A list of New Hampshire police officers with potential credibility issues is subject to public disclosure, a judge ruled Tuesday.
The order comes in a lawsuit filed by the American Civil Liberties Union of New Hampshire and several news organizations, including The Sentinel, seeking access to the unredacted version of the Exculpatory Evidence Schedule.
The document, also known as the Laurie List, lists current and former law enforcement officers found to have engaged in conduct that could undermine their credibility as witnesses. In response to public-records requests, the N.H. Attorney General’s Office has shared a version of the list with officers’ names and certain other details redacted.
The state had advanced several arguments for shielding the document from disclosure, including personnel privacy. But Judge Charles S. Temple of Hillsborough County Superior Court’s Southern District in Nashua rejected those arguments in his ruling.
The “EES is not confidential under RSA 105:13-b and not exempt under RSA 91-A,” Temple wrote of two laws the state had cited.
Temple did not explicitly direct the Department of Justice to release the Exculpatory Evidence Schedule. But his order — denying the state’s motion to dismiss — appears to resolve the relevant legal issues.
In a statement Wednesday, N.H. Solicitor General Daniel E. Will said the Attorney General’s Office is reviewing the order and will decide how to proceed.
“The Court did not order the immediate production of an unredacted EES,” Will said in the statement. “The Court’s order is not a final order in the case and, therefore, is not subject to immediate appeal to the New Hampshire Supreme Court.”
Gilles Bissonnette, the ACLU-NH’s legal director, called the order a win for transparency.
“Police officers have no privacy interest with respect to their own misconduct,” he wrote in a statement Wednesday. “Meanwhile, there is tremendous public interest in disclosure. Without transparency, the public is left unaware of which officers in their towns have had issues concerning their truthfulness or credibility.”
The Sentinel submitted a new public-records request Wednesday for the unredacted list, citing Temple’s order.
The Exculpatory Evidence Schedule relates to prosecutors’ constitutional obligation to provide defense lawyers with any relevant evidence favorable to their clients — including evidence from a personnel file that could damage the credibility of a police officer testifying at trial.
Previous versions have been known as the Laurie List, after a 1995 N.H. Supreme Court opinion that overturned a murder conviction because prosecutors had not disclosed a key police witness’ history of misconduct.
The list alerts prosecutors to law enforcement officers whose files might contain red flags. An officer can land on the list for a range of reasons, including lying under oath or in a police report, falsifying evidence, criminal conduct, abuse of authority, excessive use of force and “mental illness or instability” that led to disciplinary action.
The list includes current and former officers, as criminal cases can continue after the officers who investigated them retire, move or are let go.
A version updated Jan. 11 includes officers who have worked at nine local police departments. Cheshire County Attorney D. Chris McLaughlin has said that “the vast majority” of officers listed from departments in the county no longer work in law enforcement.
The news organizations and the ACLU-NH sued for the unredacted list in October, arguing that the public’s right to know about police misconduct outweighs any privacy interest the police officers may have.
RSA 91-A, also known as New Hampshire’s Right to Know law, provides that the public has the right to view governmental records, with some exceptions.
The state moved to dismiss the lawsuit on several grounds, including an assertion that the Exculpatory Evidence Schedule is a police personnel record — or at least contains personnel information — and therefore is confidential under RSA 91-A and another statute.
Temple, however, held that the document falls outside personnel-file protections. Because “the officers listed on the (Exculpatory Evidence Schedule) do not share an employee-employer relationship with the (Department of Justice), and the EES lacks any type of employment or human resources function, the Court finds the EES is not a personnel file” for the purposes of those statutes.
Separately, the N.H. Legislature is weighing a bill that would explicitly make the Exculpatory Evidence Schedule subject to disclosure. Sponsored by Rep. Paul Berch, D-Westmoreland, the bill passed the House in March and is now in a Senate committee.
Police unions have raised concerns about releasing the unredacted report, arguing some officers might not know they’re on the list or might not have had an opportunity to remove their names despite being exonerated.
An April 2018 memo from the Attorney General’s Office clarifies that officers can be placed on the list only after an investigation confirms their alleged misconduct and they have had an opportunity to challenge the placement. It is up to a police chief to determine whether the misconduct warrants inclusion on the Exculpatory Evidence Schedule. The memo also outlines protocols by which officers can seek to be removed from the list.