On June 21, 2019, the law firm Bernstein, Shur, Sawyer & Nelson, P.A. and the ACLU-NH filed a brief before the N.H. Supreme Court on behalf of Seacoast Newspapers, Inc. challenging a trial court's decision that an arbitrator's award to former Portsmouth police officer Aaron Goodwin was an “internal personnel practice” within the meaning of RSA 91-A:5, IV, and therefore was categorically exempt from disclosure without any examination into whether the public had a compelling interest in obtaining this information.
Former Officer Goodwin was fired from the Portsmouth Police Department in June 2015 for several violations related to his accepting a $2 million-plus inheritance from the late Geraldine Webber, an elderly Portsmouth resident with dementia. His inheritance was overturned the same year by Judge Gary Cassavechia, who found that Goodwin had unduly influenced Webber. Officer Goodwin petitioned for his job back and/or back pay, which resulted in the arbitration decision.
We believe that this arbitration award should be made available to the public. As a threshold matter, we argue that the trial court improperly characterized the arbitration award as a “personnel practice.” As federal case law makes clear, “personnel practices” is a term more properly understood to refer to rules, procedures and policies of a government agency pertaining to personnel matters, as distinct from the records that pertain to an individual’s employment. That is, “personnel practices” refer to matters of general applicability to human resources or employment. Accordingly, the arbitration award was not accurately characterized as a “personnel practice” by the trial court.
However, even if the arbitration award is an “internal personnel practice,” we argue that the trial court failed to determine whether disclosure would be appropriate by balancing the public interest in disclosure against any competing privacy interests. As the City or Portsmouth itself acknowledges, there is a compelling public interest in disclosure of the arbitration award. Nonetheless, the trial court failed to recognize this interest. Indeed, as many courts have held, a public employee disciplined by his employer does not have a privacy interest in the fact that he was disciplined. Even if such an interest existed, it would be far outweighed by the public’s compelling interest in knowing the details of the employee’s conduct and the manner in which the employing agency responded to it in a case that was widely reported in the press.
On May 29, 2020, in a historic decision for government transparency and accountability, the New Hampshire Supreme Court vacated the Superior Court decision and remanded the case back to the Superior Court. In this decision, the state Supreme Court overruled a case from 1993 that broadly allowed government agencies to withhold information under this "internal personnel practices" exemption. In this decision, the New Hampshire Supreme Court narrowed the scope of this exemption.
On remand, the City agreed to produce the arbitration award at issue, thus resolving the case.