By NANCY WEST, InDepthNH.org
Scott Traudt thought he had a leg up getting confidential Lebanon police records that he believes contain evidence of misconduct after the state Supreme Court recently overturned two cases involving a 1993 ruling that had seriously limited public access to such records until then.
He was sorely disappointed. This week, Grafton County Attorney Martha Ann Hornick turned down his latest request, said there were 34 pages of responsive documents, but all would be redacted under the right-to-know law, RSA 91-a.
Traudt, 54, of Strafford, Vt., said it won’t stop him because he had already been working with attorney Jared Bedrick to appeal his convictions for disorderly conduct and assaulting a police officer, both misdemeanors, to the state Supreme Court and expects to file his brief this week.
This request was just another bite at the apple, said Traudt, who has been fighting the convictions for more than a decade.
“I don’t want somebody else’s life to be totally overturned,” said Traudt, who estimates the case has cost him more than $100,000 in lost pay and legal fees, not to mention lost wages for the 364 days he spent in prison, losing his job in overseas security.
“This is the right thing to do,” said Traudt, who now works as a professional mariner. “I was not a criminal. I have been innocent since the night I was arrested and convicted improperly.”
Traudt and his then-wife were stopped after leaving a West Lebanon nightclub for allegedly going through a red light and got into a dispute with two Lebanon officers.
He was convicted of disorderly conduct and assaulting Lebanon officer Phillip Roberts, who is now deputy chief, during the altercation Jan. 14, 2007, with Roberts and Richard Smolenski, who is now lieutenant bureau commander of the detective division. Traudt was found not guilty of assaulting Smolenski.
Traudt filed the latest right-to-know request June 2 seeking all complaints made by citizens, law enforcement, Lebanon city personnel and others against Roberts, Smolenski, Michael Roberts, and Daniel Gaspard, who testified against Traudt, including internal memos regarding any discipline. Traudt cited one of the recent state Supreme Court decisions, Seacoast Newspapers vs. city of Portsmouth, in his request.
In that case, a reporter was denied access to a union arbitrator’s decision after Portsmouth police officer Aaron Goodwin was fired because of a relationship with an elderly neighbor in which he inherited a $2.7 million estate, an inheritance that was later thrown out in court
A Superior Court judge had ruled it was confidential under the internal personnel practices exemption of RSA 91a. Last month, the state Supreme Court overruled the decision and sent it back to Superior Court, while overturning its own 1993 ruling in the case Union Leader vs. Fenniman.
“An overly broad construction of the ‘internal personnel practices’ exemption has proven to be an unwarranted constraint on a transparent government,” Supreme Court Justice Patrick Donovan wrote. “…(W)e overrule Fenniman to the extent that it broadly interpreted the ‘internal personnel practices’ exemption and its progeny to the extent that they relied on that broad interpretation.”
Right-to-know advocates view the rulings as a major sea change in favor of the public holding police and other government officials accountable.
County Attorney Hornick said she couldn’t discuss specifics of Traudt’s latest right-to-know request, but did say the office took into account the latest state Supreme Court rulings, RSA 91a and what documents they had in their possession.
The 34 pages were not handed over and the response simply said they were all redacted. It listed the category as “personnel files” and the reason as RSA 91-A, IV, Reid v. N.H. Attorney General, 169 N.H. 509 (2016)
In his state Supreme Court brief that Traudt’s attorney Bedrick expects to file this week, he argues that the prosecutor told the jury to believe the officers because they didn’t have any disciplinary records. “And at least one absolutely did at that very moment. (Traudt) deserves a new trial,” Bedrick said.
Bedrick said the Supreme Court has been explicit that if departments want to rely on personnel records, that keeping them confidential has to outweigh the public’s interest in knowing what they contain. Bedrick said especially since the case goes back so long, there is a strong public interest in citizen’s oversight of the history of police discipline.
“Even in their redacted form it is apparent that either Smolenski or Roberts had at least one sustained disciplinary action during his employment with the Lebanon police department that predated the trial at issue. Furthermore (Traudt) learned that claims of excessive force had been made against then-Lt. Roberts,” Bedrick wrote in one filing.
But state Attorney General Gordon MacDonald and Assistant Attorney General Elizabeth Woodcock argued that it was too little too late. The state has already filed its brief in the case.
“The motion for a new trial, filed six years after the discovery of allegedly new evidence, is untimely under RSA 526:4. Although the defendant did not have copies of the affidavits, which were executed in 2013, at the time of his trial, he waited for more than six years before presenting his claim to the trial court,” Woodcock wrote.
The statute, combined with the limitations of actions in other criminal statutes, prohibits a delay of this magnitude, she wrote.
“The defendant has provided this Court with a record that is not sufficient to decide the issue that he has raised. He has provided only redacted copies of affidavits that include no information that would be subject to disclosure under State v. Laurie,” Woodcock wrote. “Therefore, the record that he has provided is insufficient to decide the issue.”