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38 Endicott Street North, LLC v. State Fire Marshal

May 22, 2012

38 ENDICOTT STREET NORTH, LLC
v.
STATE FIRE MARSHAL, NEW HAMPSHIRE DIVISION OF FIRE SAFETY



The opinion of the court was delivered by: Lynn, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: February 16, 2012

The petitioner, 38 Endicott Street North, LLC, appeals an order of the Superior Court (McNamara, J.) dismissing its petition under the Rightto-Know Law and denying its request for attorney's fees. See RSA ch. 91-A (2001 & Supp. 2011). We affirm.

The following facts are supported by the record. The petitioner owns the Wide Open Restaurant, Hotel and Saloon located in Laconia. On September 17, 2010, a fire occurred at the property. The State Fire Marshal's Office (the FMO) is investigating the fire.

On April 8, 2011, the petitioner sent the respondent, the State Fire Marshal, head of the New Hampshire Division of Fire Safety (the Fire Marshal), a letter requesting to inspect all records, information, and documents (the materials) related to the September 17th fire and the "investigation thereof." The petitioner did not receive a response, and on May 3, 2011, sent a second letter demanding a response. On May 5, 2011, the Fire Marshal replied, disclosing the Incident Initiation Report and its supplement, but withholding all other materials because the investigation was ongoing.

On May 6, 2011, the petitioner filed a petition seeking an injunction directing the Fire Marshal to produce the undisclosed materials pursuant to RSA chapter 91-A, the New Hampshire Right-to-Know Law. The petitioner also requested attorney's fees and costs. The Fire Marshal responded that the undisclosed materials are excluded from the Right-to-Know Law under the exemption for records "compiled for law enforcement purposes." The petitioner argued that the Fire Marshal is not a law enforcement officer and, therefore, the material was not compiled "for law enforcement purposes." On June 6, 2011, the Fire Marshall disclosed additional materials that the FMO had determined could be segregated from the records asserted to be exempt. After a hearing on June 7, 2011, the trial court ruled that the withheld records were exempt from the Right-to-Know Law, denied the petition, and also denied the petitioner's request for attorney's fees and costs.

On appeal, the petitioner argues that the trial court erred in ruling that the materials were compiled for law enforcement purposes and that disclosure could reasonably be expected to interfere with law enforcement proceedings. The petitioner also argues that the trial court erred in denying its requests for an in camera review of the materials or the compilation of a Vaughn index, as well as in denying its motion for attorney's fees and costs.

I. The Murray Exemption

The Right-to-Know Law guarantees "[e]very citizen . . . the right to inspect . . . and copy" all public records, with certain limited exceptions. RSA 91-A:4. "The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." Murray v. N.H. Div. of State Police, 154 N.H. 579, 581 (2006) (quotation omitted). It thus furthers our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted. Id.; see also N.H. CONST. pt. I, art. 8. Although 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. Murray, 154 N.H. at 581.

We review the trial court's interpretation of the Right-to-Know Law and its application of the law to undisputed facts de novo. See id. We construe provisions favoring disclosure broadly, while construing exemptions narrowly. Id. A public entity seeking to avoid disclosure under the Right-to-Know Law "bears a heavy burden to shift the balance toward nondisclosure." Id. In interpreting provisions of the New Hampshire Right-to-Know Law, we often look to the decisions of other jurisdictions interpreting similar provisions of other statutes for guidance, including federal interpretations of the federal Freedom of Information Act (FOIA). See id. at 581, 583; Lamy v. N.H. Pub. Utils. Comm'n, 152 N.H. 106, 111 (2005).

Although RSA chapter 91-A does not explicitly address the treatment of requests for law enforcement records or information, we have adopted the test embodied in exemption 7 of the FOIA at 5 U.S.C. § 552(b)(7) (2006). Lodge v. Knowlton, 118 N.H. 574, 576-77 (1978); Murray, 154 N.H. at 582; Montenegro v. City of Dover, 162 N.H. 641, 645-46 (2011) (explaining that in Murray, we amended the test adopted in Lodge to be consistent with the 1986 amendment to exemption 7 of the FOIA). Under the exemption, which we have deemed the Murray exemption, "records or information compiled for law enforcement purposes" are exempt from disclosure, but only to the extent that the production of such 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 . . ."

Murray, 154 N.H. at 582 (quoting 5 U.S.C. § 552(b)(7)). Thus, the Murray exemption requires a two-part inquiry. See Montenegro, 162 N.H. at 646; accord FBI v. Abramson, 456 U.S. 615, 622 (1982). First, the entity seeking to avoid disclosure must establish that the requested materials were "compiled for law enforcement purposes." Montenegro, 162 N.H. at 646 (quotation omitted); accord Abramson, 456 U.S. at 622. Second, if the entity meets this threshold requirement, it must then show that releasing the material would have one of the six enumerated adverse consequences. Montenegro, 162 N.H. at 646; accord Abramson, 456 U.S. at 622. Here, the petitioner argues that the Fire Marshal has not satisfied either requirement.

A. Compiled for Law Enforcement Purposes

We first consider whether the undisclosed records were compiled for law enforcement purposes. Below and on appeal, both parties have primarily focused upon whether the FMO is a law enforcement agency. Similarly, the trial court based its determination that the records were compiled for law enforcement purposes on the fact that the Fire Marshal "is indeed a law enforcement officer." However, the exemption does not apply exclusively to law enforcement officers or agencies, but rather applies to all records and information compiled, by any type of agency, for law enforcement purposes. See Montenegro, 162 N.H. at 645-46; Murray, 154 N.H. at ...


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