A case to decide whether a state-maintained list of police officers who have engaged in misconduct should be made public is now in a Superior Court judge’s hands.
During a two-hour hearing in Hillsborough County Superior Court South on Monday morning, representatives of several New Hampshire media outlets and the American Civil Liberties Union of New Hampshire made their final arguments why the Exculpatory Evidence Schedule (EES List), formerly known as the Laurie List, is not exempt from public disclosure.
The list includes names of officers who have been found by a supervisor to have engaged in like conduct like lying, falsifying evidence or other misconduct. As of late last year, 249 officers were included on the list; their names have not been publicly released.
It could be months before the case is resolved, and an appeal of Judge Charles Temple’s decision to the Supreme Court is possible from either side once a ruling is made.
Two bills making their way through the State House may render the whole conversation moot before a decision is reached.
One bill, House Bill 155, would cut to the heart of the matter by repealing the law that governs the confidentiality of police personnel files.
That statute, RSA 105:13-b, is critical to the state Department of Justice’s case, who has equated the EES List with police personnel information, since it comes from an officer’s personnel file.
“Where it comes from, that’s what it’s part of,” said Assistant Attorney General Daniel Will on Monday. “I don’t think it’s the proper interpretation to say that when (the information) moves from the police department to the Department of Justice, it changes.”
Gilles Bissonnette, legal director for ACLU-NH, saw it differently, noting that the law only mentions the personnel files of police officers who are involved in criminal cases – not police officers as a whole.
He also noted the list is only maintained as a reference tool for prosecutors, who are required to look into and disclose to defendants if a police officer involved in their case has exculpatory evidence in their personnel file.
“This list is not created in the context of employee investigation and discipline,” he said. “It has no employment purpose at all.”
As of late last year, not every police department had informed the attorney general’s office what officers should be on the list, meaning the list was still in the process of being updated. No process or rule forces departments to provide that information, officials with the state Department of Justice have said.
An officer’s name stays on the list regardless of whether he or she are still with the department where misconduct was determined to have occurred, Will said. But even if the officer leaves – perhaps to go to another department – confidentiality would still be maintained, he said.
Initially, before the House’s criminal justice committee, HB 155 has been moved to the Judiciary Committee. It has a public hearing Tuesday at 1:30 p.m.
Further along the legislative process is House Bill 153, which is up for a House floor vote on Wednesday. That bill would make police disciplinary records where a “final adjudication” of matters such as sexual assault, dishonesty, discharge of a firearm leading to death or injury, perjury or falsification of evidence public under RSA 91-A.
It was amended last week to clarify that personal information of victims or other private persons mentioned in the records could be withheld.
That would also touch on another aspect of the state’s argument. On Monday, Will said the government has a “strong interest” in nondisclosure because doing so protects individuals who report police misconduct.