Right-to-Know law gets tougher to circumvent
Article Date: Wednesday, December 27, 2006
The New Hampshire Supreme Court has handed down an important ruling in the case of Frederick J. Murray v. N.H.
Division of State Police, Special Investigation.
Its importance lies not just in the possibility it may help a distraught father find his missing daughter, but because the
decision strengthens New Hampshire's Right-to-Know law.
The case involves attempts by Murray, a Weymouth, Mass., father, to access police records concerning his 23-year-
old daughter, Maura, who went missing during the winter of 2004 in New Hampshire following a minor car accident.
With State Police failing to find his daughter, Murray has been seeking access to the records in hopes of being able
to use them for an independent investigation.
However, the State Police, through the Attorney General's Office, has denied this request arguing the records are
part of an ongoing investigation and, as such, are not subject to the state Right-to-Know law.
While the high court did not order the release of the records in its Dec. 20 ruling, it did reject the attorney general's
blanket contention they be kept sealed, primarily because they were part of an ongoing investigation.
First of all, the court found there is no such blanket exemption under New Hampshire law. In fact, the court found such
a void that it turned to federal law — the Freedom of Information Act — for guidance.
In doing so, the court took the position that the New Hampshire Right-to-Know law should be interpreted liberally.
"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."
The court further noted: "While 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
the statutory and constitutional objective of facilitating access to all public documents."
Moving to the federal Freedom of Information Act, the court found it was the state's responsibility to justify withholding
investigative records — that a carte blanche denial of Murray's request was not appropriate.
Effectively, the court incorporated into state jurisprudence a six-part test provided for by the FOIA. These include the
ability to withhold information that may hinder an investigation, deprive someone of a fair trial, invade someone's
privacy, identify confidential sources, disclose certain investigative techniques or endanger someone's life or physical
safety.
The court found while the Attorney General's Office might have grounds to withhold investigative records, it has not
shown that releasing the records would "interfere" with that investigation or eventual prosecution.
"Put another way," wrote the court, "merely because a piece of paper has wended its way into an investigative dossier
created in anticipation of enforcement action, an agency . . . cannot automatically disdain to disclose it."
The court went on to tell the Attorney General's Office that, "Since an agency may not rely on a blanket exemption, it
must meet a minimum threshold of disclosure in order to justify its refusal to disclose."
That doesn't mean, however, the court is requiring the attorney general's staff to defend every page, paragraph or
word.
"The agency is not required, however, to justify its refusal on a document-by-document basis. ... the withholding
should be justified category-of-document by category-of-document not file-by-file."
In addition, Murray is not seeking a public review of all documents, rather each case involves an "in camera" review
— one conducted in chambers by a judge out of the public purview.
The high court's decision sends the matter back to the trial court where the Attorney General's Office will be required
to justify its decision to withhold documents. The decision will also give Fred Murray another chance to further the
search for his daughter.
But perhaps more importantly, the court's decision reaffirms that New Hampshire's Right-to-Know law must be liberally
interpreted, not liberally restricted — something that should be noted by county attorneys as well as local police
departments across New Hampshire.