By DAMIEN FISHER, InDepthNH.org
CONCORD – New Hampshire State Police can’t hide the personnel files of Trooper whose lies reportedly put a woman behind bars for two weeks, according to the New Hampshire Supreme Court.
In a divided ruling issued Wednesday, the Court majority shot down the New Hampshire Division of State Police attempt to shield former Trooper Haden Wilber’s records from a public records request brought by the New Hampshire American Civil Liberties Union.
“Today’s decision is a victory for government transparency. When an individual becomes a law enforcement officer, that individual should expect that their conduct will be subject to greater scrutiny because that is the nature of the job–scrutiny that the Court once again affirmed today,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire. “In this case, both the state police – New Hampshire’s largest police force – and the Attorney General’s Office took the astounding position that disciplinary records in a terminated state trooper’s personnel file should never see the light of day and should never be seen by the taxpayers that fund their operations. Had this troubling position been adopted by the Court, New Hampshire would have entered a dark age of secrecy with respect to police misconduct.”
Merrimack Superior Court Judge John Kissinger ordered the state to hand over Wilber’s files last year, but the Division of State Police appealed, setting up Wednesday’s ruling.
The case before the Supreme Court anonymizes Wilber as “John Doe”, though the facts of the case make it clear Wilber is the officer at the center of the dispute. The ACLU was seeking “[a]ll reports, investigatory files, personnel, and disciplinary records concerning [the former trooper] that relate to any adverse employment action.”
Wilber was fired in August of 2021 after Maine woman Robyn White brought a federal lawsuit against the state over her 2017 arrest during a traffic stop. Because of Wilber’s lies about that stop, accusing White of hiding drugs in her body, the woman spent nearly two weeks in jail during which time she was subject to illegal body searches, including an invasive cavity exam, according to her lawsuit.
The state settled the lawsuit in December of 2021, paying White $212,500. Strafford County paid White an additional $25,000.
Attorneys for the State Police cited a different state law, RSA 105:13-b, to object to releasing Wilber’s records. That law controls how exculpatory evidence is handled for defendants in criminal cases.
Jessica King, the attorney for State Police, argued 105:13-b protects the privacy rights of police officers when it comes to disclosing exculpatory evidence to defendants. Under 105:13-b, only records that are deemed relevant are given to defendants. The rest of the officer’s file enjoys the right to privacy.
But Justice Gary Hicks, writing for the majority, said the state repeatedly misread the law and misconstrued legal precedent. According to the majority, 105:13-b should be applied to how records are released during criminal trials. That does not overrule the 91-A law.
“The Right-to-Know Law and RSA 105:13-b serve different purposes. RSA 105:13-b effectuates a criminal defendant’s State and Federal Constitutional rights to disclosure of exculpatory evidence and also provides a procedure for obtaining non-exculpatory evidence relevant to the defendant’s criminal case,” Hicks wrote. “The purpose of the Right-to-Know Law, on the other hand, ‘is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.’”
Justice James Bassett, the lone dissent, worried that Wednesday’s ruling will lead to defendants being able to access portions of a police officer’s personnel file through a Right to Know request that would not be available under trial rules, bypassing any privacy protections the officer would normally enjoy.
“I believe that, in light of the carefully-crafted statutory framework which governs access to police personnel information under RSA 105:13-b, the majority’s holding that such information is obtainable pursuant to a Right-to-Know Law request is, at best, illogical,” Bassett wrote.
Wilber was fired after State Police brass investigated him over White’s arrest and wrongful detention. According to the termination letter sent to Wilber from New Hampshire State Police Col. Nathan Noyes and Department of Safety Commissioner Robert Quinn, Wilber’s integrity was found wanting.
“The investigation has revealed disturbing facts regarding your investigatory habits and overall integrity as a law enforcement officer,” the letter states. “Your personal conduct as outlined herein reflects negatively upon your character, the law enforcement profession, and is an embarrassment to you, your colleagues and the Division of State Police.”
But, Wilber’s files could shed light on controversial State Police practices.
Wilber was a member of the state’s Mobile Enforcement Team, the State Police unit that is known for so-called pretextual traffic stops. Pretextual stops are when a police officer stops a car for one reason, such as a tail light being out, and then looks for reasons to expand the stop into a wider investigation. Such stops are often associated with racial profiling.
White, now 46, was stopped on Feb. 10 of 2017 on Interstate 95 on the pretext that she allegedly had snow on her rear lights. Wilber illegally searched White’s handbag during the stop, reportedly finding heroin residue, according to White’s lawsuit. Wilber then allegedly concocted a lie that White may have hidden drugs in her vagina as a reason to enhance the charges and keep her held in jail. White was subject to illegal body searches, including an illegal pelvic exam during her 13 days in jail. No drugs were found in her person during the ordeal.
Wilber is also alleged to have searched White’s cell phone during the initial stop, looking for supposed intelligence information to build a drug case against White, according to the termination letter.
The State Police investigation into Wilber’s arrest of White found that Wilber lied on numerous occasions, Noyes and Quinn later state.
When confronted about the illegal cell phone search, Wilber told the investigator that troopers on the Mobile Enforcement Team “do that all the time,” according to the letter.
“That’s, that’s how I’ve been trained,” Wilder reportedly told investigators.
The investigation found that Wilber obtained a search warrant for the cell phone in March of 2017, more than a month after he had already searched it for “intel,” according to the letter.
