Deadline is set in Right to Know suit

NASHUA – Superior Court Judge Charles Temple’s order gives the attorneys for the American Civil Liberties Union and several news outlets, including The Telegraph, until Nov. 19 to file objections to the New Hampshire Department of Justice’s motion to dismiss a case involving the state’s Right to Know law.

The order is the latest step in the ongoing lawsuit that media representatives and other public-access advocates filed collectively under the New Hampshire Center for Public Interest Journalism, claiming the names of the police officers listed on the new Exculpatory Evidence Schedule, formerly known as the Laurie List, are public records under the state’s Right to Know law.

State officials disagree. They put forth the argument that the list, which names police officers with credibility issues, is an extension of the officers’ confidential personnel files, and therefore is not subject to the Right to Know law.

While the plaintiffs have until Nov. 19 to file their objection, attorneys for the state must file their reply to the objection motion by Nov. 30, according to Temple’s order.

Temple gave a deadline of Dec. 10 for the filing of a so-called sur-reply, a legal term meaning an additional reply to a motion that’s filed after the motion has already been fully briefed.

The replies and the sur-reply, Temple wrote, “shall be limited to 10 pages per filing.”

Once the court receives the sur-reply, Temple wrote, it will schedule a hearing on the state’s motion to dismiss.

In their original motion to dismiss, DOJ lawyers state “the court need not accept allegations in the complaint that are merely conclusions of law,” even as the court “assumes the truth” of the plaintiffs’ allegations of fact.

Temple, during a roughly one-hour hearing in October, listened to the sides’ respective arguments on the matter, which resulted in the new order.

The suit rose out of a recent petition the ACLU-New Hampshire and the news outlets filed with the court, asking Temple to rule that EES files are public documents.

As of the Oct. 18 hearing, the names of 171 police officers statewide were on the EES, six of whom were in the process of being removed from the list.

In creating the EES, defense attorney Daniel Will argued at the hearing, the DOJ had one purpose in mind: “To alert prosecutors that there may be exculpatory evidence (in an officer’s EES file) that needs to be reviewed.”

Gilles Bissonnette, director of the American Civil Liberties Union of New Hampshire, argued in October that the EES is “not an internal personnel document,” rather it is “maintained by the DOJ” and is therefore an external document.

As it stands now, Bissonnette said, 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.

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.

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