High court upholds order to disclose index of withheld documents

NEW HAMPSHIRE–The state Supreme Court in Concord held unanimously in late December that a state trial court may order the developer of two state-financed housing projects to produce indices describing the contents of documents it has withheld from a requester and the reasons for withholding them, and summarily order release if the indices are inadequate.

Citing documents in the indices identified only as “handwritten memo dated 3/27/90” and “letter of a financial institution dated 6/7/88 to NCDG,” the Supreme Court found that the indices “fail[ed] to give the slightest factual reference that would enable the court to determine whether the claimed legal exemption applies.”

In March and April 1995, reporters for the Union Leader (Manchester) and the Concord Monitor asked, pursuant to the state Right-to-Know Law, the New Hampshire Housing Finance Authority to disclose documents concerning two housing developments that the authority was partially financing. When the authority refused to produce all of the requested documents, the newspapers filed suit in superior court in Manchester seeking disclosure. The court allowed the housing project developer to intervene in the litigation to oppose production of the documents.

The trial court granted a motion, filed by the newspapers in July 1995, compelling the developer of the projects to create an index describing the withheld documents and offering specific justifications for nondisclosure under the Right-to-Know Law. The index, known as a Vaughn index, was developed by federal courts to assist judges and requesters in federal freedom of information cases involving large numbers of documents.

After rejecting three attempts to produce an index that contained sufficient legal and factual information to enable the court to adequately review whether the documents could properly be withheld, the trial court ruled that the developer had, for the most part, failed to comply with its order and ordered summary disclosure of most of the indexed documents.

On appeal, the high court found that the authority, although independent of the state government in some respects, performs the essential government function of providing safe and affordable housing to elderly and low-income residents, and is therefore a state authority subject to the Right-to-Know Law.

The trial court did not err when it ordered preparation of a Vaughn index, the Supreme Court ruled. The high court said it adopted the use of a Vaughn index, which was developed under the federal law for federal Freedom of Information requests only, under the theory that the aim of the index is to maximize disclosure of public documents — a purpose that is consistent with the aims of the state Right-to-Know Law.

Such an index is useful, the court recognized, because it provides the requester with information on which to argue its interest in disclosure and enables the trial court to make an informed ruling on the applicability of exemptions.

The Reporters Committee for Freedom of the Press had filed an amicus brief in support of the newspapers, urging the Supreme Court to permit the use of a Vaughn index when a state government body refuses to disclose a large number of documents under the Right-to-Know Law. (Union Leader Corp. v. New Hampshire Housing Finance Authority; Media Counsel: Gregory Sullivan, Manchester)