Secrecy Over State’s List of Problem Police Officers Drives Suit

MANCHESTER, N.H. (CN) - The publishers of New Hampshire’s top news outlets took the state to court Friday for stonewalling their access to a secret list of police officers whose records of misconduct might raise eyebrows.

Filed in the Hillsborough Superior Court with local firms Orr & Reno and Malloy & Sullivan, the 33-page petition comes nearly six months after Governor Chris Sununu and New Hampshire Attorney General Gordon MacDonald announced procedural changes governing what is known as the Exculpatory Evidence Schedule.

As noted in a July report from the New Hampshire Center for Public Interest Journalism, one of seven co-plaintiffs that took the state to court on Friday, New Hampshire maintains the schedule, or EES, so that prosecutors can keep tabs on officers whose disciplinary records might impeach their testimony at trial.

In keeping with the 1963 U.S. Supreme Court case Brady v. Maryland, prosecutors must disclose such exculpatory information to defendants, and New Hampshire formerly referred to its schedule as a Laurie list after a 1995 New Hampshire Supreme Court ruling.

On its watchdog news website InDepthNH.org, the New Hampshire Center for Public Interest Journalism reported in July that the state’s newly adopted procedures are meant to protect the identities of officers under investigation.

Instead of placing names on the list, according to the memo, the state now expects officers to “notify the prosecutor in any case in which they may be a witness that they are under investigation.”

The center had asked the state Justice Department for “the most recent EES list” as part of that article, but it notes that the June 2018 version that the state produced redacted “the names of the officers, the date of incident, and other information.

“We have redacted information which would constitute an unwarranted invasion of an individual’s privacy,” the state said of its list of 171 officers, as quoted in the petition.

Joined by five other publishers and the American Civil Liberties Union of New Hampshire, the center says the law on public records supersedes the state’s concerns.

“Any minimal privacy interest held by the 171 officers on the list, who have engaged in conduct that bears on their credibility or truthfulness, must yield to the central purpose of the public’s right to know: to know what police officers are up to so the public can hold them accountable,” the petition states.

The petitioners claim they’re not asking for full personnel files, just the names of officers who have not challenged their placement on the list or “for whom there has been a sustained finding of misconduct affecting the officer’s credibility or truthfulness.”

“Granite Staters have a right to know when law enforcement officers engage in conduct that impedes their ability to serve the public effectively in court as a testifying witness,” ACLU-NH Legal Director Gilles Bissonnette said in a statement Friday.

“Any privacy interest held by the officers in these situations is minimal, particularly in comparison to the public’s compelling interest in learning this information,” added Bissonnette, who is co-counsel on the case.

The challengers insist that disclosure of the list is a matter of accountability.

“Keeping information secret, especially when it comes to police behavior and how prosecutors do their jobs, only creates distrust and suspicion that minimizes the hard work and dedication shown by the overwhelming majority of law enforcement professionals,” the petition states.

A representative at the New Hampshire attorney general’s office declined to comment on pending litigation, but referred Courthouse News to an August letter in which the office explained to Eesha Williams, an editor at The Valley Post, that it could not share the list because such an action would invade the officers’ privacy.

Orr & Reno attorney William Chapman has not returned a request for comment.

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