Four years ago, New Hampshire voters overwhelmingly approved a new amendment to the state's constitution enshrining a “right to live free from government intrusion in private or personal information.”
Supporters of the amendment saw it as a way to update privacy standards in the digital era and strengthen protections for documents like medical records. Opponents argued privacy is already protected in the federal constitution. Some also worried that this provision could hinder law enforcement's ability to collect key information during criminal investigations, or that it would be misinterpreted by the courts.
But so far, New Hampshire courts haven’t done much interpreting.
“It’s barely been tested,” said University of New Hampshire Franklin Pierce School of Law Professor Buzz Scherr, who helped to draft the amendment.
That might be starting to change. A Hillsborough County Superior Court judge is weighing how the amendment might affect the disclosure of mental health and crisis center records in a domestic violence case. Voting rights advocates have also invoked the amendment in legal challenges against a new election law set to take effect next year.
Scherr said this is just the tip of the iceberg when it comes to exploring how the privacy amendment could affect the everyday lives of Granite Staters.
“What counts is personal information is a very large universe,” he said. “Is what Internet sites you go to personal information?… Is what books you take out of the library personal information?”
In Hillsborough County, questions of privacy over counseling records
One of the first major tests of the state’s privacy amendment comes as part of a domestic violence case in Manchester, where the defense team has requested access to the alleged victim’s mental health and crisis center counseling records.
This kind of request isn’t unprecedented, and state law spells out a process for disclosing records from crisis centers. First, the law says the defendant has to convince a judge that the records could include crucial information that’s not available anywhere else and that the “probative value” of that information outweighs potential harm for the alleged victim. If they clear that hurdle, a judge is supposed to review the records to decide what information is relevant and should be turned over to the defense.
This law has critics on both sides. Some victims rights advocates said it’s inconsistently applied. Some defense attorneys, meanwhile, view parts of it as too restrictive.
At a recent hearing in the Hillsborough County domestic violence case, defense attorney Julian Jefferson argued that blocking the release of the alleged victim’s counseling records could harm his client’s “constitutional right to a stable and a fair trial.” Jefferson did not respond to additional interview requests from NHPR following that hearing.
Scherr, a former public defender, told NHPR these records can sometimes be helpful to criminal defendants.
“The most obvious example is if, in mental health records or the crisis center records, the alleged victim expressed doubt about whether the incident actually occurred or not,” Scherr said, “or [if they] said at one point, ‘No, it didn't even happen.’”
But David Vicinanzo, an attorney representing the alleged victim and the Concord-based crisis center where they sought counseling, has argued New Hampshire’s new constitutional right to privacy should shield his clients' records from court scrutiny.
Vicinanzo also argued other states with an explicit privacy amendment, like the one New Hampshire recently enacted, have a higher standard when it comes to the release of this type of information. He also noted that Minnesota’s Supreme Court has shielded the kind of records currently at issue in this case.
If the judge overseeing the case is persuaded by Vicinanzo’s arguments, it could make it harder for defense attorneys to obtain mental health and crisis center records in New Hampshire court proceedings.
Scherr, who championed the privacy amendment, said adding this explicit constitutional right to privacy into the court's analysis could further restrict access to individuals’ counseling records in other court cases.
In court, Vicinanzo has also argued counseling records are often used to discredit victims by stigmatizing their mental health diagnosis, and that this tactic disproportionately affects women and children who come forward to report abuse or assault.
Those concerns are shared by some local mental health and victims’ advocacy organizations, including the National Alliance on Mental Illness (NAMI) New Hampshire. Executive Director Susan Stearns said bringing these records into legal proceedings can lead to “stereotyping at best and utter discrimination at worst.”
The New Hampshire Coalition Against Sexual and Domestic Violence has also formally intervened in the Hillsborough County case to argue against the release of the alleged victim’s counseling records.
“We will have more and more victims who are unable to heal from this extreme trauma if we do not create safe, confidential spaces for victims to process what happened to them,” Executive Director Lyn Schollett said.
Schollett said the courts are inconsistent in their application of the state’s current process for deciding when crisis center records should be disclosed in court. She hopes this case can help to bolster the privacy rights of victims.
“We've seen many, many cases where the court doesn't even make the defendant go through the process of making a showing until we get a lawyer,” she said.
Robin Melone, president of the New Hampshire Association of Criminal Defense Lawyers, disagrees. She said victims’ privacy rights are already well protected under state and federal law, and defense attorneys are routinely asked to make a compelling showing of why counseling records are likely to contain information that could be favorable to their client before gaining access.
By the time defense attorneys gain access to those records, Melone said in her experience they’re often heavily redacted to protect personal information that’s not relevant to the case.
“The bar for us to get access to privileged or confidential medical counseling or other records is substantial,” Melone said. “It is not easy to get this information and it's not easy to use it.”
Melone said defendants have a right to evidence that could exonerate them from guilt and pushed back on the notion that defense attorneys would stigmatize an alleged victim's mental health history in court.
“I don't get to just cross-examine a victim and say if you have a diagnosis of bipolar disorder or schizophrenia, you're not a reliable witness,” she said “That is not permissible.”
How N.H.’s privacy amendment is being tested elsewhere
New Hampshire’s constitutional right to privacy has also been invoked in recent lawsuits challenging a new voting law, Senate Bill 418.
That law — which is set to take effect in 2023, after this fall’s elections — creates a new provisional ballot system for first-time voters who register without valid identification on Election Day. If those voters don’t return proof of eligibility within seven days of the election, the law says their votes “shall be deducted from the vote total for each affected candidate or each affected issue.”
SB418 is facing two separate lawsuits, each citing the state’s new privacy amendment as part of their arguments for why it should be overturned.
In one case, the American Civil Liberties Union of New Hampshire argues that “the way a person in New Hampshire votes is both ‘private information’ and ‘personal information’'’ under the state constitution.
“SB 418 infringes on that constitutionally-protected information by allowing the Secretary of State and his staff to know how affidavit ballot voters who did not return proof of identity within seven days cast their votes,” ACLU attorneys, representing Democratic state lawmaker Manny Espitia and local activist Daniel Weeks, wrote in a court filing.
Another lawsuit, brought by Washington-based Elias Law Group and other New Hampshire-based attorneys on behalf of a coalition of local voting rights activists, argues that SB 418 “requires election officials to review how a person cast their ballot, at the Secretary of State’s instruction, if that person is not able to comply with the law’s burdensome verification process.”
“SB 418 violates the constitutional right to privacy by requiring that election officials serialize Affidavit Ballots in a manner that allows the government to review how an individual cast his or her ballot — including which candidates the voter cast their ballot for, and how they vote on issues on the ballot,” their complaint reads.
Both of those lawsuits have been filed in Hillsborough County Superior Court South.
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