A judge gave a lawyer for the state a hard time Thursday as she tried to argue that the disciplinary records of a state trooper fired for misconduct should remain confidential.
If you “look at the trend in the New Hampshire Supreme Court’s cases, your reading seems to be a departure from that more expansive view of public access to public records,” Merrimack County Superior Judge John C. Kissinger Jr. told Assistant Attorney General Jessica King partway through the hearing.
The hearing came in a right-to-know lawsuit filed by the ACLU of New Hampshire, which seeks the disciplinary records of former Trooper Haden Wilber. N.H. State Police have so far declined to release the records, citing personnel privacy grounds.
The case could have larger implications for police transparency. The state has argued that police officers’ personnel records are categorically exempt from disclosure under New Hampshire’s public-records laws. This would be a departure from the general rule for public employees, established by the N.H. Supreme Court less than two years ago, that such records can be released if their public importance outweighs any privacy considerations.
State law “cloaks police personnel files with the maximum confidentiality that the United States and New Hampshire Constitutions allow,” King wrote in a response to the lawsuit, citing a statute governing the release of information in criminal cases.
The ACLU-NH contends that that position misreads the law and, if adopted, would represent a step backward for police accountability.
“If this is not a case where disclosure is required, then I don’t know what case is,” Gilles Bissonnette, the organization’s legal director, said at Thursday’s hearing. “Yet in the face of all this misconduct … the State Police here take a different position, arguing that secrecy should prevail.”
The case grows out of a 2017 vehicle stop on Interstate 95 in Portsmouth. After finding a small amount of heroin residue, Wilber also claimed the driver, Robyn White of Avon, Maine, had drugs hidden inside her body and charged her with bringing contraband into the jail. No drugs were recovered during the 13 days she spent in jail or the invasive vaginal and rectal search she was required to undergo before her release. The charges were ultimately dropped.
Last year, the state paid White $212,500 to settle a lawsuit alleging Wilber violated her civil rights by illegally searching her purse and falsely accusing her of having drugs inside her body.
A State Police internal investigation found Wilber had also illegally searched White’s phone without a warrant and made false statements to investigators. Wilber has been added to the Exculpatory Evidence Schedule, a list of current and former officers with potential credibility issues, also known as the “Laurie List.”
In firing Wilber, the head of State Police, Col. Nathan A. Noyes, said the inquiry “revealed disturbing facts regarding your investigatory habits and overall integrity as a law enforcement officer.”
Wilber disputes the findings and is appealing his termination.
At Thursday morning’s hearing in Concord, Bissonnette said the public deserves to know more about Wilber’s conduct and how thoroughly State Police investigated it.
“We have misconduct,” he said. “It’s not alleged. It’s not hypothetical. It’s real.”
Bissonnette said the records could also reveal more about the practices of the unit Wilber was assigned to, the Mobile Enforcement Team, which the ACLU has criticized for using traffic stops as pretexts for drug investigations.
King argued the legislature has singled out police personnel files for heightened confidentiality through RSA 105:13-b, the law concerning disclosures in criminal cases.
One reason for that is to make sure police officers and other witnesses feel comfortable reporting misconduct and speaking to internal-affairs investigators, she said.“With police officers especially, we want to make sure that there are thorough investigations, that police personnel are coming forward and that they are participating truthfully and honestly in the investigation.”
Bissonnette said the statute is limited to criminal cases and doesn’t prohibit disclosures under New Hampshire’s open-records law. Kissinger let Bissonnette proceed with his arguments largely uninterrupted, but cut King off multiple times — starting less than a minute into her argument — to press her on various points, including the assertion that 105:13-b prevents disclosure under the state’s Right to Know Law.
“You’re basically saying that unless it’s a civil lawsuit or a criminal proceeding, it’s — it is off-limits,” Kissinger said. “There is no public access to the information.”
King confirmed that is the state’s position.
King also argued that the records should be withheld even if the usual balancing test is applied because they concern one individual employee and would shed little light on State Police’s activities more broadly. The privacy interests of Wilber and anyone else who spoke to investigators during the investigation should take precedence, she argued.
“It is one trooper in one instance that we’re talking about,” she said. “And when you say ‘egregious conduct,’ when you look at the [termination] letter, there were many intervening steps that led to all that happened,” adding that “it is not the type of egregious conduct” that has tipped the scale in favor of the public interest in other cases.
“I don’t know that it’s helpful to say that there’s other, even more egregious, behaviors,” Kissinger noted.
He did not immediately issue a ruling, saying he would take the arguments under advisement.
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