N.H. high court rules fire marshal may withhold records under law enforcement exemption

The New Hampshire Supreme Court ruled yesterday that the state fire marshal may withhold certain records from a fire investigation under a judicially-created exemption from the Right-to-Know Law for records "compiled for law enforcement purposes." The opinion addressed the proper interpretation of this phrase, which the court noted was a matter of first impression.

A company called 38 Endicott Street North, LLC, sued the state fire marshal after being denied documents related to the marshal’s investigation of a 2010 fire at the company's business, the Wide Open Restaurant, Hotel and Saloon, located in Laconia.

State law does not specifically contain an exemption for such records, but one has been judicially recognized since 1978. In that case, the court looked to the preamble to the Right-to-Know Law, which establishes "the greatest possible" access to public records, and the state constitution, which provides that this right "shall not be unreasonably restricted." It then held that in determining what constitutes a public record, it should balance the public benefit in disclosure against the benefit in withholding.

The court applied the same test used by federal courts in evaluating exemptions for law enforcement records under the federal Freedom of Information Act. It referred to the state's version as the “Murray exemption” — named after the case in which it was adopted.

“In interpreting provisions of the New Hampshire Right-to-Know Law, we often look to decisions of other jurisdictions . . . including federal interpretations of FOIA,” wrote Judge Robert J. Lynn on behalf of a unanimous court.

As the court explained, under FOIA — and therefore under the Murray exemption — in order to avoid public release of allegedly exempt law enforcement records, a government agency must first establish that the requested materials were “compiled for law enforcement purposes.” If that initial threshold is met, the government must then show that one of six harms to law enforcement could result from releasing the relevant records.

The company unsuccessfully argued that the materials were not "compiled for law enforcement purposes" because the marshal is not a law enforcement officer, as he does not have the authority to make arrests.

The court responded, “the [Murray] exemption does not apply exclusively to law enforcement officers or agencies, but rather applies to all records and information compiled . . . for law enforcement purposes.”

The court first examined whether the fire marshal's office was "primarily a law enforcement agency," noting that federal courts have applied a lower standard for demonstrating a law enforcement purpose for such agencies. It ruled that the fire marshal’s office is a “mixed-function agency” because it is authorized by statute to perform some law enforcement functions, such as investigation of the circumstances of fires.

Therefore, the court adopted "the approach taken by most federal courts" with respect to a mixed-function agency, requiring the fire marshal's office to show the records were compiled pursuant to its law enforcement — and not administrative — functions. It ruled the marshal met this threshold requirement, as the withheld records “were compiled during an investigation into potential criminal wrongdoing pursuant to the Fire Marshal’s law enforcement duties and, therefore, were compiled for law enforcement purposes.”

The company was unsuccessful in persuading the court that the office had failed to show how the public disclosure of the requested documents would not interfere with potential enforcement proceedings. The court noted that it was not required that a future arrest or prosecution be certain or imminent, but rather only “reasonably anticipated.”

In so ruling, the court relied on an affidavit provided by a fire investigator that explained that he believed the investigation would lead to criminal charges, and the release of the records would interfere with the proceedings by, for example, revealing witness statements.

As the court found the affidavit's explanation of how releasing the records might harm the investigation to be sufficiently detailed, it declined to order the records released.

Attorney Friedrich Moeckel, who represented 38 Endicott Street North, LLC, declined to comment on the ruling. The state fire marshal's attorney could not be reached for comment.

Related Reporters Committee resources:

· New Hampshire – Open Government Guide: 2. Discussion of each exemption.

· Federal Open Government Guide: 7. Law enforcement records