapter 169-B].”

(Citation omitted.) It is conceivable that information in the Department’s
possession could answer these questions without interfering with the
rehabilitation of the minors against whom juvenile petitions were filed. It is
also conceivable that responsive records could be redacted so as to ensure that
their disclosure neither conflicts with nor compromises the rehabilitative
purpose of RSA chapter 169-B.

¶16 The record before us does not contain the withheld records and the
Department’s response to the trial court’s order regarding whether any juvenile
delinquency proceedings had arisen out of the incidents at issue lacks
sufficient detail to determine whether any information in those records would
be disclosable in accordance with this decision. Accordingly, we reverse the
trial court’s order and remand for it to make those determinations consistently
with this opinion.

Reversed and remanded.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred;
HANTZ MARCONI, J., sat for oral argument but subsequently disqualified
herself and did not participate in further review of the case.

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