ACLU, other groups to sue for secret list of 'problem officers'

By Mark Hayward The New Hampshire Union Leader

MANCHESTER, NH — The New Hampshire Union Leader, five other news organizations and the American Civil Liberties Union are expected to file a lawsuit today that seeks to open up the secret list of police officers who have been red-flagged for credibility, excessive force and other problems.

The lawsuit, which is to be filed in Hillsborough County Superior Court-South, challenges the long-standing practice of New Hampshire Attorneys General, who maintain a statewide list. Attorneys General have said the sole purpose of the list is to alert defense attorneys about possible credibility problems of officers who may testify against their clients.

“The public has a right to know whether current and former officers serving them have committed misconduct in the course of their duties. As the New Hampshire Supreme Court has repeatedly explained, the public interest in disclosure is great when it will potentially expose government misconduct,” the lawsuit reads.

The lawsuit cites the New Hampshire Right-to-Know Law and Part 1, Article 8 of the state Constitution, which says the public right of access to governmental proceedings and records should not be unreasonably restricted. It seeks priority standing on the court calendar and lawyer and court fees from the defendant, New Hampshire Attorney General Gordon MacDonald.

Prosecutors have maintained lists of problem cops since 2004, according to the lawsuit.

The statewide list was initially labeled the “Laurie List,” named after Carl Laurie, whose first-degree murder conviction was overturned in 1995 because prosecutors did not give his lawyers information about the police investigator’s volatile and abusive behavior, according to a previous Union Leader report.

Last year, then-Attorney General Joseph Foster, a Democratic appointee, broadened the list when he included unsubstantiated complaints against officers while they were being investigated.

But earlier this year, MacDonald, a Republican appointee, won the praise of police when he said officers would land on the list only after the investigation. He expanded the list to include complaints about excessive force, failure to comply with legal procedures and signs of mental illness or instability.

He also gave it a formal name — Exculpatory Evidence Schedule, or EES. (“Exculpatory evidence” refers to evidence that helps a defendant.)

In the past, MacDonald’s office has released the list with names of officers redacted. He has refused requests by the ACLU, the Union Leader and other media outlets for the complete list.

In June, MacDonald’s office said 171 names were on the list, but not all were currently employed as police officers.

On Aug. 28, Senior Assistant Attorney General Francis Fredericks rejected the Union Leader’s request for the unredacted list. He wrote that the EES is used as a reference point for prosecutors to determine if evidence favorable to a defendant is in a police officer’s personnel file.

While he admits that “a public interest does exist in the listed officers’ identities,” he said the EES list does not include the details or context of the underlying conduct.

“The EES was not created for public informational purposes, and, as such, the spreadsheet was not developed in a manner that substantively identifies, or provides context to, the conduct of the individual officer that resulted in his or her placement on the list,” Fredericks wrote.

State laws, he noted, clearly protect information in a police officer’s personnel file.

But the lawsuit argues that the EES is not a personnel file, so the state law prohibiting disclosure of police personnel files does not apply.

According to the suit, the New Hampshire Supreme Court has called for a balancing act to determine disclosure of government records.

In this case, the public interest in problem police officers outweighs their privacy interest, the lawsuit reads.

In a statement, Union Leader lawyer Gregory V. Sullivan said: “This lawsuit is seeking the disclosure of law enforcement records. These records are exempt from disclosure only if the disclosures would — one, interfere with enforcement proceedings; two, deprive a person of their right to a fair trial; or three, would constitute an unwarranted invasion of personal privacy.

“The Supreme Court of New Hampshire declared that to be the law in New Hampshire almost four decades ago. Shedding light on the performance of government officials — in this case, police officers — is the quintessential purpose of both Part 1 Article 8 of the New Hampshire Constitution and the Right-to-Know law.

“All of the petitioners in this lawsuit are dedicated to ensuring that the light of public scrutiny is not unnecessarily extinguished,” Sullivan concluded.

In a footnote, the ACLU said that the issue would be eliminated altogether if New Hampshire followed the practice of other states, including Florida and Texas, that make public any disciplinary findings in a police officer’s personnel file.

The suit also said the issue is not just hypothetical and lists several breaches of Laurie List and EES protocol:

The non-disclosure of a lie by Nashua police officer John Seusing, who eventually became chief. Seusing investigated a slew of cases, including three homicides. The nondisclosure of a Pelham police officer who was on the list, prompting a jury verdict to be overturned in 2011. A decision by then-Rockingham County Attorney Jim Reams to improperly remove a Salem police sergeant from the list.

“Keeping information secret, especially when it comes to police behavior and how prosecutors do their jobs, only creates distrust and suspicion that minimizes the hard work and dedication shown by the overwhelming majority of law enforcement professionals,” the suit reads.