2007 Summer, Pg. 20. Murray v. NH State Police: The Right to Access Police Investigatory Files.

AuthorBy Shannon Gulley

New Hampshire Bar Journal


2007 Summer, Pg. 20.

Murray v. NH State Police: The Right to Access Police Investigatory Files

New Hampshire Bar JournalSummer 2007, Volume 48, No. 2Annual Survey of New Hampshire LawMurray v. NH State Police: The Right to Access Police Investigatory FilesBy Shannon GulleyI. Introduction

A family member drives from college in upstate New York to her home in northern New Hampshire for Thanksgiving. She was supposed to arrive home at five, but minutes pass, then an hour, then a couple of hours. She does not answer her cell phone. The police will not do anything until more time passes. Finally, after a sleepless night with no word, the police check the area roadways. They find the car, but no one is in it. The family member has disappeared, apparently without a trace.

Over the next several months the police conduct an investigation, but there is no obvious progress. A frustrated family repeatedly asks what is going on, but the police, citing the need to safeguard the integrity of the investigation, refuse to provide details. The family asks the court to force the police to disclose information.

The scenario above is hypothetical, but the situation is one that any parent would cringe at having to confront. A similar situation did arise recently in New Hampshire, and in Murray v. State Police(fn1), the Court had to resolve the tension between a grief-stricken family's need for information about its missing relative, and the police's interest in shielding the product of its ongoing investigation from the public. The Court balanced the interests in favor of disclosure, but on remand, gave the police an opportunity to justify their decision to deny access to the file. In light of Murray, this article will review the constitutional and statutory underpinnings of the public's right of access to governmental records, including police investigative files. It will explain what a member of the public must do to initiate the process, what objections the government might have, and how the courts balance these competing interests. The article will then review the Murray Court's analysis and discuss what the police must do on remand in order to prevent disclosure. Finally, the article will address the significance of this case and why the legislature needs to more specifically address the issue of access to police investigatory files in RSA 91-A.

  1. Facts of Murray v. NH State Police

    Maura Murray, a student at the University of Massachusetts at Amherst, e-mailed her professors and employer on the afternoon of February 9, 2004, informing them that she was leaving town due to a family emergency.(fn2) She packed a bag and printed off directions to a location in Vermont.(fn3) Her directions showed that she may have been heading towards Stowe or Burlington, but evidence indicated that she exited Interstate 91 at Exit 17, headed east on Route 302, and then proceeded to turn onto Route 112 heading toward Lincoln.(fn4) Around 7:00 p.m., Maura lost control of the car a mile from Swiftwater and crashed into some trees, causing minor damage to her car.(fn5) A bus driver offered to call an ambulance and the police, but Maura stated that AAA had been called and was on its way.(fn6) The bus driver called the police when he arrived home, but when the Haverhill police went to the accident site Maura was not there, and she has not been seen since.(fn7) In the nearly three years since Maura's disappearance, numerous agencies and individuals have attempted to find her without success.(fn8)

    In 2004, Maura's father, Frank Murray, filed a petition under the Freedom of Information Act ("FOIA")(fn9) with the New Hampshire State Police and the Haverhill Police, seeking the release of the records in his daughter's missing person case.(fn10) On June 29 2004, Murray received a letter from the New Hampshire State Police which denied his FOIA request under RSA 91-A:5 IV.(fn11) The letter stated that the release of these records would interfere with an ongoing police investigation and referred to Lodge v. Knowlton to support the decision.(fn12) The Haverhill police also denied the FOIA request for the same reasons.(fn13)

    In December 2005, Mr. Murray filed a petition in superior court seeking the release of the materials.(fn14) The court ruled that the materials were investigatory in nature, and thus, to release such documents would interfere with future law enforcement proceedings.(fn15) Mr. Murray appealed and the court had to decide whether to rule in favor of the grieving father or the law enforcement agencies that are still trying to find out what happened to Maura.(fn16)

  2. Statutory and Constitutional Underpinnings of FOIA

    The origins of the public's "right to know" go all the way back to the founding of the United States, when the colonists rallied against the British government for the release of information related to the running of the House of Commons and House of Lords.(fn17) The forefathers stressed the importance of an informed citizenry and that the people should have a right to access information on the actions of their government.(fn18) These ideals were incorporated in the Declaration of Independence(fn19), the United States Constitution(fn20) and the constitutions of all 50 states.

    New Hampshire is one of only a few states whose constitution explicitly protects the public's right of access.(fn21) Part I, Article 8 of the New Hampshire Constitution gives the public the right to open access of the government's actions.(fn22) The people are sovereign under the New Hampshire constitution(fn23) and the government is accountable to the people, thus as a result the people have a right to access government records.(fn24)

    However, before 1976, the state Constitution did not provide the public with a method by which the government could be held accountable.(fn25) In 1976, Article 8 was amended for the purpose of ensuring the public's right to access.(fn26) The amendment's sponsor wanted to ensure that the legislature could be blocked from "completely doing away with the right to know"(fn27). In the case, Hughes v. Speaker, NH House of Reps(fn28), the court commented on the purpose of Article 8 and stated that "the public's constitutional right of access is meant to satisfy an "end"; to wit, that government should be open, accountable, accessible and responsive. This "end" can and should be accomplished without severely curtailing the efficient operation of the government."(fn29) "The public's right of access to governmental proceedings thus is not absolute."(fn30)

    The federal courts have recognized that the right of access is also grounded in the First Amendment freedom of speech clause and the New Hampshire Supreme Court has also recognized that the public's right to access is found through the "free speech clause of the state Constitution".(fn31) Part 1 Article 22 of the New Hampshire Constitution states, "free speech and liberty of the press are essential to the security of freedom in the state: They ought, therefore, to be inviolably preserved."(fn32) Thus, the state constitutional right of access arises from both Article 8 and Article 22.(fn33)

    NH RSA 91-A Right to Know Law

    RSA 91-A is the New Hampshire law governing the disclosure of governmental records and proceedings.(fn34) RSA 91-A codifies the public policy of a right to access as set forth in Article 8.(fn35) RSA 91-A's preamble states that, "Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people."(fn36)

    Under RSA 91-A, every citizen has the right to the open access of governmental records, however the release of some records is prohibited by certain statutory exemptions listed under RSA 91-A:5.(fn37) The New Hampshire courts have made a clear presumption of favoring the disclosure of public records.(fn38) The state...

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