Jim Kenyon: NH Supreme Court gets it right on probe of Canaan officer

Valley News Columnist
Published: 4/24/2022 8:03:39 AM
Modified: 4/24/2022 8:02:14 AM

For anyone who supports the public’s right to see and scrutinize the outcomes — good or bad — of investigations into alleged police wrongdoing, a New Hampshire Supreme Court decision announced Friday was big.

The 5-0 ruling in Provenza v. Town of Canaan makes it clear the state’s highest court — at least in its current makeup — doesn’t take kindly to efforts by government officials and the law enforcement community to keep taxpayers in the dark about investigative reports into alleged police misconduct once they’re completed.

“The public has a substantial interest in information about what its government is up to, as well as in knowing whether a government investigation is comprehensive and accurate,” wrote Chief Justice Gordon MacDonald, a former New Hampshire attorney general who grew up in Hanover and graduated from Dartmouth in 1983.

In the 10-page opinion, justices reminded people that police play a role in society that differs from other public servants. The opinion cited a Wisconsin Supreme Court ruling that stated when an individual “becomes a law enforcement officer, that individual should expect that his or her conduct will be subject to greater scrutiny. That is the nature of the job.”

Admittedly, I have much more than a passing interest in the court’s decision. I’ve been writing about the case since shortly after a Nov. 30, 2017, roadside encounter between then-Canaan police officer Sam Provenza and Crystal Wright, of Canaan, went bad.

According to Wright, Provenza became angry when she didn’t turn over her driver’s license and vehicle registration as fast as he would have liked. When she didn’t comply with his order to exit her SUV, Provenza grabbed her ponytail and forced her to the ground, where she was handcuffed, Wright said.

As the Supreme Court noted, Provenza hadn’t activated the dashboard camera in his cruiser before the encounter with Wright.

A lack of video evidence meant all the public knew for sure was the 5-foot-2, 115-pound Wright had to be taken from the scene in an ambulance. She had suffered a ruptured ACL in her left knee that required two surgeries.

The injury forced Wright to give up her job as a heavy equipment operator at the state Department of Transportation.

In February, Canaan’s insurance carrier agreed to pay a $160,000 settlement to Wright in exchange for her dropping a federal lawsuit alleging Provenza had used excessive force. (Wright now uses her married name, but at the time of the incident she went by Crystal Eastman.)

Before Provenza left Canaan in 2019 to become a trooper with New Hampshire State Police, the town’s Selectboard brought in Municipal Resources Inc., of Meredith, N.H., to look into the now-infamous traffic stop.

After hearing about the investigation, which cost Canaan taxpayers more than $6,000, I asked for the report under the state’s right-to-know law. Canaan officials claimed it was a personnel matter and couldn’t be released. After denying my request for a second time in 2020, the town let Provenza know the Valley News was seeking the report.

Provenza, through his attorney, John Krupski, of Concord, who also does legal work for the New Hampshire State Police troopers’ union, filed a lawsuit against Canaan in Grafton Superior Court to block the report from becoming public information.

The Valley News, with lawyers from the American Civil Liberties Union of New Hampshire arguing on its behalf, joined the suit to stop the report from being kept permanently out of the public domain.

After losing in Superior Court, Provenza appealed to the state Supreme Court, which heard oral arguments in the case last September.

For nearly two years, I’ve watched the case wind through the court system. Here are a few takeaways:

■Public officials across the state — not just in Canaan — and the powerful unions behind police officers are content to watch cases involving public records requests get tied up in court for years. Public officials play with house money, and police unions have deep pockets. They can afford to play a waiting game.

Without the nonprofit ACLU, which has a long history of arguing for greater government transparency, representing the Valley News pro bono, the chances of the report ever becoming public were practically nil.

■Canaan officials have pretended from the beginning that the decision to release the report was out of their hands. But the town “more or less invited (Provenza) to file a lawsuit,” ACLU senior staff attorney Henry Klementowicz told justices during oral arguments.

Friday’s ruling means Canaan and other municipalities can no longer punt on public records requests in hopes that residents and media outlets lack the resources to wage costly court battles.

“The Provenza case makes clear how these types of right-to-know requests should be handled,” Klementowicz told me. “The public has a strong interest in knowing what the government is up to, while conversely police officers have a diminished privacy interest in their on-duty conduct. As a result, we would expect that public bodies faced with these types of requests should grant most or all of them without the need for litigation.”

■The case should serve as a wake-up call to law enforcement agencies and municipal officials throughout the state. The “it’s a personnel matter” excuse for not releasing investigative reports no longer works.

“We conclude that Provenza’s privacy interest here is not weighty,” the Supreme Court wrote. “As the trial court explained, the report does not reveal intimate details of Provenza’s life, but rather information relating to his conduct as a government employee while performing his official duties and interacting with a member of the public.”

Provenza has 10 days to file a motion, asking the Supreme Court to reconsider its decision. If he doesn’t, the report will soon become public.

People, as the court wrote, will finally be able to see what their government was up to. Which is the way it should be.

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

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