Supreme Court At-a-Glance Contributor Jonathan P. Killeen, Shareholder at Boyle | Shaughnessy Law PC in Manchester, NH

No. 2021-0146

February 4, 2022

Reversed and remanded 

 

  • Whether superior court erred by denying the State’s request for a protective order relating to police officer personnel files in connection with three separate criminal cases.

 

The State determined that it was required to produce police personnel files in connection with three separate criminal cases because the information contained therein was potentially exculpatory.  Before disclosing the files, the State sought a protective order in each case prohibiting the defendants from sharing or disseminating the files with anyone other than each defendant and their respective attorneys. The State argued that the police officer personnel files were confidential once they were disclosed to the defendants pursuant to RSA 105:13-b, entitled “Confidentiality of Personnel Files,” which, the State argued, makes police personnel files broadly confidential with limited exceptions.  Conversely, the defendants argued that only those portions of a personnel file that are not produced to a defendant are to remain confidential.  The trial court denied the State’s request for a protective order and reasoned that nothing in RSA 105:13-b requires confidentiality of exculpatory evidence.

The Supreme Court granted the State’s request for certiorari in order to review the superior court’s ruling on the protective orders. The Court concluded that the trial court erred in its statutory interpretation of RSA 105:13-b and that the State showed good cause, as a matter of law, for the issuance of a protective order.  RSA 105:13-b states, in part, that “[o]nly those portions of the file which the judge determines to be relevant in the case shall be released to be used as evidence in accordance with all applicable rules regarding evidence in criminal cases. The remainder of the file shall be treated as confidential . . . .”  The Court reasoned that when the statute’s language is considered within the context of the statue as a whole, the statute sets forth a procedure for turning over exculpatory evidence to a criminal defendant for any testifying police officer, while maintaining the confidentiality of those files for all other purposes. In reaching this conclusion, the Court highlighted that the title of RSA 105:13-b, “Confidentiality of Personnel Files,” demonstrated the legislature’s intent that police personnel files start with the presumption of confidentiality.  From there, the Court reasoned that the statute provided limited disclosures of information to specific persons for specific purposes. Specifically, each scenario for the disclosure of police personnel records set forth in RSA 105:13-b is tied to a particular case, and for the explicit purpose of being used as evidence, such that additional dissemination or other uses of the records is not permitted. As a result, the Court reasoned that because material disclosed pursuant to RSA 105:13-b must be done in such a certain way, if the Court interpreted the statute to allow for disclosure or use of personnel file material beyond a specific defendant in a particular criminal case it would contravene the statutory process by which such information is released.

The Court declined to address the defendants’ constitutional arguments premised on prior restraint in violation of the First Amendment because they were not presented to the trial court. Nevertheless, the Court provided guidance to the trial court on how to issue a protective order without offending the First Amendment.

 

John M. Formella, attorney general (Elizabeth Velez, attorney, on the brief, and Samuel R.V. Garland, assistant attorney general, orally), for the State; American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint brief, and Henrey R. Klementowicz orally); R. Peter Decato, of Lebanon, on the joint brief; Albert E. Scherr, of Concord, on the joint brief; and Wadleigh, Starr & Peters of Manchester (Robin D. Melone on the joint brief), for defendant Jeffrey Hallock-Saucier; Law Office of Carl D. Olson, of Londonderry (Carl D. Olson, on the joint brief), for defendant Nicholas Fuchs; Alexander J. Vitale, New Hampshire public defender, of Concord, on the joint brief, for defendant Jacob Johnson.