Jim Kenyon: Ex-cop-turned-lawmaker thinks police ‘privacy’ outweighs public interest

  • Jim Kenyon. Copyright (c) Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Valley News Columnist
Published: 11/19/2022 10:34:20 PM
Modified: 11/19/2022 10:34:11 PM

What is it about some New Hampshire cops — even after they’ve relinquished their guns and badges — that make them think the state’s right-to-know law shouldn’t apply to them?

In May 2020, the New Hampshire Supreme Court issued two opinions that opened the door for internal records pertaining to alleged police misconduct to become public information.

But apparently the message sent by the state’s highest court — that accountability and transparency in policing actually matter — remains unpopular in some law enforcement circles. At least in our part of the state.

Former Claremont cop-turned-Republican-politician Jonathan Stone immediately comes to mind.

Three months after the state Supreme Court’s landmark decisions, Stone embarked on a legal battle to keep his disciplinary records a secret. That battle is still going.

Stone was a police officer in Claremont for six years, during which time he was a subject of a dozen — give or take a couple — internal affairs reports into alleged misconduct while on duty.

He resigned in June 2007, after reaching a “negotiated agreement” with the city. Around that time, Stone took a job with the Vermont Department of Corrections at the Southern State Correctional Facility in Springfield, Vt. His employment ended last December, state records indicate.

Following the Supreme Court’s decisions in May 2020, freelance reporter Damien Fisher asked Claremont officials for Stone’s disciplinary records under the right-to-know law. The New Hampshire Union Leader later made a similar request.

Stone, a Claremont city councilor for the last half-dozen years, then went to court to block the release of the information. Stone’s attorney, Peter Decato, of Lebanon, argued the city was “legally bound” under the 2007 agreement not to release the information in order to protect Stone’s “privacy interests.”

Shortly thereafter, the American Civil Liberties Union of New Hampshire and the Union Leader entered the fray. “Any privacy interest (by Stone) is clearly outweighed by the public interest,” Union Leader attorney Gregory Sullivan responded.

Last month, Sullivan County Superior Court Judge Martin Honigberg denied Stone’s request for an injunction to prevent the city from “disclosing various documents” related to his six years as a Claremont police officer.

Stone didn’t meet the “heavy burden to shift the balance toward nondisclosure,” Honigberg wrote.

Stone could appeal the judge’s decision to the state Supreme Court. I wanted to ask Stone about his plans, but didn’t hear back from him last week.

Even if Stone opts not to keep the case going, it will likely be a while before his disciplinary records are made public. Lawyers in the case — I counted four at one hearing — must still agree on what information gets redacted.

Sullivan, the Union Leader attorney, stressed that reporters aren’t seeking medical or other personal information such as addresses and phone numbers. The information being requested deals with how a public employee “performed in their duties,” Sullivan said.

Stone isn’t the first law enforcement officer — nor likely the last — to argue that records pertaining to his police work should remain off limits to the public.

In his decision, Honigberg cited the case of former Canaan police officer Sam Provenza, who fought a losing battle all the way to the state Supreme Court to stop a consultant’s 2018 investigative report about him from becoming public information.

Honigberg agreed with Grafton County Superior Court Judge Peter Bornstein, who presided over Provenza’s case, that the public has a “substantial interest” in knowing “what its government is up to.”

As in Provenza’s case, the documents don’t reveal “intimate details of (Stone’s) life,” Honigberg wrote. The documents, however, do contain “information relating to his conduct as a government employee while performing his official duties and interacting with (members) of the public,” the judge added.

Provenza, who is now a New Hampshire state trooper, sued Canaan after I had requested the taxpayer-funded report, which stemmed from a 2017 traffic stop.

The report, conducted by a former state trooper, cleared Provenza of any wrongdoing. The town and its insurance carrier, however, were quick to reach a $160,000 out-of-court settlement with the Canaan woman who accused Provenza of severely injuring her knee during the encounter that saw her leave the scene in an ambulance.

The incident wasn’t captured on the dashboard video camera in Provenza’s cruiser. Provenza said he “simply forgot to push the button to activate it when he left the police department” — a detail that only became public with the release of the report in May.

In the Provenza and Stone cases, state courts have “clearly affirmed that, when an individual becomes a law enforcement officer, they should expect their conduct will be subject to greater scrutiny,” Gilles Bissonnette, the ACLU’s legal director, told me via email. “That is the nature of the job.”

No matter the final outcome of his case, Stone has already scored a partial victory.

A candidate for the New Hampshire House, Stone surely was pleased to see the proceedings drag past the Nov. 8 election to avoid answering to voters about the specifics of the internal affairs investigations.

On Election Day, Stone narrowly secured the one of two House seats in Sullivan County’s District 8, which is made up of Claremont and eight smaller towns. (A recount on Friday increased his margin of victory from three to 14 votes.)

In ruling against Stone last month, Honigberg pointed out that “New Hampshire’s legislature and its courts are in general agreement that (the state’s right-to-know law) weighs heavily in favor of disclosure of public records.”

Something for Stone to keep in mind when he heads to the Statehouse in January.

Jim Kenyon can be reached at jkenyon@vnews.com.

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