Independent New Hampshire Journalism · Northfield, NH

Always Say Less Than Necessary

Three sentences end conversations in New Hampshire government. “No comment.” “That’s a personnel matter.” “It’s pending litigation.” Two of them stopped being law years ago, and almost nobody outside a courtroom was told.

Disclosure: Granite State Report files Right-to-Know requests as a routine part of its reporting, and I have Right-to-Know matters pending with New Hampshire public bodies. This piece describes the general practice and does not discuss any matter I am party to.

There are three sentences that end conversations in New Hampshire government. Any resident who has ever asked a hard question at a town hall has heard at least one of them. “No comment.” “That’s a personnel matter.” “We can’t discuss that, it’s pending litigation.”

They are delivered the same way: evenly, a little regretfully, with the tone of someone reciting a rule rather than making a choice. That tone is the whole trick, and it is worth taking apart, because two of those three sentences are not rules at all.

Robert Greene’s fourth law of power is to always say less than necessary. Say little and you seem larger than you are. The other person fills the silence, reveals themselves, and leaves thinking you know more than you do. Parts One through Three of this series tested laws about servants, friends and closed doors. This one is about the sentence itself.

New Hampshire agencies run Law 4 close to perfectly. The catch is that their two most effective phrases lost their legal footing years ago, and almost nobody outside a courtroom got the memo.

“Pending litigation” was never an exemption

Start with the one that sounds most official.

RSA 91-A:5 lists what a public body may withhold. Read the list. There is no litigation exemption in it. A lawsuit does not seal a town’s records, and the existence of a case is not, by itself, a reason to refuse anything.

The New Hampshire Supreme Court has said so on the record. In a case brought by Kenneth Michaud against the Campton Police Department, docketed as 2022-0328, the town denied a records request on the theory that it looked like an attempt to get around discovery in a separate lawsuit between the same parties. The court did not accept that. The New Hampshire Municipal Association, which advises towns rather than requesters, summarized the outcome for its own members: pending litigation does not create a blanket exemption. The town’s obligation was to gather the records and analyze them for actual exemptions, one by one, whatever it thought of the requester’s motive.

That last part matters more than the holding. A body facing a records request does not get to evaluate why you want it. It has to look at the documents.

“Personnel matter” stopped being law on May 29, 2020

This one has a date, and every New Hampshire resident who covers or attends local government should know it.

From 1993 until 2020, the phrase had real force. In Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993), the Supreme Court read the “internal personnel practices” exemption in RSA 91-A:5, IV broadly enough that records of a public agency’s internal discipline were treated as categorically off limits. For twenty-seven years, “personnel matter” was close to a magic word, and it was used constantly to keep police internal affairs files out of public view.

On May 29, 2020, the court issued two opinions on the same day and dismantled it.

In Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 325 (2020), the court redefined the exemption narrowly. It reaches an agency’s internal rules and practices governing operations and employee relations. It does not reach information about the history and performance of individual employees.

In Union Leader Corp. v. Town of Salem, 173 N.H. 345 (2020), the court went at the rule itself, holding that such records are not categorically exempt “instead of being subject to a balancing test.” Justice Gary Hicks wrote that the court was overruling its prior decisions to the extent they had applied the per se rule.

The practical result is that “personnel matter” is now the beginning of an analysis rather than the end of one. The body has to weigh the public interest in disclosure against the privacy interest at stake, record by record. Later cases have kept pushing the same direction. In Provenza v. Town of Canaan the court affirmed release of an investigative report about a police officer’s conduct during a motor vehicle stop. In Reid v. New Hampshire Attorney General the court agreed that the exemption did not fit where the Attorney General was not the employer in question.

A board that says “personnel matter” and stops has not applied the balancing test. It has skipped it.

The lawyer’s version

There is a fourth phrase, used by counsel rather than staff, and it deserves its own paragraph: the report is privileged.

In Hampstead School Board v. School Administrative Unit No. 55, a school administrative unit hired an outside attorney to investigate harassment allegations against board members, announced publicly that the allegations had been found meritless, and then refused to release the report on attorney-client privilege grounds. The Supreme Court found that the argument that privileged or work-product records are per se exempt from the Right-to-Know Law rested on “an understandable, but mistaken, interpretation of our precedent.”

Privilege is real and it protects real things. What it does not do is convert every document a lawyer touched into a permanent secret. An agency that routes a problem through counsel and then declares the resulting file untouchable is making an argument the state’s highest court has already looked at.

Why the written denial rule matters so much

Here is where Law 4 collides with the statute, and where a resident gets something to hold onto.

Notice what the law does to Greene’s advice. Law 4 works on tone and brevity. The statute answers tone with paperwork. Say less than necessary all you want at the microphone; when a written request arrives, the body has to name the exemption and explain the fit, in writing, and that document either holds up or it does not.

Which is why so much refusal in New Hampshire happens verbally. A verbal refusal costs nothing and creates nothing. A written denial is a position somebody has to defend.

The case for saying less

The strongest version of the other side deserves stating, because it is not weak.

The 2020 decisions did not make personnel records public. They replaced a categorical rule with a weighing, and weighing cuts both directions. A town employee accused of something, investigated, and cleared has a real interest in that file not circulating. So does a complainant who came forward expecting discretion. A department mid-negotiation with a union has a legitimate reason not to bargain through the newspaper. Counsel advising a board during an active claim is doing the job a client hired counsel to do, and the privilege that protects it exists for reasons that predate anyone’s records request.

There is also a practical argument officials make privately and rarely say out loud. A partial answer is often worse than none. Release half a file and the public draws a conclusion the other half would have corrected. Comment on a live personnel case and you may prejudice the process for the employee. Sometimes the responsible thing is to wait.

All of that can be true at once, and none of it licenses the shortcut. The complaint here is not that New Hampshire bodies withhold too much. Many withhold about the right amount. It is that they announce the withholding in language implying a legal command where a judgment call was made. An official who states plainly that the body is holding a record while an investigation runs, and gives the reason, is being straight with the room. An official who says “personnel matter” and moves to the next agenda item is borrowing authority from a case that was overruled in 2020.

The first is governance. The second is a phrase doing work the law stopped doing.

What Greene understood

Give him this much. Law 4 works, and it works for exactly the reason he identified: the person hearing the short answer fills in the rest themselves. Told “that’s a personnel matter,” most people supply the missing half of the sentence on their own. They assume a law exists that requires the silence. Nobody said that. It was simply allowed to be inferred.

The whole mechanism runs on the listener not knowing whether the phrase is a rule or a preference. Greene called that seeming larger than you are. In a New Hampshire town hall it is simpler than that. It is an information gap, and information gaps close.

Three questions that change the exchange

“Is that a denial, or a decision not to comment?” These are different things and officials know it. One triggers statutory obligations. The other is a choice the body is free to make, and free to be asked about.

“Which exemption, and how does it apply?” Ask it in writing and RSA 91-A:4, IV(c) requires an answer in writing. If the reply names no paragraph, that reply is defective on its face and you have it on paper.

“Is that a categorical position, or did you run the balancing test?” For anything touching personnel, this is the question. The categorical rule died in May 2020. A body still operating as though Fenniman controls is working from a case that was overruled six years ago.

None of that requires a lawyer, and none of it requires being combative. It requires knowing that two of the three sentences carry no legal weight on their own, and asking the person in front of you to say which one they meant. Most will answer. The phrase works because it is almost never questioned, and it stops working the moment it is.

Next: Law 5, on reputation, and what happens in New Hampshire when a department’s reputation becomes the thing it is protecting.

Fact check

Editor’s note: This is commentary and analysis, not legal advice, and I am not a lawyer. Case outcomes are summarized from published opinions and opinion summaries; anyone relying on these holdings in a filing should read the full opinions and consult counsel. This piece quotes no part of Robert Greene’s book beyond the title of Law 4. The GSR Power Index is an editorial rating, not data.