Privileged Records Are Categorically Exempt; Original Payment Records Must Be Disclosed: Keene Publishing Corp. v. Fall Mountain Reg’l Sch. Dist. (2025)

Privileged Records Are Categorically Exempt; Original Payment Records Must Be Disclosed: Keene Publishing Corp. v. Fall Mountain Reg’l Sch. Dist. (2025)

Introduction

In Keene Publishing Corporation v. Fall Mountain Regional School District, SAU 60, 2025 N.H. 35, the New Hampshire Supreme Court delivered a significant Right-to-Know Law decision clarifying three core areas of public records practice under RSA chapter 91-A:

  • Trial courts may conduct ex parte, in camera review of requested governmental records without counsel present when disclosure risks an unlawful invasion of privacy under RSA 91-A:5, IV.
  • Records protected by the attorney-client privilege or the attorney work product doctrine are categorically exempt from disclosure under RSA 91-A:5, XII, without application of the “privacy balancing test.”
  • “Records of any payment” to public employees upon departure, “without alteration,” under RSA 91-A:4, I-a means original financial records evidencing the payments (e.g., bank statements, invoices), not narrative summaries; failure to produce such records warrants attorneys’ fees and costs when the statutory prerequisites are met.

The case arises from a Right-to-Know request by Keene Publishing for records relating to a Title IX investigation of a long-time school district employee (the Intervenor), including the investigation report, related correspondence, and the settlement agreement terminating his employment. After repeated denials premised on exemptions for confidential/personnel records and privilege, the Superior Court conducted an in camera review, sealed some materials, and ultimately ruled that most records were exempt under RSA 91-A:5, IV and XII. On appeal, the Supreme Court affirmed in part, reversed in part, and remanded.

Summary of the Opinion

  • In camera review without counsel present. The Superior Court did not err by reviewing the records ex parte and in camera because release implicated privacy concerns under RSA 91-A:5, IV. The court distinguished procedures applicable to sealed court records from those applicable to Right-to-Know requests for governmental records.
  • Privilege/work-product exemption is categorical. Records protected by the attorney-client privilege or attorney work product are exempt under RSA 91-A:5, XII without applying the three-part privacy balancing test. Courts instead apply the established doctrines of privilege and work product to determine the exemption’s applicability.
  • Confidential/personnel files—public interest and redaction. The trial court erred in concluding the records (including the settlement agreement) were exempt under RSA 91-A:5, IV. The Supreme Court held there is a substantial public interest in the District’s handling of Title IX complaints and expenditures of public funds; the records must be disclosed with robust redaction of identifying information.
  • Records of payments “without alteration.” RSA 91-A:4, I-a requires production of the unaltered, original financial records evidencing the actual payments (e.g., bank statements, invoices), not a narrative description. The District violated the statute by supplying only a summary.
  • Attorneys’ fees and costs. The Court awarded fees and costs for the RSA 91-A:4, I-a violation, concluding the lawsuit was necessary and the District should have known a narrative did not satisfy the statute. It remanded for the trial court to decide fees and costs related to the other records improperly withheld under RSA 91-A:5, IV.

Analysis

Precedents Cited and Their Influence

  • Petition of Keene Sentinel, 136 N.H. 121 (1992): Established procedures for access to sealed court records, including in camera examination with counsel present. The Court clarified those procedures are expressly limited to court records and do not govern Right-to-Know requests for records held by government agencies. This distinction justified the Superior Court’s ex parte, in camera process here.
  • Union Leader Corp. v. City of Nashua, 141 N.H. 473 (1996): Endorsed ex parte in camera review for records whose release could cause an invasion of privacy under RSA 91-A:5, IV. The Court relied on this to affirm the trial court’s review without counsel in a sexual-harassment investigative context.
  • Prof’l Firefighters of N.H. v. HealthTrust, 151 N.H. 501 (2004): Authorized the use of in camera review and a Vaughn index to facilitate judicial evaluation of exemptions when the requester lacks access to the underlying records. This framework underpinned the Superior Court’s process (Vaughn index plus in camera review).
  • Prof’l Fire Fighters of N.H. v. N.H. Local Gov’t Ctr., 163 N.H. 613 (2012) (“Professional Firefighters II”): Treated attorney-client privileged materials as confidential and exempt under RSA 91-A:5, IV without applying the privacy balancing test. The 2021 legislative addition of RSA 91-A:5, XII codified and sharpened that principle into a categorical exemption, which the Court applied here.
  • N.H. Right to Life v. Dir., N.H. Charitable Trusts Unit, 169 N.H. 95 (2016): Applied federal common law for work product and recognized appropriate redactions of personally identifying information. The Court drew on these principles to (a) treat work product as categorically exempt under the new RSA 91-A:5, XII and (b) emphasize redaction of identifying details as a less-restrictive alternative to withholding.
  • Reid v. N.H. Attorney General, 169 N.H. 509 (2016): Set forth the three-step privacy balancing framework for RSA 91-A:5, IV: privacy interest; public interest; then balancing. Reid also noted that rank and seriousness inform the public interest but do not control it. Here, the Court found the trial court read Reid too narrowly and reaffirmed that the core metric is whether disclosure shows “what the government is up to.”
  • Seacoast Newspapers v. City of Portsmouth, 173 N.H. 325 (2020): Reiterated that the Right-to-Know Law’s purpose is to provide the utmost information about governmental activities. This reinforced the strong public interest in disclosure of the District’s investigative and settlement actions.
  • Am. Civil Liberties Union of N.H. v. City of Concord, 174 N.H. 653 (2021): Emphasized the need to balance competing interests and the appropriate, cautious use of in camera review. The Court echoed this caution while approving ex parte review in the circumstances presented.
  • Provenza v. Town of Canaan, 175 N.H. 121 (2022): Restated the three-step privacy analysis and the principle of broad construction favoring disclosure and restrictive construction of exemptions. This guided the Court’s reversal on the RSA 91-A:5, IV analysis and its endorsement of redaction.
  • Marquay v. Eno, 139 N.H. 708 (1995): Recognized the societal importance of safe school environments, strengthening the public interest in oversight of school district responses to sexual harassment/Title IX processes.
  • 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656 (2012): Articulated the three prerequisites for fee-shifting under RSA 91-A:8, I: statutory violation, necessity of the lawsuit, and knowledge (knew/should have known). The Court applied this to award fees for the RSA 91-A:4, I-a violation.
  • Michaud v. Town of Campton Police Dep’t, 176 N.H. 542 (2024): Clarified that costs follow a finding that litigation was necessary to obtain the records. This supported the award of fees and costs for the payment-records claim and the remand regarding other records.
  • O’Donnell v. Allstate Indem. Co., 173 N.H. 295 (2020): Canon against surplusage. The Court used this to give meaning to “without alteration” in RSA 91-A:4, I-a, concluding the phrase compels disclosure of original financial records—not mere summaries.

Legal Reasoning

1) In camera review without counsel present in privacy cases

The Court reaffirmed that different regimes govern access to sealed court records and access to governmental records under RSA 91-A. Petition of Keene Sentinel prescribes procedures for the former and does not control Right-to-Know proceedings. For Right-to-Know disputes, ex parte in camera review is permissible—indeed “plainly appropriate”—where disclosure may cause an invasion of privacy under RSA 91-A:5, IV. The Superior Court acted within its broad case-management discretion by reviewing the sensitive Title IX materials without counsel present, especially given the sexual-harassment context. Still, the Court cautioned that such ex parte, in camera review should be used “cautiously and rarely,” and courts should consider less-restrictive alternatives (e.g., Vaughn indices, partial disclosures) when feasible.

2) No privacy balancing for RSA 91-A:5, XII (privilege/work product)

The Right-to-Know Law was amended in 2021 to add RSA 91-A:5, XII, expressly exempting “[r]ecords protected under the attorney-client privilege or the attorney work product doctrine.” This codified prior case law treating privileged material as a distinct class warranting special protection. The Court held that the three-step privacy balancing test used for confidential/personnel records under RSA 91-A:5, IV does not apply to privileged/work-product materials under RSA 91-A:5, XII. Instead, courts apply the substantive doctrines of privilege and work product directly. The Superior Court correctly withheld records it found “clearly protected” by these doctrines.

3) Confidential/personnel records: strong public interest and robust redaction

Assuming the records fell within RSA 91-A:5, IV categories, the Court applied the three-step privacy analysis:

  • Privacy interests: The Intervenor, complainants, witnesses, and the District had cognizable privacy interests, especially given the sexual-harassment allegations and personal details in the files.
  • Public interest: The Court found a substantial public interest in assessing how the District handled sexual-harassment complaints, administered its Title IX process, and spent public funds—particularly the $17,991.77 lump-sum payment and ongoing health premium contributions. The oversight interest is not confined to the rank of the employee; the core question is whether disclosure illuminates “what the government is up to.”
  • Balancing: The trial court placed dispositive weight on the District’s concerns about chilling witness participation and protecting personal/family details, concluding redaction would be ineffective in a small district. The Supreme Court rejected this, clarifying that redaction extends beyond names to all reasonably identifying information (e.g., room numbers, positions, subjects taught). Because such identifiers reveal nothing about government operations, they can be redacted to safeguard privacy while preserving the public’s ability to evaluate the government’s performance. With robust redactions, the public interest in disclosure outweighs the remaining privacy interests here.

Two further clarifications are noteworthy:

  • Scope of conduct: The Court rejected the notion that incidents outside normal work hours undermine the public interest. Interactions between District employees that the District’s Title IX process found to be harassment still implicate the District’s responsibility to ensure a safe work and school environment.
  • Minor-related content: Although some documents referenced a minor’s conduct, the Court found that redacting this material does not alter the meaning of statements attributed to the Intervenor in a way that would increase stigma or reputational harm. Thus, redaction adequately protects privacy without distorting the record.

Bottom line: the records withheld under RSA 91-A:5, IV—including the settlement agreement—must be disclosed with appropriate redactions.

4) “Records of any payment” under RSA 91-A:4, I-a means original, unaltered financial records

The statute commands that “records of any payment” to an employee upon resignation, discharge, or retirement, paid in addition to regular salary and accrued leave, “shall immediately be made available without alteration.” Giving effect to the phrase “without alteration,” the Court concluded the legislature meant actual, original records evidencing the payments—such as bank statements, invoices, or comparable financial documents—not narrative summaries. Because the District produced only a narrative paragraph that did not show the actual payment records (and did not even state the dollar amount of the health insurance coverage), it violated RSA 91-A:4, I-a. Redactions may be used to protect legitimately confidential information within those financial documents.

5) Attorneys’ fees and costs under RSA 91-A:8

Fee-shifting applies when: (1) a violation of RSA 91-A occurs; (2) suit was necessary to obtain the information; and (3) the agency knew or should have known its conduct violated the law. The Court found all three elements satisfied for the RSA 91-A:4, I-a violation, awarding attorneys’ fees and costs. It remanded for the trial court to determine whether fees and costs should also be awarded for the records improperly withheld under RSA 91-A:5, IV in light of the Supreme Court’s ruling requiring disclosure with redactions.

Impact

  • Courts: This decision solidifies the permissibility of ex parte, in camera review in Right-to-Know cases involving privacy risks, while underscoring it must be used sparingly and with consideration of less-restrictive tools (e.g., Vaughn indices, redacted partial disclosures).
  • Public bodies and agencies:
    • Privilege/work-product: Agencies can categorically withhold attorney-client and work-product materials under RSA 91-A:5, XII if the doctrines apply; no privacy balancing is required.
    • Confidential/personnel files: Expect more disclosures with redactions; agencies must engage in careful, context-sensitive redaction of all identifying details, not just names.
    • Payment records: Narrative summaries do not satisfy RSA 91-A:4, I-a. Agencies must be prepared to produce unaltered, original financial records evidencing separation payments. Recordkeeping practices should ensure such documents are readily retrievable and redactable.
    • Fees exposure: Providing summaries instead of required records can lead to fee awards if litigation proves necessary and the agency should have known better.
  • Requesters (media and public):
    • When seeking investigative or personnel-related records, emphasize the public’s oversight interest in process integrity, responsiveness, and taxpayer expenditures—especially in school safety and Title IX contexts.
    • Insist on redaction as a less-restrictive alternative to wholesale withholding. Identify categories of identifying details that can be removed without impairing public oversight.
    • For separation payments, demand original, unaltered financial records, not narrative summaries; rely on this case to support fee requests if the agency resists.
  • School districts and Title IX practice: There is a strong public interest in institutional response to sexual-harassment complaints. Title IX investigative records, determination letters, related correspondence, and settlement agreements will often be disclosable with robust redactions. Monetary terms—especially supplemental payments—will face heightened scrutiny.
  • Labor and employee privacy: The decision clarifies that privacy can be protected through comprehensive redaction of identifying information, enabling disclosure of substantive content necessary for public oversight without undue exposure of personal identities or intimate details.

Complex Concepts Simplified

  • Right-to-Know Law (RSA ch. 91-A): New Hampshire’s public records law ensures broad access to government records, subject to narrow exemptions.
  • In camera review: A judge privately examines the records to decide if exemptions apply.
  • Ex parte: Without the other parties or their counsel present.
  • Vaughn index: A document-by-document log describing withheld records and the specific legal basis for each withholding, enabling meaningful challenges without revealing the contents.
  • Attorney-client privilege: Protects confidential communications between a client and lawyer for the purpose of seeking legal advice.
  • Attorney work product: Protects materials prepared by or for attorneys in anticipation of litigation, reflecting legal strategy and mental impressions.
  • Privacy balancing test (RSA 91-A:5, IV): A three-step analysis: identify privacy interests; identify the public interest; then balance them. It applies to confidential/personnel records but not to privileged/work-product materials under RSA 91-A:5, XII.
  • Redaction: Removing identifying or sensitive information from a document before release, so the remainder can be disclosed.
  • “Without alteration” (RSA 91-A:4, I-a): Requires disclosure of original financial records evidencing actual payments—not summaries or paraphrases.
  • Unsustainable exercise of discretion: The deferential appellate standard for trial management decisions; reversal requires showing the decision was clearly untenable or unreasonable and prejudicial.
  • Attorneys’ fees (RSA 91-A:8): Fees and costs are awarded when the agency violated the law, litigation was necessary to obtain the information, and the agency knew or should have known of the violation.

Practice Pointers

For public bodies

  • Use a detailed Vaughn index to justify withholdings; it will assist the court and narrow disputes.
  • Segregate privileged/work-product materials early; assert RSA 91-A:5, XII without invoking privacy balancing.
  • When relying on RSA 91-A:5, IV, prepare to release redacted records rather than withhold wholesale. Redact all reasonably identifying information (names, room numbers, positions, subjects taught, unique contextual details) that reveal nothing about government conduct.
  • For separation payments, retain and be ready to produce original, unaltered financial documents evidencing the payments. Apply narrow redactions for legitimately confidential items (e.g., account numbers) as allowed by RSA 91-A:5, IV.

For requesters

  • Frame requests to highlight public oversight: government responsiveness, adherence to required procedures (e.g., Title IX), and use of public funds.
  • Request a Vaughn index in “large document” disputes to mitigate information asymmetry.
  • Press for redactions instead of withholding wherever privacy is the asserted concern; specify categories of identifying information to be removed.
  • For separation payments, cite this case to obtain unaltered bank statements, invoices, or similar records showing actual payment amounts, timing, and payees.
  • Seek fees where an agency provides summaries in lieu of the statutorily required records or unreasonably resists redacted disclosure.

Conclusion

Keene Publishing v. Fall Mountain decisively clarifies three critical aspects of New Hampshire’s Right-to-Know Law. First, ex parte, in camera review is permissible in privacy-sensitive cases involving governmental records, distinct from procedures governing sealed court records. Second, the 2021 addition of RSA 91-A:5, XII creates a categorical exemption for attorney-client and work-product materials, eliminating the privacy balancing test for such records. Third, RSA 91-A:4, I-a’s command to provide “records of any payment … without alteration” requires disclosure of the original financial documents evidencing the payments themselves, not narrative summaries—a ruling with immediate consequences for agencies’ recordkeeping and disclosure practices.

Equally important, the Court reinforces that the public has a substantial oversight interest in how public entities investigate and resolve allegations of workplace sexual harassment, particularly in schools. Robust redaction of identifying information—not wholesale withholding—is the appropriate tool to reconcile privacy with transparency. With fee-shifting applied to the payment-records violation and potential fees on remand for other records, the decision strengthens incentives for agencies to meet the letter and spirit of RSA chapter 91-A. In sum, this opinion meaningfully advances government accountability while preserving legitimate privacy interests through targeted redaction and categorical protection for privileged materials.

Case Details

Year: 2025
Court: Supreme Court of New Hampshire

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