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By NANCY WEST, InDepthNH.org
NASHUA – Solicitor General Daniel Will argued Monday that the redacted names on the highly secretive police Laurie List must remain confidential by state law while ACLU-NH attorney Gilles Bissonnette insisted they must be made public so citizens can hold their government accountable.
Judge Charles Temple heard both sides Monday in Hillsborough County Superior Court South in the public records lawsuit filed by ACLU-NH and media outlets against Attorney General Gordon MacDonald last October.
InDepthNH.org, Keene Sentinel, Nashua Telegraph, New Hampshire Union Leader, Concord Monitor/Valley News, and the Portsmouth Herald/Foster’s Daily Democrat, are fighting for release of the unredacted Exculpatory Evidence Schedule that was formerly known as the Laurie List.
Solicitor General Will told the judge there has been some heated rhetoric in terms of what the case is about.
“Our job as we view it is enforcing the laws that exist,” Will said. “This isn’t a case about the Department of Justice trying to protect the police or trying to be pro-police or anything like that.”
It’s about statutory construction and whether the list is subject to disclosure under RSA 91a, the right-to-know law, and RSA 105:13b dealing with police personnel file confidentiality, Will said.
“It is the language of those two statutes that need to be construed to answer the questions this case presents to you,” Will told Judge Temple. “That’s what this case is about, your honor, no more no less.”
To make the list, an officer must have a sustained finding of misconduct for dishonesty, excessive force or mental illness in his or her personnel file that could be deemed exculpatory evidence – that is evidence that is favorable to the defendant. Prosecutors are constitutionally required to turn that information over to the defense when it involves an officer who may testify against the defendant.
ACLU-NH’s Bissonnette said: “The case concerning disclosure of this list goes to the heart of why Chapter 91a exists, that is to hold the government and its agents accountable.”
Bissonnette recounted how when the case was filed last October there were 171 officer names on the list.
Now the list includes nearly 260 names of officers who have had a sustained finding of misconduct, he said.
“We’re not just talking about misconduct,” Bissonnette said. “We’re talking about misconduct that goes to the credibility and trustworthiness of police officers in New Hampshire. Credibility and trustworthiness go the core of police officers’ duties.”
Citing examples from former Attorney General Joseph Foster’s 2017 updated memo dealing with the list, Bissonnette raised his voice slightly while reciting the kinds of misconduct considered potentially exculpatory:
“A deliberate lie in a court case, falsification of records, any criminal conduct and egregious dereliction of duty among other things.”
Then Bissonnette read from the most recently released redacted list dated Jan. 11, 2019, that included some listings of the category of misconduct next to redacted names and redacted dates for when the incidents occurred.
“Trustworthiness, untruthfulness, dishonesty, criminal conduct, false report. The list goes on and on,” Bissonnette said.
The public needs to know the names of the officers with sustained findings of misconduct, he said. Releasing just the names of the departments where they work taints the whole department and undermines the public’s trust, Bissonnette said.
Production of the unredacted list is also necessary to evaluate whether prosecutors are making the appropriate disclosures to defendants, that they have complied with their constitutional duty to disclose, he said.
Today, the public simply has to trust that the appropriate disclosures were made, Bissonnette said.
“The whole point of (RSA) 91a is trust, but verify,” Bissonnette said.
Attorney Gregory Sullivan told the judge that the matter is much simpler.
“At the outset of the government’s presentation, the court asked what I thought was the key question of the day,” Sullivan said.
He paraphrased and said, “We are talking about the EES list. We are not talking about police personnel files.”
When Sullivan first received one government memo, he got as far as the bottom of page two where it said the “EES itself contains only a brief generic explanation of the officer’s conduct, the details of which remain statutorily confidential.”
The list only shows that a police chief has asked the Department of Justice or a county attorney to add an officer’s name to the list, Sullivan said.
“To me, your honor, that ends all inquiry. We are not talking here about police personnel files. That’s why all the arguments about RSA 105:13b are not relevant at all,” Sullivan said. That statute is talking about police personnel files or arguably information in police personnel files.
“We are talking about a list compiled by the Department of Justice,” Sullivan said.
And while the redacted list of police who have been added to the list appears to be growing rapidly, Senior Assistant Attorney General Geoffrey Ward said after the hearing that some of the increase is the result of his office pulling together information from county attorneys and police chiefs from across the state.
It doesn’t necessarily mean that new officers are being identified who weren’t previously known to prosecutors, Ward said. If new officers are identified, the law requires retroactive notification, Ward said.
Foster’s 2017 memo required that police chiefs review every police officer’s personnel file and turn their revised lists over to the Attorney General’s Office.
The Foster memo also required police chiefs to re-add the name of any officer whose name had been removed after 10 years of good behavior. The previous protocol allowed for such removal.
Legislation sponsored by state Rep. Paul Berch, D-Westmoreland, that would make serious police discipline public and allow officers a process to fight the discipline are being heard in the legislature this week.
“As citizens, we need to know what our employees are doing, especially employees who have the authority to wear a gun and arrest and jail people. People need to know if this authority is being handled in a responsible manner,” Berch said.
Read InDepthNH.org’s full list of coverage of the Laurie List here.
InDepthNH.org is New Hampshire’s only statewide, nonprofit daily news outlet. Reach Nancy West by email at firstname.lastname@example.org