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Supreme Court: details about ‘covert communications equipment' purchased by Concord PD can remain shielded

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Todd Bookman/NHPR
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In a unanimous opinion released Tuesday, justices on the New Hampshire Supreme Court said that the city of Concord does not have to disclose details of a 2019 purchase of what has only been publicly described as “covert communications equipment” by the police department.

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After the city disclosed the $5,100 purchase, the Concord Monitor and ACLU of New Hampshire both filed Right to Know requests for contracts related to the sale.

The city released a redacted version that obscured the vendor’s name, as well as other information about the surveillance technology, arguing that disclosing additional details could jeopardize ongoing investigations and potentially put officers at risk.

In a rare legal proceeding not attended by lawyers, a superior court judge met in private with Concord’s chief of police to review the document. Following that hearing, the lower court agreed with the city that the document should be redacted, and in a unanimous ruling, justices on the Supreme Court concurred, writing that potential criminals would benefit from further disclosure and potentially “endanger lives.”

“We agree with the trial court that disclosing the name of the vendor, the nature of the equipment, the type of information gathered by the vendor, and how the vendor uses that information, could reasonably be expected to risk circumvention of the law by allowing individuals to learn about the surveillance technology and take evasive measures against it,” wrote Justice James Bassett.

The ACLU argued that the lower court’s decision to have a private hearing with no ability to cross-examine the police chief was flawed, and that the state’s Right to Know statute favors disclosure whenever possible.

“The public has a right to know what the government is up to, and what equipment is paid for by taxpayer dollars,” Henry Klementowicz, staff attorney for the ACLU, said in a statement. “We are disappointed in the Court’s decision today to permit the City to hold a one-sided evidentiary hearing and keep secret the details of equipment that police are using in New Hampshire,”

The Supreme Court, however, did overturn one redaction approved by the lower court that describes the non-disclosure clause in the contract and any rights the vendor may have should details of the technology be released.