MRI Report of Chester NH Fire Department - Recruitment and Retention

To Whom It May Concern:

Pursuant to the New Hampshire Right to Know Law, I hereby request the following records:

MRI REPORT CONCERNING CHESTER FIRE DEPARTMENT
Municipal Resources Inc (MRI), a private consulting company, was engaged by the Board of Selectmen to investigate the Chester Fire Department and provide the Board of Selectmen with a report on the audit findings. The report focused on Recruitment and Retention issues at the Chester Fire Department and may cover other areas of concern as well. The primary concerns arose from resignations of 10 Chester Fire Department members in a period of several months resulting in a significant reduction of staff that has not been offset through recruitment. The report, accepted by the Board of Selectmen and provided to and discussed with Fire Chief Gladu, is requested. Comments during public session of the 9/22/2022 Board of Selectmen meeting confirm the MRI report was discussed in non-public session on 9/22/2022 with Fire Chief Gladu present.

The contracts, invoices, bills, quotes, and records of any money paid to MRI related to the commissioning of this report are requested. The identification of anytime representatives from MRI appeared before the Board of Selectmen. The identification of all instances this MRI report was discussed in non-public session and the reason pursuant to RSA 91-A:3 II used to justify entering non-public session, the minutes of the non-public session if the minutes are subject to public disclosure, and if the minutes are not subject to public disclosure the reason pursuant to RSA 91-A:3 III for withholding the minutes from public disclosure.

The MRI report of the Chester Fire Department is a government record subject to disclosure, in its entirety, under the New Hampshire Right to Know Law (RSA 91-A). The release of the complete report is of substantial public interest and necessary for the public to evaluate the effectiveness, preparedness and safe operation of the taxpayer funded Fire Department. For any redactions made please note the exemption reason relied upon for each redaction.

EMAILS
All emails meeting the criteria below:
Sent or received by ANY of the following individuals: Fire Chief Gladu, Lieutenant Alex Hodosi, Station Manager Ingalls, Town Administrator Doda;
Including ANY of the following search terms in the subject, body, or attachments: "MRI", "Municipal Resources", "Recruitment", "Retention", "BOS", "Selectmen";
Between the dates: May 1, 2022 and December 1, 2022.
The entire email thread, including attachments, is requested for each match of the criteria above.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Kevin J Dolan

To Whom it May Concern,

Thank you for your timely response to this request. Thank you for confirming that the contracts, invoices, bills, quotes, and records of payments made to MRI will be available on or before 12/16/2022.

Regarding the exemption claiming the requested MRI report, in its entirety, is exempt from public disclosure because it "pertains to internal personnel practices"; This exemption is not applicable to the requested report and the report must be disclosed. The Town's confusion on the "internal personnel practices" exemption under RSA 91-A:5 IV is understandable given the recent landmark New Hampshire Supreme Court cases concerning this exemption, and more specifically, its application to reports created by MRI and other external consulting companies. Please review the explanations and cases below and provide the requested MRI report in its entirety with only the redactions supported by the law.

In the landmark case of Seacoast Newspapers v. Portsmouth, No. 2019-0135 (2020) the New Hampshire Supreme Court overruled its 1993 decision in Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993) pertaining to the broad interpretation of the "internal personnel practices" exemption of RSA 91-A:5 IV. In Seacoast Newspapers v. Portsmouth the New Hampshire Supreme Court determined “we conclude that the ‘internal personnel practices’ exemption was intended to apply only to records pertaining to the internal rules and practices governing an agency’s operations and employee relations, not information concerning the performance of a particular employee. See Milner, 562 U.S. at 569-70, 131 S.Ct. 1259; Rose, 425 U.S. at 363, 96 S.Ct. 1592; Reid, 169 N.H. at 523, 152 A.3d 860. As we have explained above, this narrow interpretation is consonant with our constitution and the purpose of the Right-to-Know Law." Since the requested MRI report was generated externally, the report factually does not pertain to “internal rules" or internal “practices" since the report was investigative in nature and created by an external entity. For examples of what constitutes an “internal personnel practice," “See Rose, 425 U.S. at 363, 96 S.Ct. 1592 (listing use of parking facilities, regulation of lunch hours, and statements of policy regarding sick leave as examples of internal personnel practices)". Since the requested report does not pertain to “internal personnel practices," as redefined by Seacoast Newspapers v. Portsmouth, the requested MRI report must be disclosed.

Even in the unlikely event a court were to conclude the requested MRI report did pertain to “internal personnel practices," the landmark decision in Union Leader Corp. v. Town of Salem, 173 N.H. 345 (2020) overruled the aspect of the 1993 Fenniman decision creating a per se rule in which “internal personnel practices" were categorically exempt from disclosure. The Town of Salem contracted with an outside consulting firm to investigate and audit the Salem Police Department. This is what the Town of Chester has done except with respect to the Fire Department as opposed to the Police Department. The court ruled:

“We now overrule Fenniman to the extent that it adopted a per se rule of exemption for records relating to ‘internal personnel practices’ and overrule its progeny to the extent that they applied that per se rule of exemption. In the future, the balancing test we have used for the other categories of records listed in RSA 91-A:5, IV shall apply to records relating to ‘internal personnel practices.’ See Prof'l Firefighters of N.H., 159 N.H. at 707, 992 A.2d 582 (setting forth the three-step analysis required to determine whether disclosure will result in an invasion of privacy). Determining whether the exemption for records relating to ‘internal personnel practices’ applies will require analyzing both whether the records relate to such practices and whether their disclosure would constitute an invasion of privacy. See N.H. Housing Fin. Auth., 142 N.H. at 552, 705 A.2d 725.”

For reference, please see the well-established three-step analysis that is now applicable to the “internal personnel practices" exemption:
“When considering whether disclosure of public records constitutes an invasion of privacy under RSA 910A:5, IV, we engage in a three-step analysis. First, we evaluate whether there is a privacy interest at stake that would be invaded by the disclosure. Second, we assess the public’s interest in disclosure. Third, we balance the public interest in disclosure against the government’s interest in nondisclosure and the individual’s privacy interest in non disclosure. If no privacy interest is at stake, then the Right-to-Know Law mandates disclosure. [citation omitted]. Further, whether information is exempt from disclosure because it is private, is judged by an objective standard and not a party’s subjective expectations.”

On remand in Union Leader Corp. v. Town of Salem (218-2018-CV-01406), the New Hampshire Superior Court overruled almost all of the redactions. Therefore, it is clear the requested MRI report cannot be categorically withheld from public disclosure utilizing a per se rule that has been overruled by the New Hampshire Supreme Court. The Town of Chester’s position that the requested MRI report is categorically exempt in its entirety is unprecedented as even the Town of Salem released a redacted copy of the audit report concerning its police department.

Finally, on April 22, 2022 in Provenza v. Town of Canaan, No. 2020-0563 (2022), the most recent landmark New Hampshire Supreme Court case concerning the “internal personnel practices" exemption, the court clarified the high burden needed to establish privacy interests outweigh public interest in disclosure. In the Provenza case, the Town of Canaan commissioned MRI to conduct an internal investigation into an excessive force complaint against Officer Provenza. The Court determined Provenza’s privacy interest was minimal because the MRI report “does not reveal intimate details of Provenza’s life but rather information relating to his conduct as a government employee while performing his official duties". The decision further highlights “the public has a substantial interest in information about what its government is up to, see Lamy, 152 N.H. at 111, as well as in knowing whether a government investigation is comprehensive and accurate, see Reid v. N.H. Attorney Gen., 169 N.H. 509, 532 (2016).” This cements the fact that there is substantial public interest in the public disclosure of the requested MRI report.

Given all three of these recent decisions by the New Hampshire Supreme Court, it is clear the Town of Chester cannot vaguely declare that the requested MRI report on the Chester Fire Department is categorically exempt from disclosure in its entirety because it “pertains to internal personnel practice" without any further explanation or justification.

If the Town of Chester maintains that there are specific redactions of the requested MRI report that constitute valid exemptions for “internal personnel practices," please provide the following explanation demonstrating that the Town of Chester has applied what it now knows are the appropriate legal standards established by the landmark cases described above:

1. A brief description of the “internal policy" or “internal rule" that is being redacted. For example, if the requested report referenced an “internal policy" regarding discipline of employees, that could be reasonably understood to be an “internal personnel practice" as defined by the court above.
2. A brief description confirming the redaction is regarding a legitimate privacy interest and confirming the redaction would reveal intimate details of an individual’s personal life opposed to the conduct of a government employee while performing their official duties. If a proposed redaction does not reveal personal details regarding an individual's life outside of their employment, there is not a legitimate privacy interest.
3. A brief description of why the privacy interest is outweighed by the significant public interest in a report concerning the effectiveness of recruitment and retention of the Chester Fire Department and the subsequent impact to public safety.

For the reasons outlined above, it is clear that the Town of Chester knows or should know that disclosure of the requested MRI report is required by law.

Regarding the request for emails: Based on the Town of Chester’s response it is reasonable that the search query as written may return emails unrelated to the request. Specifically, Town Administrator Doda likely sends and receives many emails that contain the terms "BOS" and "Selectmen" due to the nature of her job that would be unrelated to this request. Therefore, the EMAILS portion of the request is amended as follows to remove the overly broad search terms "BOS" and "Selectmen":

EMAILS
All emails meeting the criteria below:
Sent or received by ANY of the following individuals: Fire Chief Gladu, Lieutenant Alex Hodosi, Station Manager Ingalls, Town Administrator Doda;
Including ANY of the following search terms in the subject, body, or attachments: "MRI", "Municipal Resources", "Recruitment", "Retention";
Between the dates: May 1, 2022 and December 1, 2022.
The entire email thread, including attachments, is requested for each match of the criteria above.

If this request results in the identification of MRI reports in addition to the requested MRI report regarding the Chester Fire Department, those emails are considered responsive to this request.

The removal of the search terms “BOS" and “Selectmen" should significantly reduce the number of emails meeting the query criteria. The inclusion of emails related to “recruitment" and/or “retention" for Town of Chester employees outside the Chester Fire Department are considered relevant and responsive to this request so that the effectiveness of the Town’s holistic recruitment/retention efforts can be evaluated.

Please release responsive documents as they become available instead of waiting to release responsive documents when the entire request has been completed.

Thank you in advance for your anticipated cooperation in this matter.

Sincerely,
Kevin J Dolan

To Whom it May Concern,

APPEAL

After reviewing the provided information the Town has not satisfied its burden under the law in its justification for withholding the MRI Report in its entirety. The Town has failed to apply the balancing test applicable to RSA 91-A:5, IV ‘internal personnel practices’ established in Union Leader Corp. v. Town of Salem, 173 N.H. 345 (2020). Specifically, the Town has not asserted there is a privacy interest at stake and the court has clearly ruled “If no privacy interest is at stake, then the Right-to-Know Law mandates disclosure” in relation to the ‘internal personal practices’ exemption (Union Leader Corp. v. Town of Salem, 173 N.H. 345 (2020)). Since the Town has not asserted a privacy interest and confirmed none can exist because “the MRI report is not an investigation of any individual employee” the report must be disclosed. Furthermore, there is nothing 'internal' regarding a third party paid consulting firm making ”findings, recommendations and conclusions” (See PROFESSIONAL SERVICES AGREEMENT) for the management of the Town at the taxpayer's expense. This request revealed the taxpayers paid over $3,000 for the report. The public has a vested substantial interest in knowing if the ”findings, recommendations and conclusions” the taxpayers paid for have been implemented and if the "review" was comprehensive.

Additionally, the email from Fire Chief Gladu with subject MRI DISCUSSION (attached) dated Thu 9/22/2022 1:03 PM indicates a meeting on the MRI Report was going to take place at the Board of Selectmen meeting on 9/22/2022. The attached minutes from 9/22/2022 confirm this meeting did occur in a non-public session for "reputation" (RSA 91-A:3 II (c)) and that the meeting lasted from 8:02 PM to 9:05 PM. The fact that "reputation" was used as the reason for entering non-public session contradicts the Town's claim that the report only pertains to 'internal personnel practices' and does not apply to any "individual" who needs their reputation protected. Since discussion in non-public sessions is strictly limited to the reasons stated for entering non-public session (91-A:3 I (c)), any mention of the "compensation" or "the investigation of any charges" (RSA 91-A:3 II (a)) of any public employee during this non-public session renders the discussion illegal and subjects the minutes to immediate public disclosure. Since the Town directly admits the MRI report related to "compensation" it is very likely a 1 hour discussion about the report mentioned compensation or other matters related to employment (RSA 91-A:3 II (a)). Therefore, the minutes for the 9/22/2022 non-public session with Fire Chief Gladu are requested on the basis RSA 91-A:3 I (c) was violated by discussing matters specifically related to Employment, RSA 91-A:3 II (a), in a non-public session only permitting the discussion of reputation, RSA 91-A:3 II (c).

Additionally, as a result of this request the Town provided the Town Personnel Manual in its entirety. The Town Personnel Manual pertains to "internal rules and practices governing an agency's operations and employee relations" including internal rules for benefits, days off, etc. The Town correctly did not apply the 'internal personnel practices' exemption to this document. This demonstrates the Town knows only matters with legitimate privacy concerns are eligible for the exemption. The Town has an extremely high burden to demonstrate the MRI report, in its entirety, contains only private information about the personal lives of Town employees outside their official duties which would directly contradict the started purpose of the engagement with MRI. Since the Town declares the report is not an investigation of any specific employees it is not clear how there can be any legitimate privacy interest at stake preventing disclosure.

The Town has a very high burden to demonstrate it applied the balancing test to the MRI Report and still came to the conclusion it was not subject to disclosure, even in redacted form, given the significant public interest in the MRI report. The Town plainly bears the burden of proof in its decision to withhold the MRI report from public disclosure.

““The purpose of the Right-to-Know Law 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.” 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 660 (2012) (quotation omitted). “Although the statute does not provide for unrestricted access to public records, we resolve questions regarding the Right-to-Know Law with a view to providing the utmost information in order to best effectuate these statutory and constitutional objectives.” Id.; see also N.H. CONST, pt. I, art. 8. “As a result, we broadly construe provisions favoring disclosure and interpret the exemptions restrictively.” Ettinger v. Town of Madison Planning Bd., 162 N.H. 785, 788 (2011). “The party seeking nondisclosure has the burden of proof.” N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 439 (2003).” CaremarkPCS Health, LLC v. New Hampshire Department of Administrative Services, 167 N.H. 583 (2015)

“When a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure.” Union Leader Corp. v. City of Nashua, 141 N.H. 473 476 (1996)

The Town has not met its heavy burden. Please provide the MRI Report in response to this request or a clear explanation confirming the Town has applied the applicable balancing test previously explained and clarifying if there is a legitimate privacy interest that prevents the disclosure of the report. Finally, an explanation for why the report is being withheld in its entirety and why the Town has not considered redactions is requested since, as is made clear, only matters with legitimate privacy interests are eligible for redaction.

REQUEST FOR NON-PUBLIC SESSION MINUTES FROM THE SEPTEMBER 22, 2022 NON-PUBLIC SESSION WITH FIRE CHIEF GLADU
As described above, the minutes for this non-public session are requested.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,
Kevin J Dolan

P.S.
Clerk Lufkin,

Thank you very much for taking the hours necessary to review all of the emails and documents provided as well as providing me with frequent updates on the status of the request. It is very much appreciated.