STATE OF NEW HAMPSHIRE GRAFTON, ss.

SUPERIOR COURT Docket No. 05-E-383 Frederick J. Murray.

v. Special Investigation Unit of the Division of State Police of the New Hampshire Department of Safety; Grafton County Sheriff's Department; Grafton County Attorney's Office; New Hampshire Attorney General Kelly A. Ayotte; New Hampshire Governor John J. Lynch; Hanover Police Department; Director of the Division of State Police of the New Hampshire Department of Safety; Commander of the State Police Troop F in Twin Mountain; Troop F of the New Hampshire State Police in Twin Mountain; New Hampshire Fish and Game Department Region 2; and Historic Case Unit in Major Crimes of the Division of State Police of the New Hampshire Department of Safety MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY INJUNCTION I. INTRODUCTION The Petitioner in this action is Frederick J. Murray (hereinafter "Murray" or "Petitioner"). The Petitioner contends that the Respondents have each violated the New Hampshire Right-toKnow Law, NH RSA 9l-A (hereinafter "Right-to-Know Law" or "RSA 9l-A"), as well as its Federal counterpart, the Freedom of Information Act (hereinafter "FOlA"), by wrongfully denying his requests to review and obtain copies of non-privileged records and other information regarding the circumstances relating to the disappearance of his daughter, Maura Murray (hereinafter "Maura"). As explained more fully below, the Petitioner can demonstrate the appropriate criteria for obtaining injunctive relief, warranting the issuance of an injunction against the named Respondents.

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II.

STATEMENT OF FACTS For convenience, the Petitioner adopts herein by reference the Statement of Facts set

forth in the Bill in Equity filed concomitantly with this Memorandum of Law. All references to facts in this Memorandum will be to the facts as set forth in the Bill in Equity.

III.

ARGUMENT A.

Access to Records

The salutary purpose of New Hampshire's Right-to-Know Law, RSA 91-A is to "ensure ... the greatest possible public access to the actions ... and records of all public bodies ... " Lodge v. Knowlton, 118 N.H. 574, 575 (I 978)(quoting RSA 91-A: I (Supp.1977). "Openness in the conduct of public business is essential to a democratic society. The purpose of this [law] is to ensure both the greatest possible public access to the actions, discussions and records of public bodies, and their accountability to the people." RSA 91-A:I (1990). The Statute's purpose is grounded in the Bill of Rights to the New Hampshire Constitution which provides in pertinent part: "The public's right of access to governmental proceedings and records shall not be unreasonably restricted." Lodge, 118 N.H. at 575, quoting N.H. CONST, PI. I, Art. 8. While the Right-to-Know Law does not provide unfettered access to public records, the New Hampshire Supreme Court has consistently determined that the provisions favoring disclosure should be broadly construed while the exemptions to disclosure should be interpreted restrictively. Union Leader Com. v. N.H. Housing Finance Authority, 142 N.H. 540 (1997) ( ... "purpose of [RSA 91-A] is to provide the utmost information to the public about 'what the government is up to.''') quoting, EPA v. Mink, 410 U.S. 73, 105 (1973). The Right-to-Know Law governs any and all requests for records served upon a public agency or entity that is covered under the provisions ofRSA 91-A. There is no requirement that

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the requesting party show any kind of standing in order to obtain the records or reveal the reason for which the information is being sought. See generally, Union Leader Corp. v. City of Nashua, 141 N.H. 473 (1996). The determination for disclosure centers on whether the public is entitled to the information requested and not on whether the records should or should not be disclosed to the particular person making the request. Mans v. Lebanon School Board, 122 N.H. 160, 162 (1972). " ...Right-To-Know Law 'gives any member of the public as much right to disclosure as one with a special interest in a particular document, [United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989)], and accordingly 'the motivations of .. any member of the public are irrelevant to the question of access.. '" Union Leader, 141 N.H. at 476, quoting Petition of Keene Sentinel, 136 N.H. 121, 128 (1992). RSA 91-A:4 was created to foster accountability of the govemment to the "people" and the "public" and promote the principles of a democratic society. Mans, supra. Therefore, in most cases disclosure is required.

In this case, the Petitioner has made an appropriate request for public records maintained by the respective Respondent Agencies, however, the Respondents have refused to disclose those records on the claimed basis of exemptions under RSA 91-A:5. As set forth herein, the exemptions cited by the Respondents are inapplicable to many, if not all of the requests made, and therefore, an injunction ordering the release of records held by the Respondents is warranted.

B.

Injunctive Relief

The right to seek injunctive relief stemming from an improper denial of records by a agency or official covered by the Right-to-Know Law is codified under the Statute: Any person aggrieved by a violation of [RSA 91-A] may petition the superior court for injunctive relief. The courts shall give proceedings under this chapter priority on the court calendar. Such a Petitioner may appear with or without counsel. The petition shall be deemed sufficient ifit states facts constituting a violation of this chapter, and may be

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filed by the Petitioner or his counsel with the clerk of court or any justice thereof. Thereupon the clerk of court or any justice shall order service by copy of the petition on the person or persons charged. When any justice shall find that time probably is of the essence, he may order notice by any reasonable means, and he shall have a,uthority to issue an order ex parte when he shall reasonably deem such an order necessary to insure compliance with the provisions of this chapter. NHRSA91-A:7. Normally, a party seeking injunctive relief is required to demonstrate the following four elements in order to obtain a preliminary injunction: (a) the probability of success on the merits; (b) the public interest served in granting the injunction; (c) the significance of the threat of

irreparable harm to the Petitioner; and (d) the balance ofharrns on the Petitioner and the Respondent. See Unifirst Corp. v. City of Nashua, 130 N.H. 11, 14-15 (1987); Kukene v. Genualdo, 145 N.H. 1,4 (2000). However, in order to obtain injunctive relief under RSA 91-A, the moving party need only demonstrate that: 1) a request for public records had been made; and 2) a public body failed to comply with the statute by wrongfully failing to provide such records. See RSA 91-A:7. 1.

The Petitioner has Made Requests for Public Records to Officials and Agencies Subject to the Right-to-Know Law.

A party seeking disclosure of records must first demonstrate that a request was made to an agency, entity or public official covered under the Right-to-Know Law. Here, the Petitioner has made numerous written requests pursuant to RSA 91-A:4 to the named Respondents in this action seeking copies of any and all non-privileged records pertaining to the disappearance of his daughter, Maura. A true copy ofthe requests are annexed to the Bill in Equity. Although not required by the Statute, each of the requests provided by the Petitioner contained a reference to the Right-to-Know Law and/or FOIA.

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The New Hampshire Supreme Court has determined that FOIA is similar in kind to RSA 91-A and the Court has followed decisions interpreting FOIA when considering whether a request for public records, specifically law enforcement investigation records, should be granted. See Lodge, 118 N.H. at 576-77. The New Hampshire Supreme Court has determined that RSA 91-A applies to "aU State executive branch agencies and departments" including "[a]ny board or commission of any state agency or authority." Id. at 574; Union Leader v. N.H. Hous. Fin. Auth., 142 N.H. at 547 (quoting RSA 91-A: I-a, III). Since the named Respondents all fail under one of the enumerated categories of "executive official, agency or board or commission of the same," they are all mandated to comply with the strictures of the Statute. See generally, Lodge, supra; Hopwood v. Picket, 145 N.H. 207 (2000) (petitioners making claims for release of records maintained by the State Police Department); see also RSA 91-A:I-a, led) (statute applies to county and municipal boards, commissions, agencies and authorities); RSA 91-A:I-a, I(b) (statute applies to Governor and Governor's council). Therefore, there is no dispute that the Petitioner has satisfied the first prong warranting for relief under RSA 91-A:7. 2.

The Respondents have Wrongfully Denied the Petitioner's Requests for Records.

Turning to the specific requests submitted by the Petitioner in this matter, the remaining inquiry centers on whether the denial of the Petitioner's requests was justified.

The Statute

provides that public records, including investigative reports produced by law enforcement, must be produced unless they fall under one of the enumerated statutory exemptions ofRSA 91-A:5. The New Hampshire Supreme Court has consistently determined that requests for disclosure should be construed broadly while any claimed exemptions are to be applied narrowly. See Union Leader v. N.H. Hous. Fin. Auth., 142 N.H. at 546; Society for Protection of N.H. Forests v. Water Supplv and PoUution Control Comm'n., liS N.H. 192, 194 (1975). Moreover, the

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burden of proof is upon the public agency to establish the existence of a valid exemption to disclosure. See generally. Union Leader v. Nashua, supra. It is evident in this matter that the blanket denials issued by the Respondents are not compliant with the rigors of disclosure mandated by the Right-to-Know Law. The New Hampshire Supreme Court employs a balancing test which balances the benefits of public disclosure against the benefits of non-disclosure when considering whether an exemption has been properly invoked in response to a request for records. See Brent v. Paquette, 132 N.H. 415 (1989); Union Leader v. Nashua, 141 N.H. at 473; Goode v. New Hampshire Office of Legislative Budget Assistant. 145 N.H. 451 (2002). Before denying a request for public records, a public entity is similarly required to utilize a balancing test before simply issuing a denial. An entity raising an exemption must be able to justify the reasons the records were not released rather than simply invoking an exemption in order to circumvent the statute. Goode. supra. Blanket denials therefore, are rarely upheld. Applying the balancing test to the requests submitted in this matter it is evident that the wholesale denial of any records by each of the Respondents was improper and not in keeping with the public policy favoring the disclosure of records. See Menge v. Manchester, 113 N.H. 533,537 (1973); Lodge, 118 at 575; Union Leaderv. N.H. Hous. Fin. Auth., 142 N.H. at 546; Carter v. Nashua, 113 N.H. 407, 416 (1973). The plain language of the Statute itself provides in relevant part: "Openness in the conduct of public business is essential to a democratic society. The purpose of this [law] is to ensure both the greatest possible public access to the actions, discussions and records of public bodies, and their accountability to the people." RSA 91-A: 1. Therefore, New Hampshire courts are reluctant to uphold exemptions raised by governmental

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entities in response to proper requests made pursuant to the Statute. Society for Protection of N.H. Forests, 115 N.H. at 194; Mans, 112 N.H. at 162-63. A.

The Investigatory Exemption is Inapplicable for the Majority of the Records Requested.

The majority of the Petitioner's requests in this matter were denied on the grounds that the production called for confidential records created in the course of an investigation or would constitute an invasion of privacy. See Denials annexed to the Bill in Equity. The New Hampshire Supreme Court has interpreted requests for records that are investigative in nature under RSA 91-A by following decisional law interpreting the request for investigative records under FOlA. Lodge, 118 N.H. at 576. Under FOrA, investigative records compiled for law enforcement purposes must be produced unless they: (1) interfere with enforcement proceedings; (2) deprive a person of a right to a fair trial or an impartial adjudication; (3) constitute an unwarranted invasion of privacy; (4) disclose the identity of a confidential source, and in criminal proceedings, if they disclose confidential information supplied by a confidential source; (5) disclose investigative techniques and procedures; or (6) endanger the life or physical safety of law enforcement personnel. 5 U.S.C. § 552(b)(7). In this case, the Respondents have proffered that the requested records cannot be produced because disclosure would impermissibly interfere with enforcement proceedings or constitute an unwarranted invasion of privacy. These claimed exemptions are inapplicable in this case. The New Hampshire Supreme Court has noted "when we review exemptions from the Right-To-Know Law, we balance the public interest in disclosure of the requested information against the government interest in non-disclosure." Union Leader v. Nashua, 141 N.H. at 47576. Applying this test to the facts before the court, Murray's interest in disclosure is paramount to any interest the government may have in not disclosing the requested records. First, the

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claimed exemption regarding interference with enforcement proceedings can only be invoked if there is an actual ongoing investigation, Dickerson v. Department of Justice, 992 F.2d 1426, 1426 (6 th Cir. 1993) and the investigation is "active and continuing" with a high likelihood that an individual would be prosecuted for the crime and the disclosure of records regarding the same could jeopardize the integrity of the investigation. rd. The invocation of this exemption in this matter is misplaced for two reasons: 1) the police have not characterized the investigation into Maura's disappearance as criminal such that an impending arrest is likely which might jeopardize the investigation; and 2) the investigation does not appear to be ongoing. Shortly after Maura's disappearance the investigating authorities characterized Maura's case as a missing persons matter, not a criminal investigation. The authorities postulated that Maura: 1) disappeared of her own volition; 2) succumbed to the elements; or 3) committed suicide. Accordingly, if the law enforcement personnel do not characterize the investigation as criminal in nature the exemption challenging disclosure of the records predicated upon enforcement proceedings is inapplicable. The authorities have repeatedly maintained that they do not believe that Maura was the victim of foul play.

In addition the investigation does not appear to be ongoing. While the Respondents have assured Murray that they are continuing to follow up on leads and review documents and talk with witnesses, Murray has not been made aware of any specific efforts the governmental authorities have taken in pursuing this matter within the last several months. Considering that the police do not characterize the investigation as criminal but rather a missing person case or suicide, it is unclear what additional steps they would be employing. If the investigation has been concluded, Murray should be made aware of that fact, and any records pursuant to their

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investigation should be turned over to him so he can continue looking for information in the hopes of finding his daughter. The most compelling reason favoring disclosure in this case centers on the fact that Maura could very well still be in danger and disclosure of the information compiled by the authorities could help locate her. Although the governmental entities involved have continued to dispute this notion, Murray's familiarity with his daughter leads him to believe that it is likely that Maura was the victim of foul play and may even still be in danger, rather than simply went missing of her own accord. It has been more than a year and a half since Maura's disappearance, Despite reports that Maura had close relationships with many family and friends, as far as the Petitioner knows she has not made any attempts to contact any of them during this time. This supports the Petitioner's contention that she may have been a victim of foul play or abducted against her will. As in any other missing persons case, the more information that can be provided regarding reports of her disappearance and whereabouts, the greater the likelihood that Maura could be located, perhaps safely. B.

The Privacy Exemption is Inapplicable for the Majority of the Records Requested.

The Petitioner similarly disputes that the exemption based on protection of privacy is appropriate in this matter. A claim that records should not be disclosed based on the fact they interfere with the privacy of an individual will not be upheld if the denial would defeat the salutary purpose of91-A. See Mans, 122 N.H. at 162. See also, Ferguson v. Kelly, 455 F.Supp. 324,327 (N.D. Ill. 1978) citing Nix v. United States., 572 F.2d 998 (4 th Cir. 1978){proper analysis under privacy exemption is to balance public interest in disclosure of such information against the privacy invasion involved). There is no support that anyone's privacy is being protected by the Respondents' refusal to grant access to many of the records sought by the

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Petitioner and this is especially true where the case has been characterized as a missing person case rather than criminal. This being the case, there is no underlying concern that the release of information would implicate someone in connection with Maura's disappearance. The "invasion of privacy" exemption is invoked in cases where government officials are concerned about exposing individuals who are suspects in an ongoing investigation or keeping the identity of witnesses to such crimes from the public. See Union Leader v. Nashua, 141 N.H. at 473; see also Stem v. F.B.I., 737 F.2d 84, 91-92 (D.C. Cir. 1984) ("Individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity. Protection of this privacy interest is a primary purpose of [the FOrA] exemption 7(c) [which] recognizes the stigma potentially associated with law enforcement investigations and broader privacy rights to suspects, witnesses and investigators."); Halloran v. Veterans Admin., 874 F.2d 315, 323 (5

th

Cir. 1989). In the instant case, the governmental entities have consistently maintained that Maura was likely not the victim offoul play. Therefore, the investigation into Maura's disappearance, if it even continues, would not be focused on locating suspects or interviewing anyone who may have witnessed or provided information about any criminal activity; but instead would be focused on following up on leads pertaining to her whereabouts. Disclosure of this type of information does not implicate privacy concerns and any arguable privacy interests would certainly have to give way to the overriding public policy concern in favor of disclosure. "The balance between the public's interest in disclosure and a private citizen's interest in privacy will never be easy to strike. 'Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.'" Union Leader v. Nashua, 141 N.H. at 478, quoting Halloran, 874 F.2d at 319 (emphasis added).

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In this case, it is manifest that the agencies involyed failed to comply with the rigors of disclosure mandated by the Statute and instead issued blanket denials of the requests without articulating the basis for the denials. By way of illustration the Petitioner made request for the following information which the Respondents denied on the basis of claimed exemptions: I)

Vehicle accident reports requested from the Office of the Commander of the State Police Division of the New Hampshire Department of Safety and Troop F of the State Police in Twin Mountain;

2)

An inventory of items taken from the vehicle Maura was operating;

3)

The "computer read out" from Murray's black Saturn;

4)

An inventory of items provided voluntarily by the Murray family and other parties;

5)

Copy of the hard drive and documents from Maura's computer at the University of Massachusetts at Amherst;

6)

Documents pertaining to any areas searched by any agency;

7)

Documents pertaining to the identity of all officers and personnel involved in the search and investigation;

8)

Copies of any and all police reports concerning the initial search into Maura's disappearance;

9)

Statements from fact witnesses pertaining to sightings of Maura both prior and subsequent to the accident;

10)

Copy of the videotape from the ATM machine last used by Maura;

11)

Copy of the video surveillance from the liquor store where Maura purchased items just prior to her disappearance;

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12)

Copies of the 911 recordings and dispatches immediately prior and subsequent to Maura's disappearance; and

13)

Copies of results of tests and examinations of evidence which police have concluded are not relevant to Maura' s case. These identified requests are a composite of the types of records sought by the Petitioner

in this matter and do not include all of the records sought. Attached to the Bill in Equity are copies of the relevant record requests submitted by the Petitioner. In each instance the· Respondents have simply invoked that the records are either investigatory in nature or would constitute a violation of privacy without proffering any cognizable justification as to how the records fall into these exemptions. Specifically, the Respondents are unable to show any reason for withholding motor vehicle records related to the accident prior to Maura's disappearance. These types of records are routinely produced to the public and do not raise privacy concerns or create risks of compromising any investigation. Additionally, since Murray is the registered title holder of the vehicle, any information regarding the investigation into the accident should readily be produced to him. Similarly, any items the Respondents have in their possession as a result of cooperation by Maura's family and third parties should be readily produced to Murray. Those items produced voluntarily would not even be in the custody of the various entities without the cooperation of the Murray family and others trying to assist with the investigation. Many of these items may not have any significance to those officials and agencies holding them while Murray and other members of his family may be able to decipher valuable information to those investigating authorities if they are allowed access to this information. Disclosure of this

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infonnation, or at a minimum an inventory of the items could not possibly hann or compromise the investigation. C.

No other valid exemptions exist that would prohibit disclosure

In addition to the stated exemptions noted above, the Respondents have cited other objections to the disclosure of certain records. Specifically, the New Hampshire Department of Justice of the Office of the Attorney General denied Murray's request for infonnation based on the fact that it was made pursuant to FOIA which they state "does not apply to state agencies." The stated reason for denying the release of this requested infonnation is not only inapplicable but completely adverse to the policy behind RSA 91 :A. The Right-to-Know Law specifically does not require a person seeking public records to reference the Statute. Rather, it merely requires that a request for public records be made and be relatively specific in identifying what records are being sought. Ferguson, 455 F. Supp. at 326. While New Hampshire and the federal case law are silent on this exact point, there is little support for the Respondent's claim that the request must reference the statute itself in order for RSA 91:A to apply. D.

At a Minimum In Camera Inspection of the Records is Warranted

Assuming arguendo that the court [rods one of the claimed statutory exemptions might be applicable, outright denial of the requests is not warranted. The New Hampshire Supreme Court has detennined that courts confronted with a challenge to the withholding of records should at a minimum conduct an In Camera review of the documents reportedly exempt from disclosure before determining whether the exemptions are in fact applicable. Lodge, 118 N.H. at 577, citing Bell v. United States, 563 F.2d 484 (1 Sl Cir. 1977) ("Even National Security infonnation is at least reviewable by a judge In Camera to detennine if it should be exempt from public inspection"). The In Camera review serves as a check and balance to ensure records which are

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truly public are not withheld from disclosure under an improperly invoked exemption. Accordingly, should the court credit any of the claimed exemptions pertaining to certain records an In Camera review in the presence of counsel of the documents should be conducted to determine if the claimed exemption is valid. V.

REQUEST FOR RELIEF WHEREFORE, for the foregoing reasons, the Petitioner respectfully requests that this

Court grant his application for a preliminary injunction against the Respondents and issue an order requiring disclosure of the records sought by the Petitioner. Respectfully submitted, FREDERlCK J. MURRAY,

BY~

TJM~1437~

JOHN F. GALLANT (N.H.#6569) ERlCA GESING (N.H.#16843) GALLANT & ERVIN, LLC One Olde North Road, Suite 103 Chelmsford, MA 01824 (978) 256-6041 Fax: (978) 256-7977 Date:

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DO NOT REMOVE SHERIFY'S F;TURN ~~turn

GRAFTON, 12/22/2005

of Service

SS 11:50am

I summoned the within named HANOVER POLICE DEPARTMENT, by IN HAND service to NICHOLAS J. GIACCONE JR., CHIEF OF POLICE at 46 LYME RD, HANOVER, NH in said County, an attested copy of this BILL IN EQUITY, attested as such by Robert B. Muh, Clerk of the Superior Court for the County of Grafton of which the for going is a true copy.

FEES: Service: Mileage: Misc. : Postage & Handling

15.00 31. 50

TOTAL

47.50

1. 00

sese,BG,lfJ1112p

'111:38

DO NOT REMOVE

SHERIF~'S

R5TURN

Return of Service GRAFTON, 12/21/2005

SS 09:20am

I summoned the within named GRAFTON COUNTY SHERIFF'S DEPT., by IN HAND service to DOUGLAS R. DUTILE, SHERIFF at 3785 DARTMOUTH COLLEGE HWY, NORTH HAVERHILL, NH in said County, an attested copy of this BILL IN EQUITY, attested as such by Robert B. Muh, Clerk of the Superior is a true copy. Court for the County of Grafton of whi he Dept. FEES: Service: Mileage: Misc. : Postage & Handling

15.00 0.00

TOTAL

38.75

23.75

DO NOT REMOVE SHERIFF'S R2TURN Kecurn of Service GRAFTON, 12/21/2005

SS 12:06pm

I summoned the within named GRAFTON COUNTY ATTORNEY'S OFFICE, by IN HAND service to RICARDO ST. HILLIARE, COUNTY ATTORNEY at 3785 DARTMOUTH COLLEGE HWY, NORTH HAVERHILL, NH in said County, an attested copy of this BILL IN EQUITY, attested as such by Robert Muh, Clerk of the Superior ing is a true copy. Court for the County of Grafton of Wh~t~ fo

\JMC.

-;:;G":r::::a~f~t~o:':n'----;c;o=-u~nlt¥:~~~~~::-CD;:;-eC-p=t-.---Captain Paul C FEES: Service: Mileage: Misc. : Postage & Handling

15.00 0.00

TOTAL

16.00

1. 00