On October 5, 2018, the ACLU of New Hampshire and six media entities filed a public records lawsuit in Hillsborough County Superior Court (Southern Division) demanding the production of a list that the N.H. Department of Justice maintains of police officers who have engaged in misconduct that reflects negatively on their credibility or trustworthiness. The list includes over 275 New Hampshire officers. The Department of Justice has declined to produce this list, arguing that doing so would invade the officers’ privacy. The media outlets participating in this lawsuit are InDepthNH.org, the Nashua Telegraph, the Union Leader, the Concord Monitor/Valley News, the Portsmouth Herald/Foster’s Daily Democrat, and the Keene Sentinel.
This list is designed to help prosecutors identify when they have a constitutional duty to produce to a defendant potentially exculpatory evidence in a police officer’s personnel file. However, the list is kept secret and both defense attorneys and the public have no way of knowing whether local prosecutors are making the necessary disclosures to defense attorneys.
As explained in this lawsuit, under both RSA Chapter 91-A and Part I, Article 8 of the New Hampshire Constitution, this list is a public record and should be disclosed to the public. Any privacy interest held by the over 260 officers on the list, who have engaged in misconduct that bears on their credibility or truthfulness, must yield to the central purpose of the public’s right to know: to know of any misconduct by public officials, including police officers, so the public can hold them accountable. As the lawsuit notes: “Keeping information secret, especially when it comes to police behavior and how prosecutors do their jobs, only creates distrust and suspicion that minimizes the hard work and dedication shown by the overwhelming majority of law enforcement professionals.”
On April 23, 2019, the Superior Court issued an order agreeing that this List should be produced. In a decision issued on October 30, 2020, the New Hampshire Supreme Court affirmed much of the Superior Court's order, but declined to immediately produce the list, and instead remanded the case back to the Superior Court for consideration of public interest balancing.
Following the enactment of HB471 allowing for production of the list under certain circumstances, the ACLU-NH and five media entities withdrew their lawsuit on August 25, 2021.