Major Wins for Transparency: N.H. State Supreme Court Favors Right to Know

CONTACT Justin Silverman | 774.244.2365 |

The New England First Amendment Coalition applauds a pair of positive decisions issued by the Supreme Court of New Hampshire today that will make it easier for the public to oversee its law enforcement agencies and hold police officers accountable for their actions.

“These decisions are major wins for transparency and the public’s right to know about government,” said Justin Silverman, NEFAC’s executive director. “They will fundamentally change the way many law enforcement records are considered under the Right-to-Know Law and will make it easier for citizens to get the information they need.”

In each case, the high court overruled a previous decision that categorically exempted from the state’s Right-to-Know Law any records related to “internal personnel practices.” With today’s rulings, that category of records is now more limited. A balancing test — rather than the more strict per se exemption — is now also required to determine if those records should be publicly released.

At stake in the cases was the public’s right to access certain law enforcement records. Seacoast Newspapers v. City of Portsmouth concerned the release of a 2018 arbitration decision about a fired police officer. In Union Leader Corp. v. Town of Salem, the court addressed a public records request for an audit report that included details about internal affairs complaint investigations.

Both the police union in Portsmouth and the Salem Police Department had cited a 1993 case Union Leader Corp. v. Fenniman to try to argue that the documents were exempt from the Right-to-Know Law, an earlier decision the court now says is flawed.

Attorneys Richard Gagliuso of Bernstein Shur and Gregory V. Sullivan of Malloy & Sullivan, both NEFAC board members, were among the attorneys arguing for the public’s right to know in the cases.

“The two decisions released today by the Supreme Court are victories for the public’s right to know what the government is up to,” said Sullivan, who represented Union Leader Corp. “Nowhere is the public’s right to know more important than within the functioning of law enforcement agencies.”

Added Gagliuso, who represented Seacoast Newspapers:

“The people of New Hampshire are the real winners today. The public’s right to know about how its government operates is one of the bedrock principles of our state Constitution. The N.H. Supreme Court today took a bold step in favor of ensuring that essential right, overruling a line of cases that had stood for 30 years. In doing so, it not only corrected a clear error but eliminated the grounds most often cited by public agencies for withholding a wide swath of public records from public view.”

NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. In New Hampshire, the coalition recently partnered with the Nackey S. Loeb School of Communications to offer free online civics classes; wrote to Gov. Chris Sununu about protecting the rights of journalists during the COVID-19 pandemic; and presented a Sunshine Week event at Nashua Community College.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include Hearst Connecticut Media Group, The Boston Globe, Paul and Ann Sagan, WBUR, Boston University and the Robertson Foundation.