Views about important issues can sometimes change in a hurry. That’s certainly been true for the cause of increased transparency in law enforcement, and a N.H. Supreme Court ruling last week in the so-called Laurie List case demonstrates how quickly support for greater accountability has grown and moved beyond the case since it began.
The case was filed in late 2018 by five news media organizations, including The Sentinel, and the ACLU of New Hampshire to obtain full disclosure of the Department of Justice’s Exculpatory Evidence Schedule. The schedule — often called the Laurie List after the name of the 1995 case which led to its compilation — provides prosecutors with information about law enforcement officers whose testimony, due to misconduct or other reasons, might be called into question during a trial.
The public’s interest in knowing this information about public servants who wield such considerable authority in its name and at its expense, and in having confidence that those they testify against receive a fair trial, is compelling. The Justice Department nevertheless redacted the parts of the list that might identify the officers, arguing the information was exempt from disclosure under the state’s Right-to-Know law because the list relates to an internal personnel practice, it is a personnel file and disclosure would be an invasion of the listed officers’ privacy.
This May, while the Laurie List case made its way through the court system, the Supreme Court ruled, in two cases seeking disclosure of police misconduct, that the strong public interest in government transparency the Right-to-Know law promotes sharply limits the internal practices exemption and requires a balancing test for personnel files to determine whether the public’s interest in the information outweighs the privacy interest. Last week, the Supreme Court reaffirmed that position in the Laurie List case, rejecting the state’s arguments that the list pertains to an internal personnel practice and that it is a personnel file exempt from disclosure under the Right-to-Know law or other statute.
Because the trial court had not considered the list in light of the privacy balancing test, however, the Supreme Court sent the case back for a hearing on that issue.
Even though the case has not yet reached final resolution, public momentum for greater law enforcement transparency has built rapidly amidst the widespread outcry over social injustice and systemic racism following George Floyd’s killing in May. Gov. Chris Sununu promptly established a commission to make recommendations for improving law enforcement accountability, transparency and community relations.
On Aug. 31, its members — who include representatives from law enforcement and the local Black Lives Matter and ACLU chapters — made its unanimous recommendations, and the governor has accepted them all and ordered the attorney general to implement them by drafting executive orders or proposing legislation. The recommendations are wide-ranging and promising, and include such important steps as raising police standards, enhancing training related to diversity matters and fostering community engagement.
Signaling just how significantly public opinion — and now Sununu administration policy — has moved toward greater transparency regarding instances of police misconduct, the commission called for the establishment of an independent statewide body to oversee misconduct charges and, after due process, make public its findings. And it specifically recommended the Laurie List be made fully public, provided the officers have had the opportunity to challenge the finding of having a witness credibility issue that resulted in their being placed on the list. Not only did Gov. Sununu endorse that recommendation, but following the Supreme Court’s ruling in the Laurie List case last week, he also reaffirmed he will work toward legislation to enact the recommendation.
These are welcome developments, and we hope they will lead to clear legislative standards for public disclosure of police misconduct findings and credibility concerns that won’t necessitate the public having to sue under the Right-to-Know law to find out about them. We have long maintained that the vast majority of New Hampshire’s law enforcement officers serve the public admirably and with integrity. Shining light on the few exceptions who prove the rule will only heighten public confidence in law enforcement and in the criminal justice system.