Judge: Hanover wrong to deny right-to-know request

Members of the media report on a pro-Palestinian protest in front of Lebanon District Court in Lebanon, N.H., before the start of the first day of a trial for Dartmouth junior Roan Wade and freshman Kevin Engel for misdemeanor criminal trespassing on Monday, Feb. 26, 2024. Wade and Engel were arrested by Hanover police in October 2023 after refusing to leave a tent erected in front of Parkhurst Hall during a protest in support of Palestine. (Valley News / Report For America - Alex Driehaus) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Members of the media report on a pro-Palestinian protest in front of Lebanon District Court in Lebanon, N.H., before the start of the first day of a trial for Dartmouth junior Roan Wade and freshman Kevin Engel for misdemeanor criminal trespassing on Monday, Feb. 26, 2024. Wade and Engel were arrested by Hanover police in October 2023 after refusing to leave a tent erected in front of Parkhurst Hall during a protest in support of Palestine. (Valley News / Report For America - Alex Driehaus) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Alex Driehaus

From left, prosecutor Mariana Pastore, defense attorney Kira Kelley, and her clients Dartmouth junior Roan Wade and freshman Kevin Engel participate in the first day of a trial for misdemeanor criminal trespassing at Lebanon District Court in Lebanon, N.H., on Monday, Feb. 26, 2024.  (Valley News / Report For America - Alex Driehaus) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

From left, prosecutor Mariana Pastore, defense attorney Kira Kelley, and her clients Dartmouth junior Roan Wade and freshman Kevin Engel participate in the first day of a trial for misdemeanor criminal trespassing at Lebanon District Court in Lebanon, N.H., on Monday, Feb. 26, 2024. (Valley News / Report For America - Alex Driehaus) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Alex Driehaus

By JOHN LIPPMAN

Valley News Staff Writer

Published: 06-11-2024 7:31 PM

NORTH HAVERHILL — The town of Hanover and its police department must release the arrest records of two Dartmouth students who were taken into custody on campus last year when staging a protest, a state court judge has ruled.

Grafton County Superior Court Judge Steven Houran, in an eight-page decision released last Friday, swept aside claims by the town of Hanover that releasing the arrest records would violate the students’ right to privacy, interfere with the police investigation or deny the students’ right to a fair trial.

The judge’s decision came in response to a petition for “declaratory judgment” filed by the town of Hanover asking the court to rule whether the town should release the students’ arrest records that it had been withholding and which were requested by the Valley News under the state’s right-to-know law last December.

Along with releasing the records, the town must pay the Valley News’ legal bill, the judge said, noting the lengthy amount of time the newspaper has had to wait for the records.

The two Dartmouth students were arrested Oct. 28 and charged with misdemeanor criminal trespass after they refused to leave a tent they had pitched on the lawn in front of a college administration building as part of a protest urging the college to adopt a set of progressive policy initiatives.

The Valley News sought the arrest records under the state’s right-to-know law in the hope they would shed light on the role Dartmouth College administrators played in calling upon Hanover police to clear the area in front of President Sian Leah Beilock’s offices, where students said they had been protesting peacefully.

Despite repeated requests by the newspaper, Hanover police refused to release the arrest records, contending that the “ongoing prosecution” of the students made the police records “exempt from disclosure.”

Houran — in a decision that cited a total of 10 prior New Hampshire state court cases, two federal court cases, plus court cases in Arkansas, Ohio and Texas — rejected that argument and affirmed the arrest records must be released in accordance with the state’s right-to-know law.

Article continues after...

Yesterday's Most Read Articles

Microbrewery proposes tasting room for downtown Enfield
New Hampshire expects next year's food waste ban to increase diversion to facility market
Lebanon halts paving of Miracle Mile due to asphalt mistake
Hanover Selectboard gives $130,000 severance package to departing town manager
Kenyon: How much do Upper Valley landlords have to raise rents to stay in business?
Over Easy: A May-Very-Late-December romance

Following oral arguments held on April 28 in North Haverhill, Houran took up three issues raised in Hanover’s petition and the Valley News’ response.

In its petition, the town argued that it was exempt from releasing the arrest records — which is a routine matter for most towns in the state — because it risked violating the defendants’ right to privacy, one of the exemptions under the right-to-know law.

But Houran found that argument without merit because “the arrested individuals have already consented to the disclosure of their arrest records” providing their personal identities would be redacted.

Houran also rejected the town’s contention that the arrest records were exempt from release because they would compromise the police’s ongoing investigation, noting that “an arrest record is not an investigatory file” and by definition is the result of an investigation that has already happened.

(Even if the town had shown the investigation was ongoing, Houran wrote, the claim still fell short of the “threshold” test because the town failed to produce any evidence backing its claim, and offered only speculation and generalized hypotheses that fail to even address how the disclosure of information could interfere with any investigation.)

The judge also knocked down the town’s contention that release of arrest records would violate the “sequestration” order issued by the circuit court trial judge and compromise the ability to conduct a fair trial by exposing witnesses to information about the alleged event that might alter their testimony.

That objection, too, fell short as the town never explained what the circuit court trial judge “intended” with the sequestration order or presented any evidence to back up its claim.

And, finally, as for objecting to pay for the Valley News’ attorney fees in the case, the judge wrote the town has only itself to blame.

“It has taken six months for the (Valley News) to gain access to records which it has a right to access … it was (the town’s) actions that led to” the newspaper having to hire lawyers “to secure access to the arrest records.”

“The petitioner should have known that its decision to deny (the Valley News’) request violated the statute,” the judge wrote.

Valley News publisher Dan McClory said the newspaper was satisfied at the outcome.

“We are gratified that the court agreed with our position,” McClory said in a statement. “For six months, our attorneys and we have argued that the town and police department were in violation of the right-to-know law.”

Bill Chapman, of Orr and Reno in Concord and longtime Valley News attorney, noted the trial court began by reiterating the purpose of the right-to-know law, which is ” ‘to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.’ ”

Hanover “advanced three reasons for not producing the arrest records, each of which the court rejected based on well-established law,” Chapman said via email, and the court awarded the newspaper attorney’s fees “because the right-to-know law authorizes a court to do so where a lawsuit is necessary to enforce compliance with the law.”

Hanover has two options moving forward.

It can file a motion within 10 days to Superior Court asking the judge to reconsider his decision, or make an appeal to the state Supreme Court within 30 days.

Hanover Town Manager Alex Torpey said in an email to the Valley News that “the town was disappointed to receive the Court’s decision holding not only that it was required to release the arrest records to the Valley News, but also requiring the town to reimburse the Valley News its attorneys’ fees.”

Torpey said the town “believes the Court misconstrued many of the facts that were presented, and also misapplied the law, and is exploring the avenues available to it to address what it views as errors on the part of the Court. The town continues to be frustrated by the lack of resources available to New Hampshire municipalities which face questions every day regarding how to apply the New Hampshire Supreme Court’s balancing test for the disclosure of certain records.”

“We will continue to do our best to apply the law as we understand it to the facts with which we are presented, but we hope that this case will be just one example of an outcome which will encourage the Legislature to continue to work with municipalities, media, and other interested stakeholders to update the law in a manner which makes it easier and less costly to New Hampshire taxpayers for all parties involved to understand and apply the law properly, all towards the end of transparent and accessible government,” he concluded.

The judge’s decision affirmed the public’s right to know what police are doing, according to a New Hampshire civil rights attorney.

“The Valley News’s court decision is a victory for transparency,” said Gilles Bissonnette, legal director for the New Hampshire chapter of the American Civil Liberties Union.

“But court involvement should not have been needed in this case. Multiple cases have found police reports generally subject to our right-to-know law even while a criminal case is pending,” he said.

He credited the Valley News and its attorneys, in particular Elizabeth Velez, the Orr & Reno attorney who argued the case in court, for doing a “fantastic job fighting for transparency in this case.”

Contact John Lippman at jlippman@vnews.com.