Ray Duckler: To record, or not to record; that is the question
He may not know it yet, but Joe Hamel owes Rep. Rick Watrous a cup of coffee.
At the very least.
Watrous is the voice and face behind House Bill 1550, legislation aimed at permitting the audio and video recording of public officials while they do their job.
One of three sponsors of the bill, Watrous stated his case yesterday in front of the Criminal Justice Committee. Meanwhile, Hamel, notified by Watrous via email about the proceeding, was nowhere to be found.
Too bad. Hamel, for the most part, would have loved what was said.
Some may remember Hamel, the subject of a column I wrote seven months ago. He said at the time that the city’s health and licencing officer, Gene Blake, had falsely told him he had no recourse after a board rejected Hamel’s application to drive a cab.
Hamel taped Blake because he believed his right to an appeal was being dismissed, and he wanted proof that Blake was “blowing him off,” as Hamel would say later.
In April, Hamel called city officials to push for an appeal, which he got. There, he revealed that he had taped Blake for his own protection.
Several days later, Hamel said five police officers entered his apartment, forced him and his girlfriend out of bed and onto his porch, seized the recording device he used to tape Blake and charged him with illegal wiretapping.
John Duval, Concord’s chief of police at the time, said his department had
probable cause for a search warrant. Eventually, though, city prosecutor Tracy Connelly dropped the charges. Hamel’s attorney said his client’s civil rights had been trampled.
He moved out of Pembroke, saying he had lost faith in the police and our justice system. He didn’t answer my email yesterday seeking comment.
That brings us back to Watrous, who saw my column on Hamel and is now trying to change the law.
Or at least make it free from confusion.
“The New Hampshire law is not clear on this,” Watrous told me before yesterday’s hearing. “That’s why Mr. Hamel got arrested.”
Hamel’s case was thrown out once Connolly got wind of Simon Glik, a Boston man charged with illegal wiretapping after using his cell phone to document what he thought was police brutality during an arrest.
The U.S. Court of Appeals for the First Circuit ruled two years ago that Glik’s rights had been violated, and that decision, it turned out, extended north, to New Hampshire.
“A case law came up after the arrest,” Connolly said at the time, explaining why charges had been dropped.
Yesterday, Ann Rice, the state’s deputy attorney general, testified against the bill, saying it needed more clarity. She also said she had grown concerned after the Glik ruling, and she added that her office took steps to make sure the Hamel case would not be repeated here.
“We sent out a letter from our office notifying all police departments and all prosecutors of the Glik decision to make sure those sorts of circumstances did not happen,” Rice said. “I don’t know timing wise if our notice had gone out at that point, but certainly if that’s the issue, I’m certainly willing to send out another letter, and I think it’s important.”
Rice obviously knew potential problems lay on the horizon in our state after the Glik decision in Massachusetts.
But she stopped short of full support yesterday because Watrous’s bill, which was also sponsored by Reps. Mark Warden and Tim O’Flaherty, remained fuzzy to her. David Hilts, legal counsel for the Department of Safety, also raised concerns.
An audio recording, according to the bill, would be permitted as long as it “does not physically interfere with the public official’s ability to perform his or her official duties.” But, they asked, what constitutes physically interfering?
And what about the definition of a public official? Does that refer to only those who are paid? And then there’s a conversation between a public official and a private citizen. Is that fair game for a third party to record?
It all depends on who you ask.
Garret Ean, formerly of Concord, is a member of the Robin Hooders, the Keene group that rushes to feed meters before parking officials can write tickets, then videos their reactions.
He sported a giant Afro that looked like a shrubbery and reflected his anti-conformity views. He said there should be no boundaries when it comes to taping conversations.
“All recordings should be legal,” Ean said.
Ean and Hamel had been emailing each other once the Hamel story broke. “I don’t know where Joe is now,” Ean said. “I haven’t spoken to him since before your article was written.”
Had he shown up, Hamel would have liked Rep. Steve Vaillancourt, a member of the committee known for his provocative views.
“You mention the Glik case,” Vaillancvourt said to Rice. “Would you like to comment on what happened to Joe Hamel?”
“I don’t know about that specific case,” Rice answered. “I don’t know why that arrest was made.”
Vaillancourt repeated his question to others who testified, mindful to keep Hamel’s experience out front.
“I don’t think any citizen should have to endure what he endured,” Vaillancourt said.
Had he been there, Hamel surely would have agreed.