Judge dismisses Monitor, ACLU suit for details of secret police equipment 

Monitor staff
Published: 1/5/2020 7:02:24 PM
Modified: 1/5/2020 7:01:56 PM

A Merrimack County Superior Court judge has dismissed a suit filed by the American Civil Liberties Union of New Hampshire and the Concord Monitor arguing that the Concord Police Department must reveal more information about secret police technology listed in the city’s budget.

A $5,100 line item in last year’s police department budget was set aside for “covert communications equipment.”

City officials argued that they can’t say what the equipment is and what it does – or even which company offers it – because of a nondisclosure agreement with the vendor.

Concord Police Chief Bradley Osgood said that providing public information about the technology, used by Concord Police since 2017, would disclose techniques and procedures for law enforcement investigations.

After reviewing confidential information about the equipment in private, Judge John Kissinger Jr. agreed.

“The nature of the equipment is such that, upon discovery of the information redacted, individuals involved in illegal activity could take measures to circumvent its use,” Kissinger wrote in his Dec. 20 ruling. “If discovered, the effectiveness of police investigations in a number of criminal law enforcement settings would be significantly curtailed.”

Kissinger wrote that these factors, and the fact that disclosing information about the technology could endanger individuals’ safety, were his reasons for denying the Monitor and the ACLU-NH’s request.

The court also denied the ACLU-NH’s requests to confidentially view the unredacted documents in private to better understand Concord Police’s stance. 

Henry Klementowicz, ACLU of New Hampshire staff attorney, said the organization is considering an appeal. He described the decision as “a loss for public transparency of how the government spends taxpayer dollars.”

“We are deeply disappointed by this decision, and believe that there are legal errors in it,” Klementowicz said. “Chapter 91-A is a disclosure statute designed to foster government transparency and accountability, not to withhold such information. These documents should be public.”

The ACLU-NH and the Monitor requested access to documents related to the covert equipment from the police department in May 2019 in separate right-to-know requests, arguing every citizen “the right to inspect all governmental records in the possession, custody or control of such public bodies or agencies.”

The city provided a heavily-redacted license and service agreement back that shed little light on the situation.

The contract for the service was signed Oct. 28, 2017, by former Concord purchasing manager Douglas Ross and states the vendor’s “Website, Applications, or Services” can be used by the city. There isn’t much description of what the company does aside from it offering “technical products and services to law enforcement agencies.”

Redactions in the policy include the vendor’s name, what kind of information it collects and its privacy policy.

The agreement also has stringent confidentiality rules.

“Publicly disclosing the existence, description, functions, operations, capabilities, or use of the website ... could compromise the effectiveness of the technology,” the agreement reads in capital letters.

The agreement also says disclosing the use of the vendor’s services could compromise “public security investigations” and endanger law enforcement lives.

Should Concord learn that anyone – district attorneys, judges or members of the public, for example – are planning to use the information the vendor collects, obtain it through open records laws, or if a judicial or administrative tribunal orders its release, the city is required to notify the secret vendor.

“Licensee will immediately inform (redacted) and cooperate in any effort by (redacted) to intervene and prevent such use or disclosure,” the agreement reads.

Klementowicz said in July, when the suit was filed, that the agreement raises “troubling” questions about the technology and the kind of information the city has been gathering.

“Concord’s effort to keep secret its contract for services and the vendor’s privacy and refund policies should be rejected,” the suit states. “While the nature of equipment the city has purchased is not clear, what is clear is that the city has entered into a non-disclosure agreement with an unnamed vendor that requires the city to take steps to prevent disclosure of important information to courts, grand juries, and defense counsel.”

City Manager Tom Aspell has said the equipment isn’t body cameras or drones.

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