NH Supreme Court rules misconduct files of fired trooper cannot be kept secret
Nov. 29—Police records of misconduct by a disgraced state trooper must be released under the state's Right-to-Know law, according to a decision issued Wednesday by the New Hampshire Supreme Court.
The Union Leader, Black Lives Matter-Manchester, the New England NAACP and the New England First Amendment Coalition all submitted briefs urging the state Supreme Court to order that internal files on former trooper Haden Wilber be disclosed under the New Hampshire Right-to-Know Law.
State police officials fired Wilber in August 2021 for his role in a traffic stop that led to the jailing of a Maine woman for 13 days. She underwent intrusive cavity searches on the trooper's hunch that she was hiding drugs in her body.
The state settled a lawsuit with the woman for $212,000, and last year an appeals board denied Wilber's reinstatement.
The ACLU's New Hampshire chapter went to court to force New Hampshire State Police to release its entire file on Wilber, in the wake of concerns about the pretextual stops and aggressive tactics of the State Police Mobile Enforcement Team related to drug interdiction.
A Superior Court judge ruled in favor of the ACLU, but Attorney General John Formella argued that restricting the use of police files in criminal cases is allowed under criminal discovery statute (RSA 105:13-b).
That law outlines the circumstances when a criminal defendant may gain access to evidence that could help him at trial, specifically any evidence that would impact the credibility of police witnesses and investigators. The law requires such evidence to be turned over but specifically states that some portions of the file should remain confidential.
If the Supreme Court does not honor that law, "absurd results" would follow, wrote Jessica A. King, the assistant attorney general handling the appeal. "Criminal defendants will lack access to records in a police personnel file in a criminal case that the public may obtain pursuant to a simple Right to Know request," she wrote.
The ACLU argued that this separate criminal statute did not prevent disclosure under the Right-to-Know Law. The Supreme Court agreed.
"Today's decision is a victory for government transparency," said Gilles Bissonnette, legal director of the ACLU of New Hampshire, in a statement. "When an individual becomes a law enforcement officer, that individual should expect that their conduct will be subject to greater scrutiny because that is the nature of the job, scrutiny that the court once again affirmed today.
"In this case, both the state police — New Hampshire's largest police force — and the Attorney General's Office took the astounding position that disciplinary records in a terminated state trooper's personnel file should never see the light of day and should never be seen by the taxpayers that fund their operations," Bissonnette said.
Court: Laws don't conflict
First Amendment expert and lawyer Gregory V. Sullivan, who represents the Union Leader and is president of the New England First Amendment Coalition, said the Supreme Court's decision removes an "attempted roadblock that was set up by the state police" to deny the public "its right to know what the government is up to."
"This decision reflects the emphasis that the New Hampshire courts have placed in recent years on the importance of transparency regarding governmental misconduct," Sullivan said. "As Superior Court Justice Andrew Schulman wrote, in the case of Union Leader Corporation v. the Town of Salem, 'the audit report proves that bad things happen in the dark when the ultimate watchdogs of accountability — i.e. the voters and taxpayers — are viewed as alien rather than integral to the process of policing the police.'"
The court wrote in the decision issued Wednesday that "the Right-to-Know Law and RSA 105:13-b serve different purposes."
RSA 105:13-b, the court wrote, ensures a defendant's state and federal constitutional rights to have evidence in their favor disclosed. and and provides a procedure for obtaining other evidence relevant to the defendant's criminal case.
The purpose of the Right-to-Know Law, on the other hand, "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."
"We see no absurdity in the coexistence of different statutory frameworks for seeking information in a police personnel file for different purposes," the court wrote. "Determining whether information will be disclosed will entail a different inquiry under each framework and the material disclosed under each may not be equivalent."
The court wrote that if the Legislature disagrees with that interpretation, it can clarify what records pertaining to law enforcement officers should be exempt from disclosure.
