How recent NH Supreme Court rulings have expanded public access to records, government transparency
The state Supreme Court has ruled that internal police disciplinary files are subject to disclosure under New Hampshire’s public records law.
The case concerned a dispute between the ACLU of New Hampshire and the New Hampshire State police over access to the records of a former trooper. This is one of several Supreme Court rulings over the last few years that have expanded access to personnel files under the state’s Right to Know law.
NHPR’s Morning Edition host Rick Ganley spoke with ACLU of NH Legal Director Gilles Bissonnette about what this ruling could mean for government transparency going forward.
So we have this history in New Hampshire of it being really difficult to get ahold of police disciplinary records and even other government personnel records. How has New Hampshire differed from other states when it comes to government transparency?
From 1993 to 2020, New Hampshire differed considerably from other states. We had a whole 27-year period in New Hampshire that I kind of call the dark ages, where members of the public, media outlets, the ACLU, [and] other interested organizations really couldn't get access to any type of disciplinary or misconduct records concerning government officials. And I can tell you that our organization and other organizations like the Union Leader, New England First Amendment Coalition, [Black Lives Matter] and others were profoundly concerned about that.
And there have been a series of lawsuits over the past 4 or 5 years really trying to challenge that decades-old practice of secrecy in New Hampshire. And there's been a lot of success there, fortunately. And I think the recent case that came down really reflects a shifting of all of that where now things are opened up. And I really think that's consistent with New Hampshire values, that we should be more open and accountable. It's embedded in our New Hampshire Constitution. So it's wonderful to see the court really recognize that in recent years and roll back the dark ages of secrecy that we experienced for nearly 30 years.
Now, why was New Hampshire that outlier for almost 30 years?
New Hampshire was an outlier, in part, because of a New Hampshire Supreme Court decision that was issued in 1993, called the Fenniman decision, which basically interpreted the Chapter 91-A Right to Know law as basically deeming disciplinary records, misconduct records categorically confidential, categorically secret. Meaning that even if there was a compelling public interest in disclosure, and even if there was minimal governmental interests in secrecy, the court had interpreted the statute as meaning that that information still couldn't be released even when, on the face of the documents, it was clear that there was serious misconduct and the public should have a right to know. And it was a really troubling decision and really set us back decades and really caused New Hampshire to kind of swerve in a different direction relative to other states which had deemed that type of information not categorically secret.
And so what we have here is, in May of 2020, the court recognizing that error and rolling back and overruling the Fenniman decision, saying not that all misconduct information is categorically public, but just that it can't be categorically secret. Meaning that those records need to be subjected to what's called a public interest balancing test, meaning that on a case by case basis, what a court and what a government body is required to do is evaluate whether or not there's a public interest in disclosure and whether or not there are privacy interests or governmental interests in non-disclosure. And so that's the analysis that now is currently employed in New Hampshire in evaluating whether those records should be released.
Now it's a case by case basis, a judge can get their eyes on it.
So tell us more about this case specifically and why the ACLU of New Hampshire was seeking access to this former state trooper's records, this particular state trooper.
I think what this case really reflects is an effort by the state police to roll back those Supreme Court decisions from May 2020, which I think was really concerning to us. And so what this case was about was an interpretation of a statute that existed outside chapter 91-A. In fact, it's a criminal discovery kind of rule. The case concerned whether or not that statute could apply as an exemption under 91-A that is to say, whether or not that statute could be used to deem categorically secret disciplinary records in police personnel files. And it would have rolled back everything that the Supreme Court had done back in May 2020.
Fortunately, the Supreme Court said, 'No, that statute doesn't apply. We meant what we said back in May of 2020. When we're dealing with police personnel records, those documents can't be categorically secret. That statute doesn't apply. These documents, again, are subjected to a public interest balancing test, like all other government disciplinary records.' I do think at its core, what this recent case confirms is the notion that when an individual becomes a law enforcement officer, that individual should expect that their conduct will be subject to greater scrutiny because that is the nature of the job. And fortunately, this is scrutiny that the court thankfully affirmed.
So with previous rulings and this ruling, are you expecting it now to be easier to get a hold of police misconduct files?
Yes, it should be. But again, it is going to be a case by case analysis. It doesn't mean that these records are categorically open to the public. But I think when you're dealing with documents that concern, in particular, sustained findings of misconduct, I think in most instances those documents can and should be released. And I can tell you that since the Supreme Court decisions in May of 2020, we've been able to obtain access to many of those records upon request. That is why this case that just came down was so important, because it would have undone all of that.
And I want to be very clear [about] the value of transparency here. Since the May 2020 decision, we have learned a lot in New Hampshire about police conduct. We've learned good things with respect to police when they do the right thing, when they terminate an officer that engaged in misconduct, that's a good thing for the public to know. That actually creates and breeds confidence in law enforcement, when people know that police departments are doing the right thing.
But we've also learned some things that are troubling. We've learned about the racist comments of one Manchester police officerthat led to his termination. We've learned about a racist meme that was circulated by police officers that led to the suspension of an officer, and we've even learned about the reversal of a conviction where that defendant was able to establish that documents that he later obtained under the Right to Know law were not produced to him in his criminal case. So we have seen in the past three years the real value of transparency and accountability. We would not have seen that had the Supreme Court not reversed Fenniman, and we would not see it in the future if the Supreme Court issued a different ruling a couple of weeks ago.