NASHUA — The secret list of police officers red-flagged for dishonesty or troubling behavior increased from 171 last summer to 264 now, state prosecutors acknowledged Monday.
The increase was mentioned during a hearing in Hillsborough County Superior Court-South, where lawyers for Attorney General Gordon MacDonald are fighting release of the complete list, including the names of the officers, to media and civil libertarians.
After Monday’s hearing, the Union Leader obtained the latest public version of the list, dated Jan. 11. Names of officers and in some case their agencies remain blacked out.
Geoffrey Ward, chief of the Criminal Justice Bureau in MacDonald’s office, stressed the list is constantly updated, often with historical information. Many people on the list are no longer even in uniform.
“We’re collecting for the large part historical data,” Ward said. “Older names that have gone onto the list that have been in existence elsewhere are just making it on to our list.”
The hearing lasted more than two hours and pitted MacDonald’s office against the New Hampshire Union Leader, five other media outlets, and the American Civil Liberties Union-New Hampshire, who all have asked for the list under the state’s Right-to-Know Law.
MacDonald’s office is in charge of compiling and maintaining the list, formally called the “Exculpatory Evidence Schedule.”
Prosecutors use it to identify whether police officers involved in a case have credibility problems.
“The public’s ability to learn what the government is up to doesn’t include just knowing what the government is up to, it also includes knowing who is up to what,” argued Gilles Bissonnette, legal director for the ACLU-NH.
Solicitor General Daniel Will claimed the law prevents disclosure of the names. He equated the list with police personnel files and said the law recognizes the need to keep such files confidential. For example, a person who makes a complaint about an officer wouldn’t want to be publicly identified, he suggested.
That’s more important than the public’s right to the information, Will asserted.
“There’s almost nothing to balance. The Legislature and the courts have recognized a public interest in confidentiality,” he said.
But Union Leader attorney Gregory Sullivan and Bissonnette said the list is not a personnel file, but a list of police officers found by their chiefs to have credibility problems.
“We’re not talking about internal personnel practices or personnel documents, we’re talking about one list maintained by the Department of Justice,” Sullivan said.
During the hearing, Judge Charles Temple asked lawyers for both sides questions and took notes when Sullivan and Bissonnette gave their arguments.
At one point, the judge compared disclosure of the list to his decision in the case of the Merrimack woman who won Powerball last year. He eventually decided to disclose some information about the purchase, but not her name.
The Criminal Justice Bureau’s Ward was peppered with questions by reporters about the recently updated list. He stressed that it is a constitutional responsibility of a prosecutor in every case — even police prosecutors who are not lawyers — to disclose any credibility problems with police witnesses.
Ward would not directly answer questions about whether his office is informing defendants in settled cases if a police officer involved in their investigation has landed on the list.
“It’s been incumbent that prosecutors do that, and we have faith that has happened through that process,” he said.
Ward said he can’t guarantee that every prosecutor has always fulfilled his or her duty. If a defendant feels the information was not disclosed, he can go to court, Ward said.