News outlets petition DOJ over list of officers with credibility issues

Monitor staff
Published: 10/5/2018 10:22:37 AM

Several news outlets, including the Monitor and the Valley News in West Lebanon, have joined the American Civil Liberties Union of New Hampshire in petitioning the state’s Department of Justice to release an unredacted list of police officers with credibility issues.

The petition, filed on Friday in Hillsborough County Superior Court South, asks the court to recognize the Exculpatory Evidence Schedule (EES), formerly known as the Laurie List, as a public document. It includes the Union Leader, Seacoastonline, the Keene Sentinel, the Nashua Telegraph and InDepthNH.

While the office released a list that included 171 entries as of June 1, it has declined to include officers’ names, saying it “would constitute an invasion of the name law enforcement officers’ privacy.” They have argued being included on the list is a personnel issue for officers.

Petitioners disagree.

“The EES list is a separate and distinct record prepared and maintained by the Department,” the petition, filed by attorneys William Chapman and Gregory Sullivan, as well as ACLU attorneys Gilles Bissonnette and James Moir. “Any minimal privacy interest held by the 171 officers on the list ... must yield to the central purpose of the public’s right to know: to know what police officers are up to so the public can hold them accountable.”

The history of the list

There’s no statute that requires the EES list to be maintained; it was created in 2004 by then-Attorney General Peter Heed as a way for prosecutors to identify information about a police officer’s credibility that may need to be turned over to a defendant.

Names are only added after an investigation and a decision from a police chief. A name can be removed from the list if a police chief determines the allegation against the officer was not credible.

A major change to the list occurred earlier this year, when Attorney General Gordon MacDonald announced in conjunction with Gov. Chris Sununu and the New Hampshire Police Association that the list would include only “allegations of misconduct (by police officers), which are sustained after an investigation,” and changed the name to Exculpatory Evidence Schedule.

The move fulfilled a campaign promise Sununu made and earned him the endorsement of the police association.

Bissonnette and defense attorney Robin Melone criticized the decision, saying in a June Bar News op-ed that the decision wrongly tries to give police officers the same rights as defendants. It also relies on officers who are under review to report their status to a prosecutor.

Several police departments with multiple officers on the list, including Manchester and Nashua, have included language in their collective bargaining that allows officers to get off the list after certain conditions have been met.

Local departments on the list include Concord, which has two names, and Weare, which has six. Statewide departments are also included – the New Hampshire State Police has eight names; the Fire Marshal’s Office has two.

The arguments

Several of the outlets petitioning the court were told that releasing the names on the list, while of interest to the public, would do little to enlighten the public about officer conduct.

Disclosure of the list would do little to “inform the public about the conduct and activities of their government,” Senior Assistant Attorney General Francis Fredericks wrote to the Monitor in September.

Fredericks also argued that because the list doesn’t contain the context of what caused an officer to be added, releasing it would only serve “to label particular officers as generally not credible.” The AG’s office has also said releasing the information would be akin to releasing personnel information, which is fiercely protected under the state’s public record laws.

But petitioners say the law is on their side, as explained in the 2010 Supreme Court decision Prof’l Firefighters of N.H. v. Local Gov’t Ctr.

That ruling uses three steps to determine when public records should be disclosed: whether there is a privacy issue; whether there is public interest, and whether the public’s interest in disclosure outweighs the government’s interest in nondisclosure.

The EES list meets none of these requirements.

“Police officers perform vital functions on behalf of the public, and their misconduct creates the potential for considerable social harm,” the petition states.

There is also no risk that releasing the names would impact current criminal investigations, petitioners say.

Moreover, the ACLU and news outlets argue the list does not constitute personnel information, as the law only protects information in a public employees’ personnel files – and if it did, the public’s interest outweighs any minimal privacy rights officers would have.

“Keeping information secret, especially when it comes to police behavior and how prosecutors do their jobs, only creates distrust and suspicion that minimizes the hard work and dedication shown by the overwhelming majority of law enforcement professionals,” petitioners wrote.

There is risk, however, that the list may not function the way its supposed to.

For example, a lie told by former Nashua police Chief John Seusing while he was a junior officer in the mid-1980s was never disclosed, except for once, in decades of police work.

In 2013, a defendant was not told the Pelham police officer who arrested him was on the Laurie List, causing a jury’s guilty finding to be overturned.

In 2014, the AG’s office alleged that a Rockingham County attorney improperly removed an officer from the list.

There may be other examples, petitioners note – “but the public and defendants would never know because this system operates in total secrecy,” they wrote.

(Caitlin Andrews can be reached at 369-3309, or on Twitter at @ActualCAndrews.)

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