Disciplinary Arbitration Decision May Be Subject To Public Disclosure

Disciplinary Arbitration Decision May Be Subject To Public Disclosure

Written on 09/01/2020
Will Aitchison

New Hampshire’s public records act is known as the “Right-to-Know Law.” For many years, the New Hampshire Supreme Court has held that the “internal personnel practices” exception in the Law shielded disciplinary arbitration decisions from disclosure. In May 2020, the Court changed its mind.

The new case involved the 2015 termination of City of Portsmouth police officer Aaron Goodwin. The charges against Goodwin related to his relationship with the late Geraldine Webber, an elderly resident who made Goodwin the primary beneficiary of her estate, which was worth over two million dollars. A probate judge later overturned the inheritance, while finding Goodwin had exerted undue influence over Webber by helping her find a lawyer to change her estate to his benefit.

When an arbitrator issued a decision that favored Goodwin, the City declined to release it to the public, citing the prior decisions of the Court. Seacoast Newspapers then filed a lawsuit seeking the disclosure of the Arbitrator’s decision.

The Supreme Court overruled its prior decisions to the contrary and held that the “internal personnel practices” exemption did not apply to Goodwin’s arbitration decision. The Court noted that “the Right-to-Know Law is the crown jewel of government transparency in New Hampshire. We conclude that the ‘internal personnel practices’ exemption was intended to apply only to records pertaining to the internal rules and practices governing an agency’s operations and employee relations, not information concerning the performance of a particular employee. This narrow interpretation is consonant with our constitution and the purpose of the Right-to-Know Law.

“Furthermore, our narrow interpretation recognizes the Legislature’s decision to enact a separate exemption for ‘personnel, medical, and other files.’ We interpret a statute in the context of the entire statutory scheme and the legislature is presumed not to use superfluous language.

“We conclude that records documenting the history or performance of a particular employee fall within the exemption for personnel files. Such records pertain to an employee’s work performance and are therefore typically maintained by the personnel department. Records relating to internal policies pertaining to an agency’s operations and employee relations, on the other hand, would not be maintained in an employee’s personnel file. Thus, narrowly interpreting the exemption for ‘internal personnel practices’ gives full effect to both exemptions that the legislature chose to enact.

“Applying this interpretation to the arbitration decision at issue here, we conclude that the decision does not fall within the ‘internal personnel practices’ exemption. The decision does not relate to the personnel rules or practices of the City of Portsmouth. Rather, the arbitration and the consequent decision are products of the application of those rules and practices and, because the decision relates to the conduct of a specific employee, it would be the type of information preserved in an employee’s personnel file.

“We remand this case to the trial court for its consideration, in the first instance, as to whether the arbitration decision arising from the grievance provision of the collective bargaining agreement is exempt from disclosure pursuant to the two-part analysis for personnel files. To that end, the trial court must determine: (1) whether the material can be considered a personnel file or part of a personnel file; and (2) whether disclosure of the material would constitute an invasion of privacy.”

Seacoast Newspapers, Inc. v. City of Portsmouth, 2020 WL 2791849 (N.J. 2020).

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