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Petition of State

Supreme Court of New Hampshire

August 6, 2019

PETITION OF THE STATE OF NEW HAMPSHIRE

          Argued: May 16, 2019

          5th Circuit Court-Claremont Family Division

          Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general, on the brief and orally), for the State.

          Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the juvenile.

          Malloy & Sullivan Lawyers Professional Corporation, of Hingham, Massachusetts (Kathleen C. Sullivan on the brief), for Union Leader Corporation, as amicus curiae.

          HANTZ MARCONI, J.

         The State filed a petition for original jurisdiction seeking review of an order of the Circuit Court (Yazinski, J.) denying a request by the Office of the Attorney General (AGO) to release records underlying its investigation into an incident involving minors. See Sup. Ct. R. 11. We affirm the court's ruling that the records are confidential under RSA 169-B:35 (Supp. 2018).

         According to the AGO, in 2017, an incident involving several minors occurred in Claremont. The AGO, the United States Attorney's Office, the Federal Bureau of Investigation, and the Claremont Police Department jointly investigated the incident. Subsequently, the Sullivan County Attorney filed delinquency petitions in the circuit court against one of the juveniles.

         The AGO, thereafter, sought court authorization "to disclose the details of its investigation, its conclusions of fact and law, and the nature of the Claremont Police Department's delinquency charges and the disposition in [the] delinquency matter." As grounds for the request, the AGO cited "the intense public interest in and scrutiny of its investigation." The AGO asserted that the evidence obtained during the investigation was not confidential under RSA 169-B:35 but, even if it were, "significant policy considerations" allowed disclosure as long as the juvenile's identity was protected.

         Following a hearing, the trial court rejected the AGO's argument that RSA chapter 169-B does not apply to the AGO's investigatory records. The court stated that "RSA 169-B:35 provides that all case records relative to delinquencies are confidential. Publication of information concerning a juvenile case is strictly prohibited with few legislatively enacted exceptions. None of those exceptions apply in this case." The court further stated that

the courts, police departments, and prosecutors throughout the state have always considered the investigative files of agencies involved with juvenile delinquencies to be subject to the confidentiality provisions of RSA 169-B. To find otherwise would render the confidentiality requirements of the statute meaningless. Little would be gained from closing court records to the public while allowing prosecutorial agencies to discuss and disclose their findings and records with the press or to publicly release those records.

         The court found, however, that "a limited release of information would, in fact, assist" in the juvenile's rehabilitation and, accordingly, it granted the AGO's request to "release information contained in [the AGO's] investigative reports as well as its investigative conclusion." The court also authorized the AGO "to acknowledge that a delinquency case has been opened . . . and a Dispositional Order adopted" and that the court "will continue to exercise jurisdiction over this juvenile as [the juvenile] complies with Dispositional Orders and engages in . . . rehabilitative services." The court ordered that "[p]rior to the release of any information or media statements, the Attorney General's Office shall provide counsel for the juvenile with a copy of the documents it intends to release" as well as providing a copy to the court.

         Accordingly, the AGO submitted to the trial court a 25-page draft report that protected the confidentiality of the victim and the witnesses and documented: (1) the scope of its investigation; (2) the facts it found during its investigation; and (3) its conclusions based on those facts. Following a hearing, the court authorized the AGO to release the report as written. The AGO, thereafter, renewed its request to release its underlying investigative records - 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. The trial court denied the motion, and this appeal followed.

         On appeal, the State argues that the trial court erred in denying the AGO's request to release its underlying investigative materials because: (1) they do not constitute "case" or "court" records within the meaning of RSA 169-B:35; and (2) even if the confidentiality provisions of RSA 169-B:35 apply to them, the court interpreted the statute "too broadly" in denying the AGO's request to release redacted ...


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