The NH Center for Public Interest Journalism, along with five newspapers and the ACLU sought access to the Exculpatory Evidence Schedule (EES) containing the names of police officers who have engaged in misconduct that reflects negatively on their credibility as witnesses. The plaintiffs argued that the list must be made public pursuant to the Right-to-Know Law, RSA chapter 91-A, and Part I, Article 8 of the New Hampshire Constitution.
Formerly known as the Laurie List, the EES is currently maintained by the Department of Justice (DOJ). Under the NH Supreme Court decision in State v. Laurie, 139 N.H. 325 (1995) prosecutors have a duty to disclose information that may be used to impeach police officer witnesses. Originally only maintained by county attorneys, the Laurie list was converted to the EES by the Attorney General in 2017 and now consists of a spreadsheet containing five columns of information: (1) officer’s name; (2) department employing the officer; (3) date of incident; (4) date of notification; and (5) category or type of behavior that resulted in the officer being placed on the list.
On appeal from a decision in favor of disclosure by the Superior Court, the DOJ argued that RSA 105:13-b precludes disclosure of the EES because it is a record whose disclosure is prohibited by statute. The Supreme Court rejected that argument because the express focus of RSA 105:13-b is on information maintained in the personnel file of a specific policy officer. Because the EES is maintained by the DOJ, and the DOJ does not employ officers on the EES, the EES is not a personnel file within the meaning of RSA 105:13-b. The DOJ also argued that the EES is an internal personnel practice exempt from disclosure under the Court’s decision in Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993). However, since the Court overruled Fenniman in Seacoast Newspapers, Inc. v. City of Portsmouth, 173 N.H. ___, ___ (decided May 29, 2020) (slip op. at 9) and Union Leader Corp. v. Town of Salem, 173 N.H. ___, ___ (decided May 29, 2020) that argument was also rejected.
The case was returned to the Superior Court to determine under the customary balancing test whether disclosure of the EES would constitute an invasion of privacy.