October 30, 2020
Affirmed in part; vacated and remanded
- Whether the trial court correctly found that the Exculpatory Evidence Schedule (f.k.a. the “Laurie List”) is not confidential or otherwise exempted from disclosure.
The Department of Justice appealed an order of the Superior Court denying its motion to dismiss the plaintiffs petition seeking a declaration that the Exculpatory Evidence Schedule (“EES”), excluding the names of police officers with pending requests to be removed from the list, must be made public pursuant to the Right-to-Know Law, RSA chapter 91-A, and Part I, Article 8 of the New Hampshire Constitution.
The Court upheld the trial court’s finding that the EES is not confidential under RSA 105:13-b, and is not exempted from disclosure under RSA 91-A:5, IV’s “internal personnel practices” or “personnel file” exemptions. The Court held that RSA 105:13-b’s disclosure exemption applies only to information actually maintained in a police officer’s personnel file, not to records maintained elsewhere. Applying Seacoast Newspapers, Inc. v. City of Portsmouth, (decided May 29, 2020) and Union Leader Corp. v. Town of Salem, (decided May 29, 2020), the Court also determined that the EES is not exempted from disclosure as an “internal personnel practice” or “personnel file” under RSA 91-A:5, IV. The Court remanded the case to the Superior Court to determine in the first instance whether the EES may be exempted from disclosure as an “other file whose disclosure would constitute invasion of privacy” pursuant to RSA 91-A:5, IV.
American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the brief, and Mr. Bissonnette orally), and Moir & Rabinowitz, PLLC, of Concord (James H. Moir on the brief), for plaintiffs New Hampshire Center for Public Interest Journalism, The Telegraph of Nashua, Newspapers of New England, Inc., Seacoast Newspapers, Inc., Keene Publishing Corporation, and American Civil Liberties Union of New Hampshire. Malloy & Sullivan, Lawyers Professional Corporation, of Hingham, Massachusetts (Gregory V. Sullivan on the brief and orally), and Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief), for plaintiff Union Leader Corporation. Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general, on the brief and orally), for the New Hampshire Department of Justice.