Public granted more transparency to governmental documents in wake of recent rulings

By JAMIE L. COSTA

Monitor staff

Published: 03-15-2023 6:21 PM

Residents statewide have been granted more access to governmental records in recent years following several New Hampshire Supreme Court rulings that have led to a new era of transparency in the state.

For example, law enforcement misconduct records are no longer exempt from disclosure and police discipline hearings and now held in public.

“There is real value in this information so the public can really vet and evaluate these investigations because when these are done in secret, there becomes a lot of suspicion and the court was sensitive to that specific concern,” said Gilles Bissonnette, legal director of ACLU-NH at a panel discussion in February at the University of New Hampshire Franklin Pierce School of Law in Concord.

Law professionals and faculty discussed how these changes and recent trends have and will continue to influence future litigation strategies and extend transparency between government officials and their stakeholders. The means for change was influenced by the murder of George Floyd at the hands of Minneapolis police officers in 2020. A misconduct evaluation was completed on the officers involved and withheld from the public, a decision that sparked outrage and protest across the country.

Between 1993 and 2020 during the dark ages of transparency, the court consistently ruled that the public was not entitled to access disciplinary and misconduct evaluations of government employees, because records related to “internal personal practices” were considered categorically exempt from the transparency requirements of the state’s Right to Know law.

However, Bissonette and attorneys Greg Sullivan and Rick Gagliuso argued the exemption was too broad and was being used to without records that should be disclosed. In 2000, the state Supreme Court agreed and opened the door to disclosure in cases where a compelling public interest outweighed an employee’s privacy concern.

“That would have been automatically denied 20 years ago,” said Jim Kennedy, city solicitor for the city of Concord. “Now, looking at a police investigative file will be subject to public disclosure.”

The Supreme Court’s ruling quickly led to greater access to records, including the Concord School District investigation into the handling of sexual abuse allegations by former teacher Howie Leung. The district had argued it was exempt, but after the Supreme Court’s ruling released a copy of the independent report with student and staff names removed.

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The decision has allowed the public and lawmakers more information than they’ve ever had before.

Now, if a governmental agency denies access to a public record, a member of the public may file a lawsuit where a judge will decide via a balancing test if the municipality’s decision should be upheld by weighing the privacy concerns against public interest.

Exemptions still exist. If the release of the document could interfere with law proceedings, disclose techniques, procedures and guidelines of law enforcement investigations or endanger the life of the officer or others listed in the reports, the court will often uphold the municipality’s decision to withhold the information, Kennedy said.

With increased transparency comes increased scrutiny during a time when police have been under the microscope of the nation for years, primarily following fatal encounters with Black men and women.

In New Hampshire, law enforcement is pushing back – especially state police who have claimed that the public doesn’t need to know if a police officer engages in misconduct, citing separate statutes and privacy protections for police. Bissonnette is arguing for disclosure, saying the police want to create a special privacy right unique among all public employees.

“There are many towns and cities that have demonstrated a willingness to produce a lot of this information since the decision in May 2020,” Bissonnette said. “But there is still a lot of backlash, not coming from municipal lawyers, but coming from police officers.”

Bissonnette, who was recently recognized for his work upholding the First Amendment, remains hopeful that the law will continue to improve in the favor of transparency despite the amount of work that needs to be done.

“We are three years removed and we are seeing a lot more transparency and learning more about the government than we’ve learned before,” he continued. “It highlights how significant these decisions are and enhances the public’s ability to know what the government is doing and hold them accountable which is one of the foundational testaments of living in a democracy.”

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