N.H. Supreme Court hears arguments over secret Concord Police equipment


Monitor Staff
Published: 2/11/2021 3:21:42 PM

Releasing any information about secret police equipment – how it’s used and even who the city is paying for it – absolutely could not be done for several legitimate reasons, including the safety of the city’s officers, Concord City Solicitor James Kennedy told the New Hampshire State Supreme Court.

“We’re talking about putting officers’ lives ... at risk,” Kennedy said, as well as “interference with pending police investigations.”

The court heard these oral arguments Thursday morning in an appeal of a Merrimack County Superior Court dismissal of a lawsuit filed by the American Civil Liberties Union of New Hampshire ACLU and Monitor seeking access to city records related to the secret technology used by the Concord Police Department.

The ACLU and Monitor argued that the public had a right to know about the nature of the secret police equipment, which was paid for with taxpayer money and filed suit after the city refused to disclose information about a $5,100 line item in the 2019 Concord Police Department budget set aside for “covert communications equipment.”

Superior Court Judge John Kissinger Jr. sided with the city, ruling that the nature of the equipment, if redacted, would allow for criminals to circumvent its use and would endanger individuals’ safety.

The appeal was based on the procedural question of Kissinger’s decision to review confidential information about the technology in private, as well as the question of whether the city successfully presented the merits of its argument, ACLU-NH Staff Attorney Henry Klementowicz said.

“The purpose of the right to know law is to provide public confidence and transparency and accountability,” Klementowicz said. It’s difficult, he said, for the public to have confidence in the police department “when there’s information that’s kept secret and the only people who ever look at that information work for the government.”

The justices questioned both lawyers on their arguments.

“Technology is probably the most dynamic phenomenon in our lives these days, isn’t this just a matter of time before this is discovered?” Senior Associate Justice Gary Hicks asked.

Kennedy responded, “When the cat’s out of the bag, it’s out of the bag, and this equipment will no longer be useful.” Until then, he said, it should remain secret, he argued.

Additionally, the justices asked how the technology was used in criminal cases and whether it was disclosed to defendants.

“There’s no question regarding whether or not it’s being used to circumvent rights of criminal defendants,” Kennedy replied.

Klementowicz argued that being in the dark regarding the nature of the technology handicapped the ACLU’s ability to make a more reasoned argument in favor of making the records public. Hicks asked if he could simply trust the justices’ evaluation of the technology involved.

Klementowicz said that trust was not the issue, but rather that “the procedure was unfair, and it’s contrary to standard notions of due process and procedural fairness.”

The city of Concord signed a non-disclosure agreement that states it will not release the name of the equipment’s vendor.

“So what’s the problem with identifying the vendor?” Associate Justice Patrick Donovan asked.

Kennedy responded that the vendor has a “primary product,” and that identifying the vendor would lead to easy deduction about the nature of the equipment.

City Manager Tom Aspell previously said that the equipment in question is not body cameras or drones, and Police Chief Bradley Osgood has said that it is used by many police departments nationally.

Following oral arguments, Klementowicz said the public deserves to know more, at the very least to “evaluate whether it’s a wise investment.”

“We still do not know what the secret ‘covert communications equipment’ purchased by the Concord Police and funded by taxpayers is, and we have no idea how it is being used against individuals,” Klementowicz said. “The trial court agreed with the city on the basis of one-sided testimony that we did not have a chance to challenge.”

The New Hampshire Supreme Court will deliver its ruling on this matter sometime in the months to come.

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