District maintains law delayed release

Monitor staff
Published: 7/14/2020 5:48:33 PM

It was state law and not the actions of the school board that delayed the public disclosure of an investigator’s report into sexual misconduct allegations in the Concord School District, according to Interim Superintendent Kathleen Murphy.

It’s the same position the school district has maintained since it received the 115-page report in September that led to the immediate resignations of former superintendent Terri Forsten and high school principal Tom Sica. It’s the same argument the school district’s lawyers made before a judge in January when they argued the public had no right to see the contents of the report.

They were wrong all along, said Gilles Bissonnette, legal director of the ACLU of New Hampshire, who argued in favor of public disclosure.

“Nothing in our right-to-know law bars a government agency from voluntarily producing information that may be exempt from disclosure, especially where the information – like this report – is obviously in the public interest and indicates government misconduct,” Bissonnette said Tuesday.

On Monday, following a 10-month battle for its release, the Concord School District published a redacted version of the report compiled by Djuna Perkins investigating administrators’ response to accusations of misconduct by former teacher Howie Leung .

A question-and-answer section posted on the school district website by Murphy explained that the report was withheld entirely due to state and federal privacy laws.

“There was substantial board discussion at the time as to whether it might be possible to redact the report sufficiently to make it comply with those laws but it was thought to be not possible,” the statement said.

The 115-page report details the repeated failures of school administrators to investigate reports of Leung’s misconduct, allowing him to prey on students for years before his arrest in April 2019.

Since the report included testimony and personal records of current and former staff, the district maintained it was “categorically exempt” from public disclosure under the right-to-know because it related to “internal personnel practices.”

In November, the Monitor, American Civil Liberties Union and Concord parent Dellie Champagne filed suit against the School Board to release a redacted version of the report, arguing it contained information essential to the safety of the school district’s students. While the case isn’t over, the district chose to release a redacted version of the report without being ordered to by a judge.

The exemption cited by the district was spelled out in the 1993 New Hampshire Supreme Court case Fenniman v. Union Leader, which has long been used to keep records containing information about government employees under wraps.

In two similar cases, the Portsmouth Herald sued the city for records relating to police officer Aaron Goodwin, who was fired in 2015 after he accepted a $2 million inheritance from an elderly woman with dementia. The Union Leader filed suit against the city of Salem for a investigation report on misconduct by city police in 2019.

Both cities cited the exemption to avoid handing over the requested documents in full, but unlike the Concord School District, they still released portions of the records.

Lawyers for the Portsmouth Herald and Union Leader, including Bissonnette, argued the exemption was too broad and was being misapplied. Earlier this year, the Supreme Court agreed.

The district elected to release portions of the report after the New Hampshire Supreme Court overturned the broad scope of the exemption in two May rulings.

“It was these court decisions that allowed the Concord School District to have legal counsel prepare and release the redacted report,” Murphy posted on the district website Monday.

Bissonnette said the school district’s reluctance to release the report is a cause for concern because of the delay it caused and its cost to Concord taxpayers.

The district spent $16,500 in an attempt to dismiss the lawsuit to make the report public, according to school financial records.

“The district needs to better explain to its residents why it voluntarily and unconscionably withheld from the public this vital evidence of government mismanagement for 10 months,” Bissonnette said in the statement.

Monitor editor Steve Leone said the public deserved to know what was in the report.

“The community finally has a more complete picture of Howie Leung’s time in the Concord School District, and how administrators responded to complaints made by staff and students,” Leone said in a statement. “We do wish this information had been made available back in September, when the report was released to the Concord School Board. It should not have taken a lawsuit, and great public expense, to bring this information to light.”

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