N.H. High Court Rules List Of Police With Credibility Issues Not A Confidential Document | New Hampshire Public Radio

N.H. High Court Rules List Of Police With Credibility Issues Not A Confidential Document

Oct 30, 2020

Credit Dan Tuohy/NHPR

The New Hampshire Supreme Court has ruled that a confidential list containing the names of more than 270 police officers with sustained findings of misconduct on their records is not protected from release under the state’s Right to Know law. 

However, the justices said a lower court judge will need to determine if releasing the list, officially called the Exculpatory Evidence Schedule but commonly known as the Laurie List, could constitute an invasion of the officers’ privacy.

Related story: Inside New Hampshire's secret list of troubled cops

The unanimous decision, issued Friday, is in line with a series of recent rulings by the state’s highest court that require judges to “balance” the privacy rights of a government employee, on one hand, against the public’s right to know about how its government functions, on the other hand, when deciding whether to release personnel records.

In 2018, a group of media companies represented by the ACLU of New Hampshire sued the New Hampshire Attorney General, arguing the Laurie List is a public document under the state’s Right to Know statute. A lower court judge agreed, prompting the state to appeal the matter to the state’s highest court.

The Laurie List contains the names, dates, and often just a single word description of the officers’ conduct that led to their inclusion on the list. Prosecutors are required to notify defendants if an officer whose name is on the list is involved in their case, as they may have credibility issues. The involvement of such an officer could alter how prosecutors pursue criminal cases, including decisions to drop charges or seek a plea deal.

The government contends that the Laurie List was never designed to be a public record, and that the standards for inclusion on the list have varied since it was created in 1995. Arguing before the state Supreme Court in September, Dan Will, New Hampshire’s solicitor general, told the justices that its release wouldn’t provide full transparency or accountability as to the officers’ conduct.

The justices, however, ruled that the list is neither “confidential” or categorically exempted from the state’s Right to Know statute as an “internal personnel practice or a personnel file.”

While that decision was praised by advocates for greater transparency, the ACLU wanted the court to go further and order an immediate release of the list.

“Police officers who are named on the List are there because they have engaged in sustained misconduct concerning credibility or truthfulness,” Gilles Bissonnette, legal director for the ACLU of New Hampshire, said in a statement. “The public has a clear right to know this information.  In this historic moment, there is a demand for immediate transparency concerning the police.  While the Court has temporarily delayed this transparency concerning the List, we will continue to fight for this information.”

The case was filed by several state media outlets, including the Center for Public Interest Journalism, the Nashua Telegraph, Union Leader, Concord Monitor, Seacoast Newspapers, and the Keene Sentinel. Police unions joined Attorney General Gordon MacDonald in opposing its release.

It isn’t clear when a Superior Court judge will hear additional arguments on whether releasing the document potential violates an officer’s privacy rights.

The Attorney General’s office says it is “reviewing the order to determine our next steps.”

The Laurie List takes its name from a 1995 New Hampshire murder case in which the conviction of Carl Laurie was overturned after it came to light that a police officer involved in Laurie’s arrest and prosecution had a long history of misconduct that wasn’t shared with the defense.

Under a landmark 1965 U.S. Supreme Court decision, Brady v. Maryland, prosecutors are required to disclose information which could exonerate a defendant, though in practice many criminal defense attorneys contend this doesn’t always happen.

Listen to NHPR's podcast Document: The List, which is about the Laurie List and the court fight to make it public

Each state handles these requirements in different ways. In New Hampshire, police chiefs have the authority to include an officer’s name on the list when they believe it is warranted. For years, county attorneys maintained control over the list. In 2017, the Attorney General centralized those documents.

Guidelines from the Attorney General’s office recommend adding an officer to the list for infractions including falsifying records, lying, criminal conduct as well as other actions that could lead to credibility issues.

Officers placed on the list can appeal the decision. It isn’t clear how many of the 270 or so names on the list are still in uniform, or even alive.

Friday’s ruling continued a recent string of state Supreme Court decisions that have tilted interpretation of New Hampshire’s Right to Know law in favor of greater public disclosure.

In May, justices overturned a 1993 decision in Union Leader v. Fenniman that categorically shielded public employee personnel records, including disciplinary files, from release. The justices wrote that “only a narrow set of governmental records, namely those pertaining to an agency’s internal rules and practices governing operations and employee relations” falls within the Right to Know exemption.

The ruling was seen as a major victory for advocates of increased government transparency.

This summer, a state commission formed in the wake of the killing of George Floyd by Minneopolis police officers recommended the Laurie List be released to the public, but first should give anyone whose name is on the list 12 months to challenge their inclusion in the Superior or Supreme Court. Gov. Chris Sununu backed the proposal, which would require legislative action to enact.