Hanover asks judge to reconsider ruling on arrest reports

By JOHN LIPPMAN

Valley News Staff Writer

Published: 06-20-2024 2:26 AM

HANOVER — The town of Hanover is asking a New Hampshire Superior Court judge to reconsider his decision last week in which he ordered the town’s police department to release its reports pertaining to the arrests of two Dartmouth College student protesters in October.

“The court’s order makes clear that it has misapprehended the nature of the challenged records,” Hanover’s attorney, Matthew Burrows, of Gallagher, Callahan & Gartrell in Concord, wrote in an 11-page motion for reconsideration.

In declining to review the records in question during an April hearing, Superior Court Judge Steven Houran “misapprehended critical points of fact and law,” Burrows wrote.

The town’s motion was filed Monday in response to Houran’s ruling that Hanover police must make publicly available arrest reports sought by the Valley News under the state’s right-to-know law.

The two Dartmouth students who were protesting the war in Gaza and other issues were arrested on Oct. 28 and charged with criminal trespassing after refusing to leave a tent they had been sitting in for about six hours on the lawn outside President Sian Leah Beilock’s office.

In December, the Valley News requested the reports that Hanover police had written about the events that led to the arrests.

Police departments in other New Hampshire communities, including Lebanon and Canaan, routinely release arrest reports when requested by the media.

But Hanover officials continue to keep the reports out of public view.

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Earlier this year, Hanover sought a declaratory judgment from the court, seeking guidance on whether it was required under the right-to-know law to make the arrest reports available to the public.

Hanover officials maintain the law is unclear and hired Burrows to seek a court ruling to clear up the matter. Burrows has also advised Lebanon police in matters pertaining to public records law.

Hanover is also asking the judge to reconsider his decision requiring the town to pick up the legal fees the newspaper spent in hiring attorneys to fight the town’s position.

In addition, Hanover filed a motion requesting permission to submit the students’ arrest records “under seal for in- camera review” — meaning not as a public court document — in a renewed attempt to persuade the judge to read them.

“The court’s review of the challenged records will ultimately aid in the court’s assessment of its decision and the arguments raised in (the town’s) motion for reconsideration,” Burrows argued.

The motion noted the Valley News does not assent to submit the records under seal for in-camera review.

The Superior Court’s decision on June 7 ordering Hanover to release the students’ arrest records as well as pay legal fees was considered a victory for the newspaper in particular and the right of the media for access to public records in general.

But in its motion for reconsideration, Hanover contends the judge erred in interpreting and applying state law. An “arrest record” can be exempt from public disclosure, if it contains details about an active police investigation of an alleged crime, Burrows contended.

Valley News attorneys, Bill Chapman and Elizabeth Velez, of Orr and Reno in Concord, argued the Hanover police investigation has long been closed. The case is now in Lebanon District Court. Both students have pleaded not guilty.

Hanover’s motion to reconsider further took issue with the court’s declaratory judgment that stated the town “knew or should have known” that it was violating the right-to-know law.

The state Supreme Court has not examined the relevant exemption and it can’t be assumed that justices would adopt the same standard as “the federal test,” Burrows wrote.

“The court offers no explanation for how or why Hanover should have known or did in fact know that its conduct would violate (the right-to-know law) under such circumstances, particularly where a criminal trial involving the two students was pending and the (state) Supreme Court has never articulated the scope” of one of the exemptions, the town’s motion argues.

In the end, Hanover contends the judge’s ruling favoring release of the arrest reports and requiring the town to foot the newspaper’s legal bill will only lead municipalities in the state to believe they cannot rely upon the courts to clarify what the right-to-know law entitles and what it does not.

“Hanover — placed in the unenviable position of needing to divine its obligations under (the right-to-know law) and balance competing, important interests stemming from an imminent criminal matter sought aid from this court. The court’s order, however, only serves as a signal to Hanover, and others, that assistance in navigating the unsettled contours (of the right-to-know law) is not forthcoming and may deter such proactive efforts through an award of attorney’s fees,” the motion concluded.

Under New Hampshire Superior Court rules, a counterclaim party is not allowed to object to a motion for reconsideration unless required to do so by the court. Counterclaim parties are permitted to respond to motions to submit, however.

New Hampshire courts were closed on Wednesday in observance of the Juneteenth holiday, but The Valley News is expected to file a response to the motion to submit today, Chapman said.

Contact John Lippman at jlippman@vnews.com.