NH fights to keep the archives secret. The soldier fired after searching the cavity.

A judge gave a New Hampshire state attorney a hard time on Thursday as she tried to argue that the disciplinary records of a state trooper fired for misconduct should be kept confidential.

If you “look at the trend in New Hampshire Supreme Court cases, your reading seems to deviate from this broader view of public access to public records,” said Merrimack County Superior Judge John C. Kissinger Jr., to Assistant Attorney General Jessica. King halfway through the hearing.

The hearing came amid a lawsuit filed by the ACLU of New Hampshire, which is seeking the disciplinary records of former Cavalier Haden Wilber. NH State Police have so far refused to release the records, citing staff confidentiality concerns.

Context:ACLU sues over records of woman’s arrest, jailing and body search after traffic stop

The case stems from a 2017 vehicle stop on Interstate 95 in Portsmouth. After finding a small amount of heroin residue, Wilber also claimed that the driver, a Maine woman, had hidden drugs in her body and accused her of smuggling into the jail. No drugs were recovered during the 13 days she spent in jail or the invasive vaginal and rectal search she had to undergo before her release. The charges were eventually dropped.

Last year, the state paid the Maine woman $212,500 to settle a lawsuit alleging Wilber violated her civil rights by illegally searching her purse and falsely accusing her of having drugs in his body.

An internal state police investigation found that Wilber also unlawfully searched the woman’s phone without a warrant and made false statements to investigators. Wilber was added to the Exculpatory Evidence Calendar, a list of current and former officers with potential credibility issues, also known as the “Laurie List”.

Coming to light:The full ‘Laurie List’ of NH police with credibility issues has been released. It’s here.

In firing Wilber, State Police Chief Col. Nathan A. Noyes said the investigation “revealed disturbing facts about your investigative habits and general integrity as a law enforcement officer.” the order”.

Wilber disputes the findings and appeals his dismissal.

Impact of the case

The case could have wider implications for police transparency. The state argued that police officers’ personal records are categorically exempt from disclosure under New Hampshire’s public records laws. This would be a departure from the general rule for public employees, established by the NH Supreme Court less than two years ago, that such documents may be released if their public importance outweighs any consideration of confidentiality.

The state law “gives police personnel records the maximum confidentiality permitted by the constitutions of the United States and New Hampshire,” King wrote in a response to the lawsuit, citing a law governing the disclosure of information in criminal cases.

The ACLU-NH argues that this position misinterprets the law and, if adopted, would represent a step backwards for police accountability.

“If this isn’t a case where disclosure is required, then I don’t know what case it is,” Gilles Bissonnette, the body’s legal director, said during Thursday’s hearing. “Yet in the face of all this misconduct … the state police here take a different stance, arguing that secrecy should prevail.”

ACLU on police misconduct: ‘It’s real’

At Thursday morning’s hearing in Concord, Bissonnette said the public deserved to know more about Wilber’s conduct and the depth of the state police investigation.

“We have bad behavior,” he said. “It’s not alleged. It’s not hypothetical. It’s true.”

Bissonnette said the records could also reveal more about the practices of the unit Wilber was assigned to, the Mobile Fraud Team, which the ACLU has criticized for using traffic stops as pretexts for drug investigations.

King argued that the legislature singled out police personnel records for increased confidentiality through RSA 105:13-b, the Criminal Matters Disclosures Act.

One reason for this is to ensure that police officers and other witnesses feel comfortable reporting misconduct and speaking to internal affairs investigators, she said. “With the police in particular, we want to make sure that there are thorough investigations, that police personnel come forward and participate sincerely and honestly in the investigation.”

Bissonnette said the law is limited to criminal cases and does not prohibit disclosures under New Hampshire’s open records law. Kissinger let Bissonnette continue her arguments largely uninterrupted, but repeatedly interrupted King—beginning less than a minute into her argument—to press her on various points, including the claim that 105 : 13-b prevents disclosure under the state’s right to know. Law.

“You’re basically saying that unless it’s a civil trial or a criminal proceeding, it’s — it’s not allowed,” Kissinger said. “There is no public access to information.”

King confirmed that this is the state’s position.

King also argued that the records should be withheld even if the usual balancing test is applied because they relate to an individual employee and would shed little light on state police activities more generally. The privacy interests of Wilber and anyone else who spoke to investigators during the investigation should take priority, she argued.

“It’s a soldier in a case we’re talking about,” she said. “And when you say ‘flagrant conduct’, when you look at the [termination] letter, there were many intermediate steps that led to everything that happened,” adding that “it was not the type of flagrant conduct” that tipped the scales in favor of the public interest. in other cases.

“I don’t know if it’s worth saying that there are other, even more egregious behaviors out there,” Kissinger noted.

He did not immediately render a decision, saying he would take the arguments under advisement.

These articles are shared by The Granite State News Collaborative partners as part of our Race and Equity Project. For more information, visit collaborativenh.org.

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