Product Specifications of Covert Communications Equipment Used by Police Department Exempt from Disclosure under Right-to-Know Law

ACLU of NH & Concord Monitor v. City of Concord
New Hampshire Superior Court Docket No. 217-2019-CV-00462
Friday, December 20, 2019

The City of Concord’s budget contained a line for $5,100 for “Covert Communications Equipment” associated with the City’s police department. The ACLU and Concord Monitor both filed Right-to-Know requests to learn more about the Covert Communications Equipment.

The Concord Police Department responded to both Right-to-Know requests with a series of records, including twenty-nine pages of redacted documents. The redactions concealed the name of the vendor of the equipment, the "governing law" provision in the City's Agreement with the vendor, the nature of the equipment, what type of information the vendor gathers, and how the vendor uses that information.

Unsatisfied with the disclosure, both the ACLU and Concord Monitor filed suit in the Superior Court pursuant to RSA 91-A:7.

Following Lodge v. Knowlton, 118 N.H. 574 (1978), the Superior Court determined that Law Enforcement Exceptions (a) Interference with Enforcement Proceedings, (e) Techniques and Procedures, and (f) Danger to Life and Physical Safety applied in this circumstance. Notably, in an in camera hearing, the City showed that ‘enforcement proceedings are pending or reasonably Anticipated’ and that ‘disclosure of the requested documents could reasonably be expected to interfere with those proceedings,’ satisfying (a). Further, the City, in that hearing, ‘demonstrate logically how the release of the requested information might create a risk of circumvention of the law,’ satisfying (e). Last, the City ‘demonstrated that revealing the redacted content could lead to the identification of the equipment used and of the manner in which it is employed and knowledge of such information could reasonably be misused for “nefarious ends,” including physical and deadly harm, satisfying (f).

Note: This case is presently on appeal at the New Hampshire Supreme Court.


Additional Information: 

Practice Pointer:  Prior to publicly disclosing information that will lead to public inquiry, law enforcement agencies should carefully evaluate the disclosure in light of the FOIA standards under Lodge v. Knowlton to determine whether subsequent disclosures will be necessary as a result of the first disclosure.