News organizations suing N.H. for police records

NASHUA – Six news outlets, including The Telegraph, and the American Civil Liberties Union of New Hampshire are suing because Granite State officials refuse to release a list containing the names of police officers who may have credibility issues.

Attorneys with the New Hampshire Department of Justice argue the state’s Exculpatory Evidence Schedule is no different than each officer’s own personnel file in that both are highly confidential and, therefore, exempt from the state’s Right-to-Know law. The attorneys representing the media are vigorously challenging that assessment, contending the EES and officers’ internal personnel files are two distinctly different sets of documents when it comes to confidentiality.

Hillsborough County Superior Court-South Judge Charles Temple on Thursday heard arguments on both sides of the issue. The roughly one-hour hearing brought to the podium a total of six lawyers, three from each side, who often read from previously filed documents, the largest of which was the DOJ’s 45-page memorandum supporting its motion to dismiss the case.

No rulings were handed down Thursday.

The sides agreed to file any additional motions within 30 days, and if either side wants to file a reply, it will do so within 10 days in a document that is no longer than 10 pages.

As with officers’ personnel files, DOJ attorney Daniel Will argued, EES documents are confidential under state statute. The EES, which currently includes the names of 171 police officers statewide, six of whom are in the process of being removed from the list, has one purpose, Will said: “To alert prosecutors that there may be exculpatory evidence (in an officer’s EES file) that needs to be reviewed.”

Created in 2017 to replace the so-called Laurie List, the EES is maintained by the Department of Justice, not by various county attorneys’ offices, as was the case with the Laurie List.

Critics of the EES say the way it is structured adds another layer of secrecy to society’s right to hold its public officials accountable.

ACLU-NH Director Gilles Bissonnette agrees, telling Temple on Thursday that the EES “is being withheld by the Department of Justice … it’s being treated as a secret document.”

While he and other attorneys representing the petitioners said they are not challenging the confidentiality of police officers’ internal personnel files, Bissonnette pointed out that the EES is “not an internal personnel document;” rather it is “maintained by the DOJ” and is therefore an external document.

Further, the EES, Bissonnette argued, does not exist “to make employment or human resources decisions regarding the officer. Rather, it exists to make sure disclosures are made in accordance with Brady.”

He referred to the 1963 U.S. Supreme Court order ruling that the prosecution must disclose material favorable to a defendant if requested to do so.

Attorney William Chapman pointed out that police officers are added to the EES “only after he or she has undergone due process.”

Attorney Gregory Sullivan was a bit more direct.

“There is no exemption for law enforcement records in the right-to-know law. None,” he said.

What the DOJ is arguing, Sullivan said, is “the disclosure of (the EES) records would be an invasion of (officers’) privacy.” While that holds for internal personnel files, he added, “that’s not what we’re talking about here.”

Simply put, personnel files and the EES list are “two separate documents,” Sullivan said. “One is the officer’s personnel file, which is exempt” from the right-to-know law. “The other (the EES) was created by the Department of Justice. It is not exempt.”

“We’re not looking for officers’ personnel files. We’re looking for the Department of Justice’s EES list,” Sullivan added.

Will, the DOJ attorney, said the state’s goal in contesting the petition amounts to “enforcing the current law.

“If police personnel files were public, we wouldn’t be here today,” he said. “But the Legislature has made it very clear … that police personnel files are strictly confidential, except as to the discharge of prosecutors’ obligations to provide exculpatory evidence to a criminal defendant.”

Dean Shalhoup can be reached at 594-1256, or dshalhoup@nashuatelegraph.com or @Telegraph_DeanS.