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In court: Police officer privacy versus public’s right to know

  • Attorneys Gregory Sullivan (left) and William Chapman listen during a motion to dismiss hearing at Hillsborough County Superior Court South on Thursday, October 18, 2018. The ACLU-NH and several media outlets are petitioning the state's Department of Justice to release an unredacted Exculpatory Evidence Schedule. Dean Shalhoup—Nashua Telegraph

  • Department of Justice Solicitor Daniel Will speaks during a motion to dismiss hearing at Hillsborough County Superior Court South on Thursday, October 18, 2018. The ACLU-NH and several media outlets are petitioning the state's DOJ to release an unredacted Exculpatory Evidence Schedule. Dean Shalhoup—Nashua Telegraph



Monitor staff
Thursday, October 18, 2018

The public does not have a right to a list of police officers with credibility issues because the list itself is unreliable, the state attorney general’s office argued Thursday.

Since officers have an appeal process to be removed from the list, known as the Laurie List, and any version of it may be inaccurate, the state’s attorneys said.

Lawyers representing the American Civil Liberties Union of New Hampshire and several media outlets told a Hillsborough County Superior Court South judge the list, officially called the Exculpatory Evidence List, should be completely public.

The case stems from a partially redacted list released this summer of 171 officers who have been found to have engaged in misconduct, like lying, falsifying evidence or other criminal misconduct by a supervisor, usually a police chief. The list is maintained by the New Hampshire Department of Justice as a way to alert prosecutors about a police officer with credibility issue, which may help a defendant at trial.

The list was publicly released with officers’ names blacked out.

Media outlets, including the Monitor and the Valley News, the Nashua Telegraph, the Keene Sentinel, Seacoastonline.com, the Union Leader and InDepthNH.com, in conjunction with the ACLU-NH, have made requests that the list be made public.

The idea that the list is fallible is a key part of the state’s argument.

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

Or that’s how it’s supposed to work. But Senior Assistant Attorney General Geoffrey Ward said Thursday that the list isn’t foolproof – partially because every officer on the list has not been given the due process afforded to them by changes made to list in 2017.

The Attorney General’s Office only began maintaining the list in 2017; previously, the various county attorney offices around the state maintained their own lists, Ward said. As the attorney general’s office compiled the various lists, police departments were required to notify officers on the list.

That also began the process of officers, who Ward said did not know they were on the list, of asking for removal.

“You get somebody who says, ‘I was never given notice, never even knew I was on the list. ... This is the first time I’m hearing of it,’ ” Ward said.

There’s no indication which officers are undergoing an appeal process, Ward said, and the state isn’t able to mandate when officers who want due process need to undergo it; that process is left up to the state’s police departments, he said.

But Gregory Sullivan, representing the Union Leader, said their request specifically exempted those officers and questioned the idea that a finalized list will ever exist.

“There’s always going to be people challenging it,” he said.

The state has also argued that releasing a list of names, which doesn’t give any explanation as to why an officer is listed, wouldn’t actually inform the public about police misconduct, but only harm the public’s trust.

Many of the arguments came down to a question of police officer privacy versus public interest.

DOJ Solicitor Daniel Will said the law, and the actions of the Legislature, clearly come down on the side of police officers. The list is created from personnel file information; therefore, it’s protected under the state’s police personnel file law RSA 105:13-b, he said.

If the Legislature wanted those files to be public, they’d make it so, Will said. “We’re in a regime where the Legislature has provided the most confidentiality to police officer’s files,” he said.

The government also has a strong interest in keeping the list private, Will said. Publicizing it could stifle candor among public officers, or keep people with concerns about police officers from coming forward.

Petitioners disagreed that 105:13-b had anything to do with the case, emphasizing that the list is maintained by the DOJ, separate from police department’s personnel files.

“We’re not looking for police personnel files,” Sullivan said. “We’re looking for the EES list.”

And William Chapman, representing the Monitor and other news media outlets, said the public can only hold its officials accountable if they know who has engaged in misconduct.

“Whether it’s the county attorney’s office, whether it’s the Attorney General’s Office ... without knowing who is on the list, there’s no way for the public to do that,” Chapman said.

The DOJ filed a 45-page motion to dismiss the case altogether Wednesday. The ACLU and other parties have 30 days to reply.

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