The New Hampshire Right-to-Know Law Under Clay v. City of Dover

By Leigh S. Willey

On February 24, 2017, the Supreme Court issued a Right-to-Know opinion in, Clay v. City of Dover, et al. The issue before the Court was whether applicant evaluation forms completed by the School Board’s superintendant search committee were exempt from disclosure under New Hampshire’s Right-to-Know Law as “[r]ecords pertaining to internal personnel practices.” (RSA 91-A:5, IV) The trial court ruled that the evaluation forms were not exempt and ordered their disclosure.

The Supreme Court reversed that decision on appeal. The Court held that “personnel” refers to classic human resources functions, such as hiring and firing, work rules and discipline, and compensation and benefits and that the evaluation forms pertained to “personnel practices,” within the meaning of the statute, because the forms related to the School Board’s hiring process.

The Court next considered the statute’s use of the word “internal.” It began by reviewing its decision in Reid v. New Hampshire Attorney General, decided on December 23, 2016. The Reid case involved disclosure of documents related to the Attorney General’s investigation of a former Rockingham County attorney. In Reid,the Court ruled that the word “internal” modifies “personnel practices” to mean “practices that exist or are situated within the limits of employment.” The Reid Court held that the Attorney General’s investigative documents did not pertain to “internal personnel practices,” and therefore were not exempt from the right to know because the Attorney General was not the county attorney’s employer.

Relying on the Court’s ruling in Reid, the plaintiff in Clay argued that the evaluation forms did not constitute “internal personnel practices” because no employment relationship existed between the School Board and the applicants for the superintendant position. The Court rejected this argument, ruling that the evaluation forms were completed during an internal hiring process conducted on behalf of the School Board, the superintendant’s employer, and that, therefore, the evaluation forms were exempt from the right to know.