CONCORD — Lawyers for the Union Leader Corp. and the ACLU asked the New Hampshire Supreme Court this week to upend decades-old precedent that protects the names of problem police officers from public disclosure.
In written briefs submitted on Tuesday, the two organizations said a 1993 ruling that sheltered the names of problem Dover police officers misinterpreted the New Hampshire Right to Know Law and is in conflict with the New Hampshire constitution, which requires that government be “open, accessible, accountable and responsive.”
“This Court should overturn the bad precedent set out in Fenniman that deviates from this Court’s longstanding and settled practice of resolving questions ‘with a view to providing the utmost information,’” reads a brief written by Gregory Sullivan, who represents the Union Leader and is an expert in open records and media law. Fenniman refers to the 1993 case out of Dover, in which the Supreme Court ruled that “internal personnel practices” are exempt from public disclosure.
The briefs were filed in an appeal of a Rockingham County Superior Court decision regarding last year’s Kroll audit of the Salem Police Department. The Union Leader and ACLU have sought an unredacted copy of the Kroll report. A redacted version found a host of problems at the town’s police department, including mismanaged internal affairs investigations, ignored citizen complaints and improper retention of internal investigations records. It also found that police brass worked lucrative outside details while on the clock.
In April, a judge lifted some of the redactions but said the Fenniman ruling prevented him from disclosing further information.
Salem Police, the union that represents Salem Police officers and the New Hampshire Municipal Association have filed briefs urging the Supreme Court to keep the Fenniman-mandated redactions intact.
“This case … is about the release of names of employees who have been the subjects of the disciplinary process, whether sustained, unsustained or under investigation. (The Union Leader and ACLU) would elevate a mere accusation to a compelling public interest,” wrote Barton L. Mayer for the town of Salem.
The lawyer for the New England Police Benevolent Association Local 22, Peter J. Perroni, urged the Supreme Court to let the Fenniman precedent stand and let the Legislature address the issue by changing the law.
In late November, civilian town officials in Salem released the Kroll Report. The longstanding police chief, Paul Donovan, was accused of working paid details while on the clock and eventually resigned. New Hampshire Attorney General Gordon MacDonald has launched an investigation into both Donovan and retired Deputy Police Chief Robert Morin.
Morin, meanwhile, has sued the town for defamation.
In its appeal brief, the ACLU urged the Supreme Court to implement a balancing test to weigh privacy concerns against the benefits of public disclosure. That is the practice when officials consider the release of confidential, commercial or financial information under the Right to Know Law, the organization said.
The ACLU also said a police officer accused of misconduct does not have a privacy right if the misconduct was done as part of his official capacity.
“The accountability value of attaching the names of specific police officers — and other government officials — to official behavior is obvious. For example, if the public does not know the specific identities of an officer who engaged in misconduct, then how can the public evaluate whether a government entity has taken appropriate action — whether it be discipline or termination — against that officer? While the Town effectively says “trust us,” (the Right to Know Law) favors transparency,” wrote Gilles Bissonnette, the legal director for the ACLU-New Hampshire.
Sullivan said the Supreme Court has expressed its own uneasiness with the Fenniman ruling, writing critically of it in a 2016 case.
“We took that as an invitation to come back and revisit Fenniman,” Sullivan said.
The Supreme Court has scheduled oral arguments for Nov. 20. That same session the justices will hear two other cases that challenge Fenniman: a case brought by Seacoast Media Group to seek records about misconduct among Portsmouth police, and a case brought by a Keene State College professor against the city of Keene when the city rejected Right to Know requests filed by her students.