In the wake of demonstrations over social justice and systemic racism that erupted nationwide and here in New Hampshire following the death of George Floyd in Minneapolis police custody last May, the state has begun taking significant steps toward assuring greater law enforcement accountability and transparency. Astonishingly, a bill introduced this session in the Senate proposes that New Hampshire instead take a huge, and dangerous, step backward.
Understanding the gravity of the protesting, Gov. Chris Sununu reacted swiftly and in mid-June created a commission that included a spectrum of representatives, from state and local law enforcement, the Black Lives Matter movement and civil and human rights groups, and charged it with making recommendations for law enforcement reforms “necessary to enhance transparency, accountability and community relations.” The commission moved quickly and by Aug. 31 submitted a unanimous report to the governor and legislative leadership. Included were recommendations to enhance transparency and accountability in the handling of police misconduct allegations. Gov. Sununu promptly endorsed all of the commission’s recommendations, and the process he then ordered to implement or craft legislation to enact them is well underway.
Despite this strong momentum toward greater transparency, now comes a bill before the Senate introduced by Sen. Sharon Carson, R-Londonderry, that, astoundingly, seeks instead to increase secrecy about police misconduct and disciplinary matters. The state’s Right-to-Know law has long provided an exception to public disclosure for personnel files of all public officials and employees, including police, when disclosure would constitute an invasion of privacy. In practice this has resulted in a weighing of the privacy interests involved against the public’s right — enshrined in the Constitution — to know how its officials are acting on its behalf. It’s a balancing test that sensibly recognizes a strong interest the public has in knowing, for example, that one of its employees has been disciplined for misconduct in the performance of official duties, and the employee’s interest in keeping confidential such matters as medical records, intimate personal details and the like.
Senate Bill 39 seeks to undo all that, at least for police. If enacted, it would categorically exempt all personnel file information, internal investigations and pre-employment background investigations of any state or local law enforcement officer — in all cases and for all time. Disturbingly, this would result in even less transparency for the police than for any other type of public official, despite the greater need for accountability of those whom the state entrusts, in the enforcement of its laws, with the authority to use lethal force and to deprive people of their liberty.
Impetus for the bill probably came from a pair of Supreme Court decisions in June that established that disclosure of personnel records and internal investigations is not automatic, but that the privacy concerns must be weighed against the public interest. Without this standard in the case of alleged police misconduct, the public would never learn, as it now has, of: a Manchester police officer who sent racist text messages on his police phone (which referred to Black men as “parking tickets”); a Portsmouth officer found to have unduly influenced an elderly woman to leave him a $2 million inheritance; or a state trooper who lied on a police report.
Throughout the social-justice protesting we have stated that issues of racial injustice involving law enforcement are comparatively infrequent in New Hampshire and that instances of police misconduct have been more the exception that support confidence in the widespread high competency and dedication of New Hampshire’s law enforcement officers. SB 39 not only runs entirely counter to the strong, bipartisan effort led by Gov. Sununu to make law enforcement more transparent and accountable.
By leaving the public no window into the functioning of the police who work for them, it would also promote an impression that police departments may be protecting bad officers and hiding misconduct from those they serve. That would be a dangerous and undesirable undermining of public confidence in law enforcement the state can ill afford. The Senate should kill this very bad bill.