ACLU-NH says the case will rest on the public’s interest in disclosure
October 31, 2020
By Scott Merrill
The state’s Exculpatory Evidence Schedule, better known as the “Laurie list,” may have moved one step closer to being made fully public with the NH Supreme Court’s opinion Friday. But its ultimate fate will now rest, once again, with the lower courts.
The Court’s opinion comes after oral arguments in Sept. on a public records case for the release of the list originally filed in 2018 by the New Hampshire Center for Public Interest Journalism, Telegraph of Nashua, Union Leader Corporation, Newspapers of New England, Inc., through its New Hampshire properties, Seacoast Newspapers, Inc., Keene Publishing Corporation, and The American Civil Liberties Union of New Hampshire.
In 2019 Superior Court Judge Charles Temple ruled that the full unredacted list is a public record. Attorney General Gordon MacDonald appealed the ruling to the state Supreme Court, arguing that Temple erred.
The Court’s opinion on Friday states that “We uphold the trial court’s determinations that the EES is neither ‘confidential’ under RSA 105:13-b nor exempt from disclosure under the Right-to-Know Law as an ‘internal personnel practice’ or a ‘personnel file.’
However, on the issue of whether disclosure of the list may constitute an invasion of privacy in some situations, the Court vacated the trial court’s decision and remanded it to determine whether “the ESS constitutes an ‘other file’ whose disclosure would constitute invasion of privacy.”
This remaining exemption is what will be sent back to Superior Court according to ACLU-NH legal director Gilles Bissonnette, who is representing the majority of plaintiffs in the case. The focus there, he explained, will be on public interest balancing.
“It’s going to be about the public’s interest in disclosure balanced against any governmental or privacy interests in non-disclosure.” Bissonnette said, adding that supplemental briefings will likely be filed with the Superior court within several months on this issue. “The short of this is that we won on all the legal issues that the superior court ruled on and the case has been sent back regarding a remaining issue the court didn’t address.”
Asked what might constitute an “other file” in terms of invasion of privacy, Bissonnette said that it could be anything that doesn’t constitute an personnel file. An example might include something involving a confidential informant in a document or a victim’s telephone number or address in a document that’s not personnel related where there would be a privacy interest.
Overall, Bissonnette expressed relief with the court’s opinion on the Laurie List being exempt from disclosure as a personnel document. But he also expressed disappointment.
“We and the communities we represent are disappointed that the Court did not order the immediate release of the List, and instead sent the case back to the lower court for further proceedings to address the public interest in disclosing the List,” Bisonette said. “Police officers who are named on the List are there because they have engaged in sustained misconduct concerning credibility or truthfulness. The public has a clear right to know this information. In this historic moment, there is a demand for immediate transparency concerning the police. While the Court has temporarily delayed this transparency concerning the List, we will continue to fight for this information.”
In a Tweet on Friday morning Governor Sununu expressed support for the disclosure of the Laurie List, saying: “I support the LEACT Commission’s recommendation that the Laurie List be made public after steps are taken to ensure that those on the list receive due process. We will work to achieve this goal through the legislature.”
The Attorney General’s office did not have a statement prepared at the time this article was written.