Police Misconduct Records in New Hampshire

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(Last updated Dec. 7, 2022)

New Hampshire’s Right-to-Know Law states that “openness in conduct of public business is essential to a democratic society.” (1) Those words are central to the law’s objective: steer the state toward “disclosing the utmost information” to foster transparency and public access. (2) As recently as 2020, the state’s Supreme Court made significant decisions that helped steer law enforcement agencies toward that transparency. But despite these favorable rulings, efforts to maintain secrecy continue.

Public records in New Hampshire are generally governed by RSA Chapter 91-A. This, along with Part 1, article 8, of the New Hampshire Constitution, guarantees that “right of access to . . . records shall not be unreasonably restricted.” (3) The operative phrase here is unreasonably restricted, suggesting that there are times when records may be kept confidential for a variety of reasons. One of those reasons is reflected in an exemption to the Right-to-Know Law that allows agencies to keep secret “internal personnel practices” or records that would, if disclosed, “constitute invasion of privacy.” (4)

Despite the spirit of transparency throughout New Hampshire’s Constitution and Right-to-Know Law, state Supreme Court precedent allowed law enforcement agencies to use this personnel exemption to keep misconduct records mostly secret for nearly 30 years. (5) In the 1993 case, Union Leader Corp. v. Fenniman, the court found that the exemption applied to investigatory documents from the Dover Police Department and then-Chief of Police William Fenniman. (6) The documents sought by Union Leader concerned a lieutenant accused of making harassing phone calls and who was subsequently suspended for being dishonest to investigators. (7)

The Fenniman court held that the personnel records in question were exempt by deferring to the plain meaning of the words “internal,” “personnel,” and “records,” in addition to consulting legislative history and intent. (8) Taking the words on their face to include police personnel records and citing legislators’ comments that “police investigations . . . will remain confidential under the Right-to-Know law,” the state Supreme Court provided law enforcement a shroud of secrecy for decades. (9)

In a series of 2020 cases, however, the Supreme Court took a sharp turn away from Fenniman, overruling itself and rebalancing its interpretation of the Right-to-Know Law in favor of public access to police misconduct reports. (10) In Seacoast Newspapers, Inc. v. City of Portsmouth, the court held that the exemption for “internal personnel practices” did not extend to information pertaining to the history and performance of employees. (11) Then, on the same day, the court ruled in Union Leader Corp. v. Town of Salem that concern for the privacy of law enforcement officers did not warrant a categorical exemption from the Right-to-Know Law but instead required a three-step balancing test: (12)

1. Is there a privacy interest at stake?
2. Is there a public interest in disclosure?
3. Does the public interest in disclosure outweigh the government’s interest in nondisclosure and the officer’s privacy interest?

In October 2020, the state Supreme Court ruled in N.H. Ctr. For Pub. Interest Journalism v. N.H. Dep’t. of Justice that the so-called Laurie List — a document containing the names of more than 270 police officers with a history of misconduct — could not be withheld under the exemption for “personnel” related information. (13) Now called the Exculpatory Evidence Schedule or ESS, the list doesn’t disclose all the information about the misconduct but it does provide the officer’s name, department, relevant dates and the type of misconduct involved. Rejecting the government’s argument that the personnel exemption applies to the EES, the court made clear that the exemption applies only generally to the files themselves and not all the information contained within them. (14) Ultimately, the court held that the separately compiled EES is not a personnel record as intended by the statute and the information provided by the list cannot be withheld based on the personnel exemption. The court remanded the case for consideration of whether public disclosure of the EES would constitute an invasion of privacy under Union Leader Corp. (15) While on remand, the legislature enacted HB471, which publicly released much of the EES under a new process. (16)

Perhaps the most significant recent decision employing this new balancing test is Provenza v. Town of Canaan. (17) The town of Canaan in that case commissioned a report after a motor vehicle stop by police led to an allegation of excessive force. The New Hampshire Supreme Court determined that the report was not exempt from disclosure under the Right-to-Know Law, even where the report concluded that the allegations were not sustained. The court found that the public interest in disclosure was significant because “[t]he public has a substantial interest in information about what its government is up to, as well as in knowing whether a government investigation is comprehensive and accurate.” The court even went so far as to cite a Wisconsin case stating that when an individual “becomes a law enforcement officer, that individual should expect that his or her conduct will be subject to greater scrutiny. That is the nature of the job.”

Despite these favorable rulings, the New Hampshire Department of Safety is now urging the state’s Supreme Court to hold that police personnel records are still exempt from public records requests under a different statute. (18) The appeal follows a May 2022 ruling in which Merrimack County Superior Court Judge John C. Kissinger held that police records’ confidentiality must be balanced against the public interest. (19) The ruling was in favor of the ACLU of New Hampshire in a case involving a state trooper who improperly charged and searched a motorist in 2017 and then lied during the investigation, subjecting the motorist to further searches. (20) The ACLU sought records about the investigation and any other disciplinary history. (21) The appeal is ongoing.

NEFAC filed an amicus brief in the case, reminding the court of a principle relevant to all requests involving police misconduct records: “Transparency and accountability lead to trust between the citizenry and the government,” the coalition wrote. “The need for such trust is critical when the governmental actors are authorized to effectuate arrests and to use force when necessary.” (22)

(1) See N.H. Rev. Stat. Ann. § 91-A:1 (2022).
(2) See N.H. Ctr. For Pub. Int. Journalism v. N.H. Dep’t of Just., 173 N.H. 648, 653 (2020); Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 325, 335 (2020); Union Leader Corp. v. N.H. Hous. Fin. Auth., 142 N.H. 540, 546 (1997).
(3) See N.H. Att’y Gen., Right-to-Know Law Memorandum (2015).
(4) See RSA Chapter 91-A:5.
(5) See Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993).
(6) Id. at 625
(7) Id.
(8) Id. at 626-27
(9) Id.
(10) Major Wins for Transparency: How the N.H. Supreme Court Reshaped the Right to Know Law, NEFAC (June 29, 2020); Kallie Cox and William Freivogel, Analysis of Police Misconduct Record Laws in all 50 States, Associated Press (May 12, 2021).
(11) See Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. 325, 339 (2020)
(12) See Union Leader Corp. v. Town of Salem, 173 N.H. at 345, 357 (2020).
(13) The Laurie List: Access the Names of Police Officers with Credibility Issues, NEFAC (Nov. 6, 2020); Todd Bookman, N.H. High Court Rules List of Police with Credibility Issues Not a Confidential Document, NHPR (Oct. 30, 2020); N.H. Ctr. For Pub. Int. Journalism v. N.H. Dep’t. of Justice, 173 N.H. 648, 651 (N.H. 2020).
(14) N.H. Ctr. For Pub. Int. Journalism, 173 N.H. at 657.
(15) Id. at 659.
(16) Jason Moon, N.H. Police Unions, Newspapers, A.G., Agree On Bill To Make ‘Laurie List’ Public, NHPR (April 15, 2021).
(17) See Provenza v. Town of Canaan175 N.H. 121 (2022).
(18) Paul Cuno-Booth, NH Justice Department to Appeal State Trooper Personnel Records Release, N.H. Business Review (June 16, 2022); See also Am. Civ. Liberties Union of N.H. v. N.H. Dep’t of Safety, No. 217-2022-CV-00112 (N.H. Super. Ct. 2022)
(19) See Am. Civ. Lib. Union of N.H., No. 217-2022-CV-00112, slip op. at 20.
(20) Id. at 3.
(21) Id. at 6.
(22) See NEFAC Fights for Police Misconduct Records in New Hampshire, Submits Amicus Brief in Right-to-Know Law Case (Nov. 8, 2022).