A pair of recent New Hampshire Supreme Court decisions could lead the way toward more transparency surrounding misconduct by public employees, including police officers.
The court ruled that internal personnel practices aren’t automatically exempt from disclosure under the state’s right-to-know law.
The ACLU of New Hampshire was co-counsel for both cases. NHPR’s Morning Edition Host Rick Ganley spoke with the organization’s legal director, Gilles Bissonnette, about how this could provide better access to public information.
Rick Ganley: The state Supreme Court ultimately agreed with you and the newspapers which brought these lawsuits, its ruling last week overturned an almost 30 year old law that automatically allowed internal personnel practices to be withheld from right to no request. But it didn't say that, you know, these documents must now be made public. Can you explain how that works?
Gilles Bissonnette: Yes, sure. Just to kind of start with the 1993 Supreme Court decision that was overturned last week. In that 1993 decision, the court had broadly interpreted a provision of our public records law called the internal personnel practices exemption, which basically allowed state and municipal agencies to withhold a lot of very important documents from public view. But last week, what the [New Hampshire] Supreme Court said is that that old 1993 decision was wrong. And the court, in fact, went so far as to say that that 1993 decision was contradictory to our state's principles of open government and reduce the goals of our public records law to lip service.
And in reaching that conclusion, you know, the court basically said that there needs to be a public interest balancing analysis with respect to public employee information. So it can't just be categorically barred from disclosure. There needs to be an assessment as to whether there's a public interest in disclosure and whether there are privacy and governmental interests in non-disclosure that would potentially trump those public interests.
Rick Ganley: Both cases here involve public records, requests for documents that had been partially or fully withheld by police departments -- an arbitration agreement between a former Portsmouth police officer who had an inappropriate relationship with an elderly woman and an audit of the Salem P.D. Why do you think the public should have access to these records?
Gilles Bissonnette: Well, in both cases, we were dealing with documents that are germane to the employment and official acts of public employees. With respect to the Portsmouth arbitrator case, I mean, that is a case that had garnered significant public attention where Officer Goodwin there was fired from the Portsmouth Police Department in 2015 for violations related to his accepting a $2 million plus inheritance from an elderly woman with dementia. The inheritance was ultimately overturned that same year by a judge who found that that police officer had influenced that elderly woman. And the arbitration decision resulted from that termination. And I think there obviously the public interest in disclosure was significant. But under the 1993 court decision that has now been overturned, there was no public interest analysis that was employed. And thankfully, now in that case, there needs to be a public interest assessment.
And in the Salem Police Department case, I mean, there we were dealing with a report that concerns the official acts of police department employees. Of course, there's a public interest to that type of information. And in fact, the report in that case documented issues with the department's culture and its failure to adequately investigate citizen complaints. In the redacted version of the report, a piece that was released, the auditor said, we see a system designed to intimidate members of the public and make them fearful of the consequence of filing a complaint about concerning misconduct. That information really goes to the core of something that's in the public interest, something that the public should know about, especially when you're dealing with an audit report that the taxpayers paid for at a cost of around $70,000.
Rick Ganley: So does this mean going forward, that there's going to be more transparency within law enforcement in New Hampshire?
Gilles Bissonnette: Absolutely. There is going to be more transparency. And I think recent events really highlight why this transparency is so essential. In the last 27 years in New Hampshire because of this exemption, government agencies, police departments, et cetera, have really been able to prevent the public from getting access to information concerning employee discipline and misconduct, even where that discipline and misconduct would be in the public interest to disclose, and even where the privacy interests were minimal because we were dealing with or you're dealing with official acts of those employees. And we know now from recent events that that information in many cases should be public. It should be made available to the constituents that that pay the bills for these police departments and government agencies.
You know, as protests are erupting throughout the country about police accountability, we know that for some officers, there's information concerning abuses in their personnel files that to date haven't been available to the public, and at least in New Hampshire there could be greater access now to that information. Because now a citizen has the ability to ask a judge, where appropriate, to have this information released, where there's a good reason. It's not going to happen necessarily in all cases, but where there's a good reason, meaning that there's a public interest in disclosure and where that public interest trumps any privacy interest that may exist.
