Privacy–Public Interest Balancing and In-Camera Review Under New Hampshire’s Right-to-Know Law

Introduction

In Laurie A. Ortolano v. City of Nashua, 2025 N.H. 2 (Apr. 2, 2025), the New Hampshire Supreme Court clarified the procedures and standards governing disclosure of police interview recordings and transcripts under the State’s Right-to-Know Law (RSA chapter 91-A). Laurie Ortolano, a citizen seeking records related to her property‐value challenge and an internal investigation of Department employees, sued the City of Nashua for withholding surveillance footage, field data cards, and audio/video recordings of police interviews. The Superior Court ordered full disclosure and awarded attorney’s fees. The City appealed only the orders requiring disclosure of the interview recordings/transcripts and the fee award.

The Supreme Court reversed in part, vacated in part, and remanded, holding that:

The trial court must conduct an in-camera review of the police interview recordings and transcripts and perform a fact-specific privacy‐public interest balancing under RSA 91-A:5, IV before ordering disclosure.
The City did not necessarily “know or should have known” its non-disclosure violated RSA chapter 91-A, so the attorney’s-fees award must be reconsidered.

Summary of the Judgment

The Supreme Court’s order addressed two main issues:

Disclosure of Police Interview Recordings/Transcripts The trial court had ruled that privacy interests in those records did not outweigh the public interest in disclosure and ordered them released (or transcripts if footage was unavailable). On appeal, the Supreme Court held that because the trial court never reviewed the disputed recordings/transcripts in camera, the record was insufficient to balance privacy against public access. It reversed that portion of the order and remanded for the required in-camera review and privacy balancing.
Attorney’s Fees Award Under RSA 91-A:8, a court may award fees if a public body “knew or should have known” it was violating the statute. The Supreme Court concluded that, given genuine privacy interests in surveillance and interview recordings, the City could reasonably have believed its non-disclosure was lawful. It reversed the fee award in part (surveillance footage and field data cards) and vacated it in part (interview recordings/transcripts), remanding for further proceedings.

Analysis

Precedents Cited

Reid v. N.H. Attorney Gen. (169 N.H. 509, 529–31 (2016)) – Held that witnesses in police investigations have privacy interests in identifying and substantive interview content; required fact-specific balancing before disclosure.
N.H. Right to Life v. Dir., Charitable Trust Unit (169 N.H. 95, 101, 110–11, 113–14 (2016)) – Established narrow construction of exemptions, three-step privacy test, and remand when record insufficient.
Brown v. Grafton County Dept. of Corr. (177 N.H. ___, 2025 N.H. 2) – Reinforced heavy burden on public entity to justify nondisclosure and necessity of in-camera review to assess privacy harm.
Ettinger v. Town of Madison Planning Bd. (162 N.H. 785 (2011)) – Clarified that fees require prior guidance from Supreme Court on the precise issue before knowing “should have known” standard applies.
Federal FOIA cases (e.g., Sherman v. U.S. Dept. of Army, 244 F.3d 357 (5th Cir. 2001)) – Guided interpretation of privacy waiver principles under RSA 91-A by analogy to FOIA Exemptions 6 and 7(C).

Legal Reasoning

The Court applied a well-established three-step framework for RSA 91-A:5, IV (privacy exemption):

Determine whether disclosure would invade a recognized privacy interest (identifying and substantive information in interviews qualifies).
Ascertain the public interest in disclosure (facilitating transparency in government operations).
Balance competing interests: the individual’s privacy and the public body’s nondisclosure interest against the public’s right of access.

Because the trial court never examined the interview recordings/transcripts in camera, it lacked a sufficient factual basis to weigh privacy harms (e.g., facial identification, reputational damage) against transparency. The Supreme Court emphasized that exemptions must be construed narrowly, and a public body bears the “heavy burden” of justifying nondisclosure. On the fee issue, the Court observed that a reasonable uncertainty about privacy rights in novel circumstances defeats a “should have known” finding, barring automatic sanctions.

Impact

This decision will have significant consequences:

It cements the necessity of in-camera review whenever privacy exemptions under RSA 91-A:5, IV are invoked for sensitive records (e.g., audiovisual materials).
It clarifies that public bodies face a heightened evidentiary burden to describe specific privacy harms and that general assertions are insufficient.
It limits fee awards where the legal landscape is unsettled, incentivizing public bodies to seek clarifying guidance rather than risk automatic sanctions.
It provides a roadmap for litigants and courts on applying the three-step privacy balancing test and delineates when remand is appropriate for additional fact finding.

Complex Concepts Simplified

In-Camera Review: A confidential examination of disputed records by the judge alone to assess content and privacy implications before deciding whether to order public disclosure.
Three-Step Privacy Balancing Test: 1. Identify any privacy interests;
2. Determine the public interest in disclosure;
3. Weigh them against each other to decide if the exemption applies.
“Knew or Should Have Known” Standard: For fee awards, a public body must have actual knowledge—or clear precedent—that its conduct violated the Right-to-Know Law.
Preliminary Draft Exception (RSA 91-A:5, IX): Exempts preliminary, working documents (e.g., field data collection cards) to protect internal deliberations, subject to narrow interpretation.

Conclusion

Laurie A. Ortolano v. City of Nashua refines New Hampshire’s Right-to-Know jurisprudence by (1) mandating in-camera review for sensitive audiovisual records before privacy balancing; (2) reaffirming the heavy burden on public bodies seeking nondisclosure; and (3) circumscribing fee awards where statutory obligations were not definitively clear. This decision ensures that privacy exemptions do not swallow the presumption of public access, while also preventing penalization of public entities when novel legal questions arise. It will guide future litigants and courts in achieving a fair, fact-driven balance between transparency and privacy.