CONCORD — Supreme Court justices Wednesday entertained the idea of overturning a 26-year-old legal precedent that keeps information about the misconduct of police and other government employees hidden from the public.
A question-and-answer session took place as the justices heard arguments in three such cases.
Four judges peppered lawyers about what would happen if the 1993 Supreme Court decision named for former Dover Police Chief William Fenniman, which exempted records of public employee misconduct from public scrutiny, were to be overturned.
Wednesday’s appeals were brought by two newspaper companies — the Union Leader Corporation and Seacoast Newspapers Inc. — and Keene State College journalism instructor Marianne Salcetti, who sued Keene after the city repeatedly refused Right-to-Know requests from students about matters such as restaurant inspections, police misconduct, public drinking citations and sexual assaults.
The judges asked how other states handle reports of employee misconduct. The records are public in Vermont, Massachusetts and the federal government, the judges were told.
Judges asked what would happen to whistleblowers if files of misconduct were to be disclosed. A judge could order the identity remain hidden, they were told. And they asked what would happen to the current cases if they overturned Fenniman. Those cases would be returned to lower courts, lawyers said.
“Can we rule in your favor if we don’t overturn Fenniman?” asked Justice James Bassett in the first of three cases, one brought by Seacoast Newspapers to unseal records related to an arbitration involving a Portsmouth police officer.
“Yes,” said Richard Gagliuso, Seacoast Newspapers’ lawyer, who went on to urge justices to jettison Fenniman.
Lawyers representing the town of Salem and the New England Police Benevolent Association union — whose members could see portions of their personnel files made public — said that Fenniman should stand.
Barton Mayer, the lawyer representing Salem, said the only interest in his case — which deals with a highly critical audit of the Salem Police Department — are the names of specific police officers, which remain redacted.
“Why would the public have an interest in a specific name? How do you hold a specific cop accountable? Do you do it on the side of the road?” he asked.
Lawyers urging disclosure said the Supreme Court erroneously interpreted the Right-to-Know Law in the Fenniman opinion. They said the court should allow officials and judges to balance the public’s interest in holding government accountable against the privacy rights of workers as well as other government goals.
“It’s a balancing test, as in virtually all Constitutional questions,” said Gregory Sullivan, who represented the Union Leader Corp. in the Salem case and also represented the Keene State College professor.
Sullivan and the ACLU, which was involved in the Salem case, urged the judges to consider not just the Right-to-Know Law, but the state constitution, which says the public’s access to government records should not be unreasonably restricted.
Opponents urged the Supreme Court to let the state Legislature make the changes the newspapers seek.
“If there’s been a statute they’re more aware of, I don’t know it,” said Peter Perroni, an intervenor in the Salem and Portsmouth cases on behalf of the New England Police Benevolent Association union.
Thomas Mullins, the lawyer representing the city of Keene, said the entire law should be reworked, likening it to a historic New England farmhouse that gets added on to and becomes inefficient.
Some of the information in government records is appalling, he said.
Meanwhile, local officials with no training are tasked with determining what is confidential and what is not, Mullins said.
“This is a very difficult statute to understand,” he said.
A decision is expected in three to six months. After the session, lawyers for both sides did not want to speculate on the future of Fenniman.
Mayer, the lawyer defending Salem, claimed that if Fenniman is overturned, then every decision regarding disclosure from a personnel file will end up at the Supreme Court.
“The Supreme Court will become the super personnel board of the state of New Hampshire,” he said.
But Gilles Bissonnette, the ACLU-New Hampshire lawyer in the Salem case, said the Supreme Court encouraged challenges to Fenniman in a 2016 decision. If the court rejects Fenniman, it will re-establish the purpose of the Right-to-Know Law, he said.
“Over the past several decades, it’s become a withholding statute, rather than a disclosure statute,” Bissonnette said.