By NANCY WEST, InDepthNH.org
CONCORD – The state Supreme Court ruled Friday that the so-called Laurie List of dishonest police officers is not confidential, agreeing with Superior Court Judge Charles Temple’s April 2019 order, but don’t expect to see the more than 270 names on it released any time soon.
The state Supreme Court sent the case back to Superior Court for the judge to determine if release of the names on the list, now called the Exculpatory Evidence Schedule, would violate the officers’ privacy.
“We uphold the trial court’s determinations that the EES is neither ‘confidential’ under RSA 105:13-b nor exempt from disclosure under the Right-to-Know Law as an ‘internal personnel practice’ or a ‘personnel file,’” wrote Senior Associate Justice Gary Hicks.
“Nonetheless, we vacate the trial court’s decision and remand for it to determine, in the first instance, whether as the (Department of Justice) contends, the EES constitutes an ‘other file whose disclosure would constitute invasion of privacy.’”
ACLU-NH represented the New Hampshire Center for Public Interest Journalism, The Telegraph of Nashua, Newspapers of New England, Inc., Seacoast Newspapers, Inc., Keene Publishing Corporation, and American Civil Liberties Union-NH in arguing that the list must be disclosed so the public can hold the police accountable.
Gregory V. Sullivan represented the Union Leader Corporation, and Solicitor General Dan Will represented Attorney General Gordon J. MacDonald.
“Our client is pleased that the Supreme Court’s decision held that the EES list is not categorically exempt from disclosure to the public as a result of RSA 105:13-b, or as an ‘internal personnel practice,’ as argued by the Department of Justice,” Sullivan said. “We are confident that upon remand to the Superior Court the public’s right to know how the government operates, in this case how specific police officers have performed their duties, will outweigh any claimed privacy rights of those officers.”
Gov. Chris Sununu also weighed in on Friday’s ruling.
“I support the LEACT Commission’s recommendation that the Laurie List be made public after steps are taken to ensure that those on the list receive due process. We will work to achieve this goal through the legislature,” Sununu said in a news release. He was referring to the Commission on Law Enforcement Accountability, Community and Transparency.
MacDonald’s spokesman said: “We are reviewing the order to determine our next steps.”
Gilles Bissonnette, ACLU-NH’s legal counsel, said he was disappointed the case was remanded.
“However, we and the communities we represent are disappointed that the Court did not order the immediate release of the List, and instead sent the case back to the lower court for further proceedings to address the public interest in disclosing the List,” Bissonnette said. “Police officers who are named on the List are there because they have engaged in sustained misconduct concerning credibility or truthfulness. The public has a clear right to know this information. In this historic moment, there is a demand for immediate transparency concerning the police. While the Court has temporarily delayed this transparency concerning the List, we will continue to fight for this information.”
On Thursday, the state Supreme Court granted Bissonnette’s request to withdraw as counsel for the New Hampshire Center for Public Interest Journalism. Bissonnette told the Center it was because of disagreements over legal decisions. Before oral arguments, the Center refused to agree to delay arguments so Bissonnette could pursue a settlement with Attorney General MacDonald who initiated the idea.
Bissonnette couldn’t guarantee that all names on the current list would be made public in any settlement with MacDonald so the Center wouldn’t agree to a delay. Bissonnette went ahead with oral arguments but said after that he would move to withdraw as counsel in case the same opportunity for settlement came up if the case was remanded, which it has been.
The New Hampshire Center for Public Interest Journalism remains the lead plaintiff and is looking for new counsel.
See copy of the most recent Laurie List here: https://drive.google.com/file/d/1PumiMcSlQCBqCm9sKkBYNJFUu10GWE8-/view?ts=5f371bab
During oral arguments Sept. 16, Solicitor General Will told the justices that the list is simply a device for prosecutors to reconcile their obligation to disclose exculpatory evidence in police personnel files to criminal defendants as guaranteed by the state and federal constitutions. Exculpatory means it is evidence favorable to the defendant.
“It’s an imperfect list your honors,” Will said. “It was never designed to be some sort of public record or document.”
Bissonnette told the justices that the public should know whether the officers they are paying have credibility issues and which of the officers in individual departments are on the list, not just the number. It’s important that criminal defendants and defense attorneys can also know who’s on the list to make sure they get all of their rights to a fair trial, he said.
“The system we currently have in criminal cases is defendants just have to trust that this is working well, that they are getting everything they are supposed to get with no way of verifying it,” Bissonnette said.
The Attorney General’s Office currently maintains the list of police officers who have engaged in sustained misconduct reflecting negatively on their credibility or trustworthiness.
The court explained that the list is basically a spreadsheet containing five columns of information: (1) officer’s name; (2) department employing the officer; (3) date of incident; (4) date of notification; and (5) category or type of behavior that resulted in the officer being placed on the list. The names and some other information is redacted.
During oral arguments Justice Hicks asked Solicitor General Will if the Attorney General’s Office still maintains that the list falls under categorical exemptions of the state’s right-to-know law given the court’s recent rulings that overturned the so-called Fenniman decision. The two other public records cases decided since MacDonald appealed Judge Temple’s ruling were widely seen as a victory for the public’s right to know about misconduct by public officials that has previously been deemed confidential.
The two cases were filed by the New Hampshire Union Leader and Seacoast Newspapers after they were denied access to documents involving alleged police misconduct in separate public records cases under the internal personnel practices exemption of RSA 91a, the state’s right-to-know law.
In the order Friday, Hicks wrote: “We further observe that were Fenniman still in effect, the EES might be per se exempt from disclosure under the Right-to-Know Law.”
Senior Associate Justice Hicks wrote the decision affirming in part, vacating and remanding in part. Associate Justices Anna Barbara Hantz Marconi and Patrick Donovan concurred; Gillian Abramson and Kenneth Brown, specially assigned retired Superior Court justices, also concurred
