NEFAC Commends New Hampshire Supreme Court Ruling Easing Way for Release of Police, Prosecution Records


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NH Supreme Court Ruling

The New England First Amendment Coalition today commended a recent New Hampshire Supreme Court decision that prevents certain law enforcement records from being automatically withheld under the state’s annulment statute.

The case — Grafton County Attorney’s Office v. Canner — involved a documentary filmmaker and her efforts to obtain police and prosecution records used in a highly publicized rape trial of a Dartmouth College student. The student was later acquitted and had his criminal record annulled.

In its Aug. 23 unanimous ruling, the court rejected the student’s argument that when a criminal record is annulled, the police and prosecution records are automatically exempt from disclosure under the state’s Right to Know Law. While the records could ultimately be withheld under that law, the court ruled, they cannot be denied based solely on the annulment of an individual’s criminal record.

The public’s right to know about its government should not “depend upon whether a defendant was acquitted or convicted,” according to the decision. “The public has a substantial interest in understanding how investigations of alleged crimes are conducted, and how prosecutors exercise their discretion when deciding whether to prosecute, reach a plea agreement, or try cases.”

Robert Bertsche, a member of NEFAC’s Board of Directors and an attorney at Prince Lobel Tye in Boston, represented the filmmaker, Liz Canner, who is producing a film on campus sexual assaults. He said Canner needed the records to help understand and explain why the rape prosecution proceeded as it did.

Bertsche explained to the court on March 3 that the annulment law creates a “legal fiction” which allows a criminal defendant to deny ever having been charged but argued that the law should not be construed to deny journalists access to public records that would otherwise be available.

The court agreed, explaining that:

“Allowing the public to access the records related to Doe’s arrest and prosecution will facilitate a more informed public discussion about the decisions made by law enforcement officials and prosecutors. If records of arresting and prosecuting agencies pertaining to an annulled arrest, conviction, or sentence were categorically exempt from public inspection, any citizen wishing to assess or comment upon the actions of the police or the prosecutor in a given case would be unable to examine the primary sources of information — agency records — and, instead, would have to rely upon media accounts.”

The effectiveness of law enforcement and the judicial system in dealing with issues of sexual assault is being discussed in communities throughout the country, Bertsche said.

“This ruling helps that conversation continue in New Hampshire,” he added. “There is now one fewer roadblock in the way of the public’s access to these records.”


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.