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N.H. Seeks to Dismiss Laurie List Lawsuit



Valley News Staff Writer
Friday, October 19, 2018

West Lebanon — The New Hampshire Attorney General’s Office is seeking to dismiss a lawsuit filed by the American Civil Liberties Union of New Hampshire and several news organizations, including the Valley News, that want the state to release the list of names of 171 police officers with misconduct or credibility issues.

The state Department of Justice, which maintains the so-called “Laurie List,” now known as the Exculpatory Evidence Schedule, argues that the names themselves are confidential because they are part of a police officer’s personnel file and that releasing them would negatively impact the officers, breach their privacy and could lead to fewer chiefs putting officers on the list, according to its 44-page response filed on Wednesday.

Currently, the full list is available only to prosecutors in New Hampshire, who then are duty-bound to inform defendants in criminal cases if an officer on the list is involved in the case, as their past misconduct or credibility problems could be exculpatory evidence.

“The EES fits within a statutory category of documents that are strictly confidential and not subject to disclosure, except to a particular criminal defendant for exculpatory evidence purposes in that defendant’s particular case,” the state wrote through Solicitor General Daniel Will.

Meanwhile, the ACLU and the media organizations contend that the names on the list are subject to release under the state’s access to public records law, or right-to-know law, something the state disagrees with.

“Any minimal privacy interest held by the 171 officers on the list, who have engaged in conduct that bears on their credibility or truthfulness, must yield to the central purpose of the public’s right to know: to know what police officers are up to so the public can hold them accountable,” the organizations wrote through attorneys William Chapman, Gregory Sullivan and Gilles Bissonnette.

The ACLU of New Hampshire, InDepthNH.org, the Telegraph of Nashua, Union Leader Corp., Seacoast Newspapers Inc., Keene Publishing Corp. and Newspapers of New England’s New Hampshire newspapers, which include the Valley News, the Concord Monitor and the Monadnock Ledger-Transcript, filed the lawsuit in Hillsborough County Superior Court on Oct. 5.

The organizations wrote that the officers on the list have no privacy interest that would be invaded by disclosure and that public interest in disclosure is compelling and should trump the officers’ “nonexistent” privacy rights.

“The public has a right to know whether current and former officers serving them have committed misconduct in the course of their duties,” they wrote in the suit.

Currently available to the public is a list that redacts the names of the officers but includes the department he or she worked for, the date of notification of the incident and the category that the conduct falls under, such as issues with credibility or truthfulness.

In the Upper Valley, there are 10 officers on the list: three from the Claremont department, two from Lebanon, two from Newport and one each from Hanover, Grantham and Springfield, though the officers from Claremont and one of the two from Lebanon are no longer with those departments, according to the police chiefs from the two cities. The conduct that landed the Upper Valley officers on the list ranged from dishonesty and false reports to excessive force, according to the redacted list.

The topic of the Laurie List has come up recently in the Upper Valley after former Claremont officer Ian Kibbe was charged earlier this year with performing an illegal search and falsifying his report. Former Claremont officer Mark Burch allegedly acted in concert with Kibbe, but he is not facing charges at this time. Kibbe has pleaded not guilty.

The Attorney General’s Office, through its lawyers, urged a judge to dismiss the news organizations’ lawsuit, saying that using the right-to-know law as a basis for the release is “both unwarranted and legally incorrect.”

The Attorney General’s Office asks the organizations to take up the matter with the Legislature, which is the body that mandates police personnel files be confidential. The organizations, however, contend that they are not seeking any information contained in those files but rather the Laurie List, which they perceive as being separate and maintained by the Department of Justice.

Among several arguments the state makes for keeping the names private are that release could have undue impact on the officers and invade their privacy.

The state contends that disclosing the officers’ names — absent any additional information about what was alleged to have occurred — will do more harm than good.

“The threat of professional ruin is particularly acute given petitioners’ request to obtain only the limited personnel information contained in the EES, which lacks context and specific detail about the relative severity of the conduct at issue, and which will, therefore, likely mislead the public whose interest the petitioners propose to vindicate,” they wrote.

In addition, the state says, making the list public could lead police chiefs to hesitate when considering to put officers’ names on the list, which could harm defendants in criminal cases.

“This court cannot overlook the possibility that public disclosure of the identities of those on the EES could chill police chiefs’ willingness to designate more borderline personnel issues ... knowing the personal and professional impact that the public reporting would have on the officer,” Will wrote. “Criminal defendants would pay the price through diminished realization of their constitutional rights to exculpatory evidence.”

Earlier this year, Gov. Chris Sununu and Attorney General Gordon MacDonald revised the rules for the Laurie List, saying officers would be placed on the list only once an investigation into their conduct was “sustained.” As a result, officers who are under investigation “must notify” the prosecutor ahead of time if they are under investigation and could be a witness.

The judge has not yet ruled on the state’s motion.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.

Clarification

The three police officers from Claremont and one of the two from Lebanon who are listed on the New Hampshire Department of Justice's Exculpatory Evidence Schedule are no longer with those departments, according to the police chiefs from those cities. An earlier version of this story inadvertently omitted that information.