Three months after the New Hampshire Supreme Court delivered a transformative ruling over government personnel practices, including police disciplinary records, state lawmakers are considering creating new laws around them.
At a state Senate Judiciary Committee hearing Tuesday, members of the public testified on Senate Bill 39, which would bar public access to police officers’ personnel files.
Senate Bill 39 would directly exempt any information in an officer’s personnel file from becoming public under the New Hampshire right-to-know law, which allows citizens to request and receive government documents. Currently, police personnel files can only be disclosed if there is a compelling public interest, a determination that can only be made by a judge.
The bill comes after an October decision by the New Hampshire Supreme Court that stated employee personnel records are not automatically exempt from the the state’s public records law, RSA 91A.
That decision could affect decades of practice by the state’s Department of Justice, which has argued that state law prevents the release of the names of officers with credible findings of misconduct. The court sent the matter to the superior court; the case is still active.
Sen. Sharon Carson, the committee's chairwoman and a Londonderry Republican, argued that the bill would clarify the Supreme Court’s ruling to allow there to be a balance against information the public deserves and personal details it doesn’t need.
“One of the things I would like to do with this legislation is to figure out if we can have some kind of balancing act in place," she said, between police officer’s accountability and privacy. “The way that the ruling is worded, it really needs some clarity.”
“Just because you become a police officer, doesn't mean you give up your constitutional rights,” Carson added.
But the bill was assailed by police reform advocates and media organizations, who said it would add an unnecessary barrier to police transparency.
Julian Jefferson, an attorney with the public defender’s office and a member of last year’s Commission on Law Enforcement Accountability Community and Transparency (LEACT) said the bill was “in search of a problem that is not there.”
The LEACT commission, which was convened by Gov. Chrs Sununu in the wake of the death of George Floyd by Minneapolis police, had unanimously voted in favor of making public the state’s “Laurie list," which details police officers with sustained complaints against them. Sununu had endorsed the commission's final recommendations.
"This would be at odds with that recommendation,” Jefferson said. “Remember that we as a community pay police officers. We give them the guns and the badges and give them all this responsibility. And the public… certainly has a right to know if an officer in their community has sustained findings of misconduct.”
Passing the bill would take the state backward, he argued.
“It's going to send a message to the community that secrecy rules the day,” Jefferson said.
Representatives for the New Hampshire Press Association, the Union Leader Corporation and InDepth New Hampshire also spoke against the bill.
The New Hampshire Municipal Association, meanwhile, took a more nuanced approach.
“I think it’s hard to take a position that records made relating to a determination of misconduct should be exempt,” said Cordell Johnston, government affairs counsel for the Municipal Association. But he supported the idea of codifying the changes ordered by the Supreme Court into statute, setting out clear exemptions to disclosure, and expanding exemptions to municipal employees.
“It would be good for the Legislature to establish the policy here rather than have it laid out on a case by case basis,” Johnson said.
The bill will be voted on by the committee and then sent to the full Senate for a vote.
Open hearings
The committee also took up a bill intended to increase police transparency.
Senate Bill 41 would make police disciplinary hearings open to the public, while allowing portions of those hearings to be held in non-public if confidential material was discussed.
Presently, those proceedings take place behind closed doors at the Police Standards and Trainings Council. It's a practice, said Sen. Harold French, a Franklin Republican sponsoring the bill, that needs to end.
“Giving police special treatment by preventing transparency sends a bad message, and undermines trust,” he said.
French said he thought the bill would be "well received” by all parties.
“It's going to bring light to an area that in the past has been very dark," he said.
The bill had the support of civil rights groups such as the ACLU of New Hampshire.
Joseph Lascaze, the smart justice organizer of the ACLU, said that the privacy of police disciplinary hearings in New Hampshire stands “in stark contrast” to the more open process used for judges, lawyers and state nurses and medical professionals.
Opening up the disciplinary hearings would do two things, Lascaze argued: allow for closure for those who have experienced misconduct at the hands of law enforcement, and restore faith in law enforcement among the public.
“To put it simply, you can’t have accountability without transparency,” he said.
Gregory Sullivan, a lawyer for the Union Leader corporation, said that he supported the bill but didn't think it was necessary to begin with. The right-to-know law should make those proceedings public anyway, he argued. The Union Leader is presently suing the Police Standards and Training Council to make those hearings open.
Richard Gagliuso, a lawyer with Bernstein Shur representing the New Hampshire Press Association, echoed that argument.
‘Can I search your car?’
Finally, the committee considered a bill that would require law enforcement officers to inform people of their rights to refuse a search of their vehicle if they are pulled over. Under New Hampshire law, police officers must ask permission to search a vehicle if they don’t have a warrant, but many motorists don’t always realize that fact.
Senate Bill 40 would alter that dynamic.
“The goal of the bill is just to ensure that people are informed of their rights with law enforcement that ask to search their vehicles without a warrant,” said French, who sponsored SB 40 as well.
“This codifies what is already the law,” French added. “The only thing this changes is they must be informed of this prior to the search being conducted by the inquiring officer.”
The bill would only apply to situations with no probable cause – the situations in which police officers need clear permission. In situations where probable cause was evident, for instance if an officer saw something suspicious like an open beer can, the driver could be detained while a warrant was obtained.
Lascaze, who is Black, said that the change was important for people of color in New Hampshire.
“I have been pulled over several times by law enforcement,” Lascaze said. “It can be terrifying not knowing how that situation is going to end,” he said. “It can be very stressful.”
By making drivers’ rights explicit – and specifying that the vehicle cannot be searched without probable cause – that uncertainty can be mitigated, Lascaze said.
“You often feel like you have to comply with every request that is given to you,” even without probable cause, he said. “This bill would remove that intimidation.”
University of New Hampshire law professor Buzz Scherr, a constitutional law expert, said the lack of informed consent means that police officers can pull over people for reasons unrelated to a search, like a broken taillight, but can then request to have a search later.
“It’s really a common-sense bill that basically informs people of a right that they have under the constitution but a huge majority don't know about," he said. "When somebody is stopped for a reason other than to search their car and at some point in the process the officer takes a shot.”
Joe Ebert, of the New Hampshire State Police, said the agency was not taking a position but it was open to supporting it. He expressed concern that the bill would prevent police officers from detaining the people they pulled over while they waited for a warrant.
Franklin Police Chief David Goldstein, representing the New Hampshire Association of Chiefs of Police, also said the organization did not necessarily oppose the bill. But he suggested that the language be changed to prevent people from being detained “solely” because they did not consent to search.
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