N.H. high court upholds release of pension information

You-Jin Han | Freedom of Information | Feature | November 4, 2011

The New Hampshire Supreme Court ruled this week that the public has a right of access to the names of state pension benefit recipients as well as the amounts they receive. The court decided that the public interest in releasing the information outweighed any privacy interests of the individuals named within the records.

The court’s ruling affirms a lower court's order last year to the New Hampshire Retirement System to disclose the same records.

In February 2010, a reporter for The Union Leader made a request to the agency under the state’s Right-to-Know Law for a list of state retirement system members who received the 500 highest annual annuity payments in 2009, as well as the amounts paid to them.

When the agency refused to release the names, offering instead to provide a list of the amounts paid, the newspaper sued.

“It provides that last piece of the puzzle if someone were trying to determine whether a particular retiree’s benefits were consistent with the formula,” said Kathleen Sullivan, attorney for The Union Leader. “It’s public information what position they held, it’s public information how long they held that position for, their salary is public information. So according to the NHRS, all they do is plug those numbers into their formula and come up with the allowance, but without the name, the public would have no way of knowing that formula was followed, whether it was calculated correctly, whether there was any favoritism or incompetence or corruption.”

The retirement system argued that while the lists were agency records, they should be withheld under an exemption to the law for records that would invade a person's privacy.

In deciding whether the exemption applied, the court applied a balancing test, weighing the public interest in releasing the information against the retirees’ privacy interests.

First, the court found only a minimal privacy interest existed in the information, noting that it in prior cases, New Hampshire courts have ordered the release of public employees’ names and salaries, including those of teachers. The court found the relatively small privacy interest at stake in those cases are similar to the interests of pension beneficiaries.

The agency argued that the pension information implicated more of a privacy interest than salary information because the formula the state uses to calculate a retiree’s pension benefits, unlike salaries, takes into account aspects of a person’s financial situation, such as disabilities and marital status. The court rejected this argument, saying that although private information about retirees factors into the amount of benefits they receive, releasing the amount would not reveal that private information.

Then, the agency argued that, unlike teachers, retirees were “more likely to be elderly and specifically targeted by fraudulent solicitations and scams.”

However, the court dismissed that argument as "speculative at best," citing the lack of evidence supporting it.

“[W]e find that retirees have a privacy interest in information associating their names with the amount of their retirement benefits,” said the court, “but conclude that it is not appreciably different from public employees’ interest in keeping the amount of their salaries private.”

Next, the court held the public has an interest in the information because “[t]o the extent that public funds are used to pay the annuities at issue . . . the public has some interest in knowing the amounts and to whom they are paid.”

Balancing the public interest against the privacy interest in the information, the court ultimately held that releasing it would not violate the retirees’ privacy under the Right-to-Know Law.

The retirement system released a statement on its website explaining that while it has an "obligation to protect the privacy of retirees," it will comply with the court's ruling.