September 17, 2018
Author: Mark T. Broth, Esquire
Organization: Drummond Woodsum
I. PERSONNEL FILE ACCESS
A. Access Generally
Under New Hampshire law, employees have the right to review their “personnel file.” New Hampshire RSA 275:56 states:
Employee Access to Personnel Files.
I. Except as provided in paragraph III, every employer shall provide a reasonable opportunity for any employee who so requests to inspect such employee's personnel file and further, upon request, provide such employee with a copy of all or part of such file. An employer may only charge the employee a fee reasonably related to the cost of supplying the requested documents.
II. If, upon inspection of his personnel file, an employee disagrees with any of the information contained in such file, and the employee and employer cannot agree upon removal or correction of such information, then the employee may submit a written statement explaining his version of the information together with evidence supporting such version. Such statement shall be maintained as part of the employee's personnel file and shall be included in any transmittal of the file to a third party and shall be included in any disclosure of the contested information made to a third party.
III. The provisions of this section shall not require the disclosure of:
(a) Information in the personnel file of a requesting employee who is the subject of an investigation at the time of his request if disclosure of such information would prejudice law enforcement; or
(b) Information relating to a government security investigation.
IV. Health, fitness, lifestyle, and other information obtained from employees by their employer or the employer's agents for purposes of providing employees with a health risk assessment or other wellness program shall not be considered personnel records, shall not be retained in an employee personnel file, and shall be inadmissible in any proceedings under RSA 281-A.
RSA 275:56. By this statute, if an employee requests to review his or her personnel file, an employer must provide that employee with a reasonable opportunity to do so. During this review, employers should take steps to monitor the employee to ensure that the file is not altered, added to or destroyed. One step an employer can take is to number the pages of the personnel file prior to providing a copy of the file to an employee. By numbering the pages, the employer can avoid any future claim that they did not provide the entire personnel file to the employee. Another step an employer can take is to personally supervise the file review.
Also pursuant to this statute, an employer must provide a copy of all or part of the file to the employee, if requested. The employer may charge the employee a fee reasonably related to the cost of supplying the requested documents.
Finally, any information obtained pursuant to an employer’s wellness program is not considered part of the personnel file and should be maintained separately from any personnel records.
B. Definition of Personnel File
RSA 275:56 does not expressly define “personnel file” or what documents are included in a “personnel file.” However, the access granted by RSA 275:56 is not unlimited. The statute excludes disclosure of information related to an on-going investigation, if the information would prejudice law enforcement or if the information relates to a government security investigation.
The New Hampshire Department of Labor defines “personnel file” as: Lab 802.09 \"Personnel file\" as used in RSA 275:56 means any personnel records created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports and performance assessments, whether maintained in one or more locations, unless such records are exempt from disclosure under RSA 275:56, III or are otherwise privileged or confidential by law. The term does not include recommendations, peer evaluations or notes not generated or created by the employer.
N.H. CODE ADMIN. R. ANN., Dept. of Labor, 802.09 (2014). By this regulation and various court decisions, the general rule is that an employee must be given access to those documents kept by the employer in the normal course of business that pertain to employees. See Pivero v. Largy, 143 N.H. 187 (1990); Rix v. Kinderworks Corp., 136 N.H. 548 (1992). These documents would include: employment applications, correspondence, internal evaluations, disciplinary documentation, payroll records, injury reports, and performance assessments. As stated in the DOL definition, however, “personnel records” specifically exclude recommendations, peer evaluations and notes not generated by the employer. Employers may also exclude any privileged or confidential information, such as correspondence and other documents obtained from their attorney. Privilege and confidentiality issues can be complicated and employers are encouraged to consult their employment attorney with questions.
C. Definition of Employee
RSA 275:56 generically authorizes an “employee” access to his or her personnel file. While the statute does not expressly define the term “employee,” the New Hampshire Supreme Court has found it applies to current and former employees. In Rix v. Kinderworks, Corp., 136 N.H. 548 (1992), the New Hampshire Supreme Court held that RSA 275:56 entitles former employees access to their personnel file. The court reasoned that both former and current employees need the statute’s protection. Id. at 550- 51. Moreover, if the statute did not apply to former employees, an employer could “freeze access to the contents of an employee’s personnel file simply by firing that employee.” Id. at 551. The court determined that this result would be “illogical.” Id.
II. INTERNAL AFFAIRS
Documents relating to internal investigations present a unique problem under New Hampshire law, as employers often attempt to protect complainant and witness confidentiality. The rule is that internal investigations do not need to be disclosed pursuant to RSA 275:56 in cases where no disciplinary action has been taken, because the investigation has not become part of a particular “personnel file.” That is, if the employee is not disciplined as a result of an investigation, there is no reason to include the investigation in the employee’s file. However, it is an open question as to whether the investigative files must be disclosed as a “personnel file” in cases where disciplinary action actually takes place.
In Pivero v. Largy, 143 N.H. 187 (1998), the Nashua Police Department investigated a citizen’s misconduct complaint of a police officer. The department concluded that the complaints were unfounded and allowed the officer to review the investigatory file, but refused his request to copy the file. Some months later, the department discussed with the officer some concerns raised about his professional conduct, but the department did not discipline him. A letter summarizing the meeting was placed in the officer’s personnel file. The officer filed a union grievance, arguing that the letter’s presence constituted discipline as it sullied his reputation. The department removed the letter based on the officer’s grievance.
At that point, the officer filed suit claiming a right to a copy of his personnel file, including the investigatory file, pursuant to RSA 275:56. He argued that the letter’s inclusion, albeit brief, in his personnel file entitled him to the investigatory file. The trial court agreed, but on appeal the Supreme Court reversed. The Supreme Court found that the investigatory records were not “personnel” documents as defined by RSA 275:56 and Department of Labor regulations. The court reasoned that the officer was not disciplined for the citizen complaints, thus the investigatory records were not related to any personnel action or his employment. The court determined that the officer’s employment was not affected unless the department initiated the disciplinary process. However, the court reserved judgment on whether the officer then would be entitled to the investigative file.
In the unionized private sector context, the employer’s duty to supply information to an employee during the grievance process turns on a case's individual circumstances. The grievant’s need for relevant information is balanced against the employer’s substantial confidentiality interests. See Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). This factual inquiry has led to different results. For example, the National Labor Relations Board (“NLRB”) has held that a grievant was not entitled to witness statements or non-eyewitness opinions, comments, or recommendations contained in an investigatory file. U.S. Postal Service, 305 N.L.R.B. 997 (1991). See also Anheuser- Busch, 237 N.L.R.B. 982 (1979) (same). However, the NLRB also has ordered the production of a company investigatory file. Jersey Bell Telephone Co., 300 NLRB 42 (1990), enforced, 936 F.2d 144 (3d Cir. 1991).
Ultimately, the answer is unclear whether investigatory records must be disclosed once an employee is disciplined. The lesson is that public employers should prepare investigatory material with care and under the assumption that it may be disclosed in the future.
A. NON-PUBLIC SESSIONS
New Hampshire’s Right-to-Know Law, RSA Chapter 91-A, requires that most meetings of state and local boards, commissions, agencies, authorities (collectively referred to as “authority”) and some non-profit organizations be open to the public. See RSA 91-A:1; 91-A:2. This includes “meetings” held by telephone or another electronic means of communication allowed under RSA 91-A:2, III. There are a number of exceptions to this general requirement that relate to employees, including meetings concerning collective bargaining negotiations or strategy, and consultations with legal counsel. RSA 91-A:2. There are no special procedures necessary to satisfy these two exceptions. See id.
Other exceptions require the authority to follow certain procedure when holding a nonpublic session. RSA 91-A:3,I states the requirements:
(a) Public bodies shall not meet in nonpublic session, except for one of the purposes set out in paragraph II. No session at which evidence, information, or testimony in any form is received shall be closed to the public, except as provided in paragraph II. No public body may enter nonpublic session, except pursuant to a motion properly made and seconded.
(b) Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session. The vote on any such motion shall be by roll call, and shall require the affirmative vote of the majority of members present.
(c) All discussions held and decisions made during nonpublic session shall be confined to the matters set out in the motion.
RSA 91-A:3, I. Several exemptions in Paragraph II of RSA 91-A:3 relate to employees. An authority can enter a nonpublic session to decide whether to hire a public employee and to discuss pending claims or litigation. RSA 91-A:3, II (b) and (e).
Moreover, Paragraph II (a) states that a nonpublic session can be held for the following reasons:
The dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him . . .
RSA 91-A:3, II (a). Paragraph II (a), however, states that the session must be made public if the public employee (1) has a right to a public meeting and (2) requests that the meeting be made public. RSA 91-A:3, II (a). Only certain public employees are entitled to a public meeting. This entitlement will be discussed below in the next section. Paragraph II (a) also presents a trap for the unwary. An authority utilizing Paragraph II (a) to hold a nonpublic session must provide advance notice to the public employee prior to the meeting. This requirement is not readily apparent in the statute’s language, but is court mandated.
In Johnson v. Nash, 135 N.H. 534 (1992), the Middleton board of selectmen held a public meeting to discuss various town issues. The publicly posted agenda indicated that the “selectmen may go into [nonpublic] session,” but made no topical reference of this session. At the public meeting, the selectmen voted to adjourn to non-public session to discuss the termination of Middleton’s police chief. Approximately 10 minutes later, the selectmen returned to the public meeting and voted to terminate the police chief. The chief challenged the termination in court, arguing that he should have received advanced notice of the nonpublic session so that he could demand a public hearing under Paragraph II (a) of RSA 91-A:3. The trial court agreed and so did the New Hampshire Supreme Court.
The court found that Paragraph II (a) “is grounded in a legislative concern for protecting the public employee from improper official conduct by compelling the government to make public the considerations on which its actions are based.” Johnson, 135 N.H. at 537 (citation and quotations omitted). Moreover, the court found:
[A]n employee’s right to compel public discussion of his or her
termination is rendered meaningless if the employee does not get
an opportunity to exercise this right. Because it would be
unreasonable to expect public employees to attend every public
meeting in which their termination could conceivably be
considered, we hold that under [Paragraph II(a)], a government
body may not move to go into [nonpublic] session for the purpose
of considering the termination of a public employee unless it has
previously put that employee on notice that such a motion would
be made. Id. at 537-38 (emphasis added).
III. RIGHT TO A HEARING
New Hampshire law provides certain employees with a right to a hearing either before or after various employment actions. Generally, rank-and-file employees are not entitled to a hearing prior to or after an employer personnel decision, unless the parties’ collective bargaining agreement provides otherwise. However, as discussed in the previous section, some public employees have a statutory entitlement to a public hearing prior to certain personnel actions.
A. Police
Any permanent constable or police officer of a town, city village, or district elected pursuant to RSA 41:47 or appointed pursuant to RSA 105:1 may be removed only for cause and after notice and a hearing. RSA 41:48.
Any state police employee is entitled to notice and public hearing prior to a termination or demotion. The employee must request the hearing within 10 days of receiving the notice. RSA 106-B:5.
Subject to any formal written policies adopted by the appointing authority, an appointed police chief may be terminated or suspended without pay only for cause and after receiving written notice of the reasons for the action. The chief is entitled to request a public hearing on the merits in superior court within 10 days of the suspension or dismissal. RSA 105:2-a.
B. Fire
RSA 47:9 provides a city with the power to appoint a fire chief and deputy chief. The city may remove the appointees only for “just cause and after [a] hearing with reasonable notice in writing of the charges against the appointee.” RSA 47:9. Similarly, RSA 154:5 provides notice and hearing requirements for selected fire officials. RSA 154:5 only applies if the town, village, city, precinct or area specifically adopts the section at an annual meeting by an article in the warrant. Subject to any procedures or policies adopted by the appointing authority, a fire chief, engineer or chief fireward “shall be subject to a suspension or dismissal only for cause and after he or she has been presented with a written specification of the reasons.” RSA 154:5, II. The fire chief, engineer or chief fireward is entitled to a hearing in superior court, provided he or she petitions the court within 10 days of the suspension or dismissal. Id.
C. Libraries
Public library employees cannot be discharged or removed from office except for malfeasance, misfeasance, inefficiency, or incapacity or unfitness to perform their duty. The library must give the employee not less than 15 days nor more than 30 days notice prior to the discharge date. The notice must contain a statement of the grounds and reasons for the termination. The employee may request a public hearing within 30 days of receiving the notice and the hearing must be held within 30 days of the request. RSA 202-A:17
D. Classified Service Employees
No state classified service employee may be terminated for holding a remunerative elected public office prior to a hearing before the personnel appeals board. RSA 21-I:52
E. County Employees
County commissioners must adopt rules and procedures governing the discharge, removal, or suspension of county employees. A collective bargaining agreement (“CBA”) prevails over any procedures adopted by the county and over the following hearing and notice requirements. If there is no CBA, a county employee with one year of service may only be terminated or suspended for the following reasons: dishonesty, intoxication, immoral behavior or other misconduct, neglect of duty, negligence, willful insubordination, lack of cooperation, inefficiency, incapacity or unfitness for duty, or for the good of the institution assigned.
Prior to the discharge of the employee, the county must provide the employee with notice of the grounds and reasons for the termination, signed by a majority of the county commissioners. The county must provide the notice not less than 10 days nor more than 30 days prior to the effective date of the termination. An employee may be suspended for up to 10 days without prior notice. The employee may request a public hearing within 30 days of receiving the termination notice or within 10 days of the first day of a suspension. The notice and hearing provision requirements do not apply if the employee’s position was eliminated or he or she was terminated due to an organizational change, lack of work or insufficient funds. RSA 28:10-a.
F. Department of Corrections
The same restrictions outlined with regard to county employees apply to superintendents, officers and employees of the Department of Corrections appointed by county commissioners. RSA 30-B:5
G. Teachers
A teacher may not be terminated prior to the expiration of his or her employment term unless notified of the cause of the termination and an opportunity for a full and fair hearing. RSA 189:13.
H. Others
New Hampshire law prescribes removal and suspension procedures for a myriad of other positions. See, e.g., RSA 41:12 (removal of collector, clerk or treasurer); RSA 41:16-c (removal of town clerk); RSA 41:26-d (removal of treasurer). Accordingly, public employers are encouraged to review the law and/or consult with an attorney prior to dismissing or suspending a public employee.
I. Cases of Note
1. Ettinger v. Town of Madison Planning Board, 162 N.H. 785 (2011): The Court found that the Town of Madison Planning Board violated RSA 91-A when it convened a meeting and entered non-public session for the purpose of discussing memoranda and correspondence from legal counsel without legal counsel present. The Court held that these discussions did not qualify as “consultation with legal counsel” because legal counsel was not present or available to discuss same and, therefore, the discussions should have been held in public session.
The Court further found that the requirement that the Board maintain an open public session when discussing certain written advice and documents from legal counsel was not inconsistent with the principles of attorney-client privilege and that the confidential legal documents would be protected from public disclosure under RSA 91-A:4 and 91-A:5.
2. Premium Research Services v. New Hampshire Department of Labor, 162 N.H. 741 (2011): pursuant to RSA 281-A:21-b, proceedings and records of the DOL pertaining to workers’ compensation cases are exempt from public disclosure.
3. Union Leader Corp. v. New Hampshire Retirement System, 162 N.H. 673 (2011): Court holds that disclosure of names of and retirement benefits paid to public employees is not a violation of any expectation of privacy under RSA 91-A:5.
4. Mans v. Lebanon School Board, 112 N.H. 60 (1972): names and salaries of public employees not exempt from disclosure under RSA 91-A:5.
IV. ELECTRONIC COMMUNICATION
During the regular or business hours of all public bodies and public agencies, the public has a right to inspect and copy all non-exempt governmental records in the possession, custody, or control of the body or agency. RSA 91-A:4, I. Public bodies and public agencies are to maintain their public records in a way that makes them available to the public. NHCLU v. City of Manchester, 149 N.H. 437 (2003).
A. What is a Governmental Record?
“Governmental records” means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term “governmental records” includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside meeting of the body. The term “governmental records” also shall include the term “public records.” RSA 91-A:1-a, III.
“Information” means knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form. RSA 91-A:1-a, IV.
Case law provides that the term “public record” refers to specific pre-existing files, documents or data in an agency’s files, and not to information which might be gathered or compiled from numerous sources. Brent v. Paquette, 132 N.H. 415, 426 (1989). Documents or data which are covered by statutory or common-law privileges or exclusions are excluded from the definition of “public records.” See RSA 91-A:4, I (referring to statutory exclusions). Some, but not all, of these privileged and excluded records are included among the exemptions specified in RSA 91-A:5, e.g., medical treatment records. If you question whether a document is a public record, you should consult your legal counsel.11
The requirement that to be a governmental record, information must be created, accepted or obtained by a public body or public agency “in furtherance of its official function” should be carefully considered as public bodies and agencies establish electronic records retention plans that comply with the record preservation requirements of the Right-to-Know law. Courts have not yet had occasion to address the proper application of the distinction between records created, accepted, or obtained where this was not done in furtherance of the public body or public agency’s official function.
Spam or junk e-mail received and incidental personal messages sent or received via email, such as chat, instant messages or other forms of electronic communication, are unlikely to be deemed governmental records, as they are not received in furtherance of an official function. However, if the e-mails are analyzed for evidence of abuse of the governmental e-mail system, particularly if they end up being used as evidence in a personnel action, they likely would then be considered a governmental record. Since the adoption of the “in furtherance of the official function” requirement in 2008, the courts have not had occasion to rule on whether such non-business e mails are governmental records.
In light of the 2008 and 2009 clarifications of the Right-to-Know law and its application to electronic records, public bodies and public agencies should review their computer/e-mail system use, the sections of their employee handbooks covering e-mail and web usage, and record retention policies and practices with legal counsel to ensure appropriate use and retention. Memorandum from Attorney General on New Hampshire’s Right-to-Know: RSA Chapter 91-A (July 15, 2009) (on file with New Hampshire Department of Justice), available at http://www.doj.nh.gov/civil/publications.htm.
V. EMPLOYEES ELECTING PUBLIC SESSION
The hearing and notice requirements for certain public employees are essentially procedural due process rights that have been provided by the legislature. At its most basic level, procedural due process requires notice to the employee and the opportunity to be heard. However, once the public employee receives notice and exercises his or her right to be heard, the public employer must ensure that certain procedural safeguards are in place to guarantee a fair hearing.
RSA Chapter 43 governs most removal or suspension hearings for local government employees. RSA 43:2 requires 14 days advance notice of the hearing’s subject matter, time and place. This notice must be given to all interested parties, posted in one of the town’s most public places and given to the town clerk. RSA 43:3. Some commentators suggest that the hearing should include: (1) the right to confront adverse witnesses; (2) oral argument and presentation of evidence; (3) cross-examination of witnesses; (4) the right to retain an attorney; and (5) a determination based solely on the evidence and arguments at the hearing. 13 PETER J. LOUGHLIN, NEW HAMPSHIRE PRACTICE, LOCAL GOVERNMENT LAW, ch. 14 § 429 (Michie 1995). However, RSA 43:4 only requires that all parties be heard, the opportunity to be examined by the adverse party. The authority’s decision must be in writing and filed and recorded with the town clerk, along with the petition for hearing, order of notice and evidence of service. RSA 43:4. The written decision must also contain sufficient findings of fact such that a reviewing court can properly determine if the decision was appropriate. See generally Foote v. State Personnel Comm’n, 116 N.H. 145 (1976).
Moreover, no selectman or other officer should take part in any hearing if they would be disqualified to sit as a juror. RSA 43:6. Further, hearing officers are prohibited from having ex-parte communications with the involved parties, whether directly or indirectly. RSA 541-A:36. For example, the chief of police cannot provide a selectman with a detailed description of a police officer’s alleged misconduct prior to a hearing. The chief, however, could state generically that the officer requested a hearing to dispute his suspension for violating a particular police procedure.
11The interpretation of the Right-to-Know law is decided ultimately by the New Hampshire Supreme Court, which resolves questions regarding the law with a view toward providing the utmost information, in order to best effectuate the statutory and constitutional objectives of facilitating access to all public documents. Thus, while the statute does not provide for unrestricted access to public records, provisions favoring disclosure are broadly construed and exemptions are interpreted restrictively. Union Leader Corp. v. New Hampshire Hous. Fin. Auth., 142 N.H. 540 (1997).