Policy Needed on Police Personnel Files

By Susan Slack, Esq.

In February, New Hampshire Attorney General Peter Heed sent a “Law Enforcement Memorandum” to all police departments and county attorneys in the state urging them to work cooperatively to adopt policies regarding retention and sharing of certain police disciplinary files when a police officer played a key role or is a witness in a case. Attorney General Heed’s memorandum proposes a model policy for handling what is known as Laurie materials. The sharing of confidential personnel files is always a sensitive topic, and the sharing of Laurie materials with prosecutors has stirred some controversy within police departments. Governing bodies--boards of selectmen, town and city councils--as well as town managers and administrators may become involved in some of the discussions regarding the municipality’s Laurie materials policy. Therefore, this column is intended to offer background information on the issue and the goals of the local policy.

Q. Why is certain information in police personnel files required to be shared with prosecutors?
A. The U.S. Supreme Court has held that a prosecutor has a constitutional duty to disclose evidence to a criminal defendant that is favorable to that defendant. Brady v. Maryland, 373 U.S. 83 (1963). In later cases, the Supreme Court has further defined such evidence and held that it includes exculpatory evidence (evidence that tends to establish the defendant’s innocence) or information that could impeach the credibility of a prosecution witness. Giglio v. U.S., 405 U.S. 150 (1972). Information that must be disclosed is not limited to the information known to the prosecutor. It includes information “known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). These decisions establish the basis for the prosecutor’s obligation to seek out this type of information, including police personnel files and internal investigative files that are in the hands of the police department. In State v. Laurie, 139 N.H. 325 (1995), the New Hampshire Supreme Court held that the state has an obligation to disclose to the defendant information in a police officer’s personnel file that could be used by the defense to impeach the officer’s credibility or character when the officer is a potential prosecution witness in a criminal case. Further, the Court said that when the prosecution fails to disclose this information and it would have been material to the preparation or presentation of a defendant’s case, the conviction of the defendant would be overturned unless the prosecutor can prove beyond a reasonable doubt that the information would not have affected the verdict.

Q. What are Laurie materials?
A. Not all information in a police officer’s disciplinary file is considered Laurie material that must be turned over to the prosecutor. The model policy proposed by the Attorney General’s office describes Laurie materials as: a deliberate lie during a court case, administrative hearing, other official proceeding, or internal investigation or police report; falsification of records or evidence; egregious dereliction of duty that implicates a police officer’s character for truthfulness; founded complaints of excessive use of force; mental instability resulting in suspension of the officer for evaluation or treatment, except for counseling after involvement in a traumatic incident or when no disciplinary action was taken.

In the Laurie case, the police officer’s file included documentation of many incidents that “reflect negatively on [the officer’s] character and credibility,” according to the Court. These incidents included false statements about qualifications on employment applications, claims that he had never been disciplined by pervious employers despite incidents of excessive force, abusive treatment and threats of physical harm directed at civilians, suspensions from duty, tainted court cases due to lack of truthfulness as determined by polygraph tests, misuse of firearms and a psychologist’s recommendation that the officer “should not be entrusted with a gun and a badge” and should be referred for counseling. The file was deemed material to the officer’s character and credibility, and failure by the police department to make the information available to the defense resulted in overturning a first-degree murder conviction.

Q. Isn’t the confidentiality of police personnel files protected by statute?
A. Yes. RSA 105:13-b prohibits the disclosure of a police officer’s personnel file when that officer is a witness or prosecutor in a criminal case, unless the judge hearing the case “makes a specific ruling that probable cause exists to believe that the file contains evidence relevant to that criminal case.” A judge making such a ruling shall order the police department to deliver the file to the judge for in camera review and a determination of whether or not it contains evidence relevant to the criminal case. If relevant evidence is included in the file, only those portions of the file are to be turned over to the defense and the remainder of the file is to remain confidential and be returned to the police department.

Q. What are the details of the Attorney General Office’s model policy?
A. The policy sets out time periods for which police personnel records pertaining to the types of issues described above (Laurie materials) should be maintained. If an incident is more than 10 years old it is presumed to no longer be Laurie material and may be removed from the police officer’s file as long as the officer hasn’t been involved in subsequent disciplinary action. If the officer has been involved in subsequent disciplinary action, the model policy recommends retention of Laurie materials until the officer is at least 70 years old.

If the personnel file contains records of disciplinary action that is not Laurie material, the model policy recommends deleting them from the officer’s file after two years if they are oral or written reprimands or letter of counsel; five years if they involve a suspension for no more than two days; 10 years for a suspension of two days but not more than five days; and indefinitely for other records of suspension.

Clearly, these recommendations have significant implications for municipal record keeping involving police officers currently and formerly employed by the municipality. Relevant Laurie materials must be turned over to a prosecutor even when the police officer involved is currently working for another police department or agency.

The model policy also suggests that police departments adopt the following procedure for dealing with Laurie materials: First, a deputy chief, captain, lieutenant or internal affairs officer should review disciplinary files to determine if they contain any potential Laurie information and outline such information in a memo to the chief. Second, the chief should review the memo and determine if an incident constitutes potential Laurie information. If the police chief has questions about any information present, he or she should consult with the county attorney, posing only hypothetical questions rather than disclosing any personal identifying information about a police officer. The chief should notify the police officer if it is determined that his or her file contains potential Laurie materials. The officer should be given the opportunity to disagree that an incident involved potential Laurie information, but the police chief should make a final written determination. A copy of the chief’s final written determination should be placed in the police officer’s file and sent to the police department’s prosecutor and to the county attorney. Notification to the county attorney should be limited to the officer’s name, date of birth and date of incident, but not include details of the incident. Also, the officer should be instructed in writing that in cases where he or she is a witness in a case being prosecuted by someone other than the department’s prosecutor or the county attorney or an assistant county attorney, the officer shall present a copy of the written notice to the court. Also, if Laurie material is involved, the police chief should determine if “the issue is so likely to affect the officer’ ability to continue to perform the essential job functions of a police officer as to warrant dismissal from the department.” Requests from any prosecutor or defense attorney to produce a police officer’s personnel or disciplinary file should be referred to the police chief. The chief should notify the attorney requesting the file that upon receipt of an order from the court, the file will be turned over directly to the court for in camera review by the judge. In order to protect the confidentiality of the police officer’s file as much as possible when Laurie materials are involved, the chief should request that disclosure of the file be limited to the extent required by RSA 105:13-b and that it be destroyed, returned to the police department or kept under seal in the court if necessary for appeal purposes.

Q. How is this model policy reconciled with the Municipal Records Board’s rules on retention of personnel records?
A. RSA 33-A, known as the Municipal Records Retention Act, grants the Municipal Records Board the authority to establish by administrative rule regulations for the “effective and efficient management of municipal records.” Mur 303.02 establishes a table listing the minimum retention period for types of records listed. According to this regulation, personnel files must be retained for at least seven years following termination of employment. Obviously, the AG’s model policy includes recommendations that go beyond the requirements of the Municipal Records Board. However, according to the AG’s memorandum, “The Municipal Records Act does not contemplate disclosures that may be required under State v. Laurie, 139 N.H. 325 (1995).

Q. Where can the municipality get more information about the model policy recommended by the AG’s office and how to comply with the law on disclosure of relevant police personnel files?
A. The police chief, town/city manager or administrator, or governing body can contact Associate Attorney General Ann Rice (271-3671) and should discuss these issues with the municipality’s attorney.