BRENTWOOD — A Rockingham County judge decided Friday to undo several redactions made by the town of Salem in its release of a critical audit report of the Salem Police Department.
Superior Court Judge Andy Schulman said in his ruling that he compared the unredacted audit report by Kroll Inc. with the redacted version that was released by the town in November.
Schulman said this “laborious process” showed that “with a few glaring exceptions,” the original redactions were limited to identifying information of people involved in internal affairs investigations or who worked outside details while on their paid shift.
Schulman agreed with the argument made by the plaintiffs in the suit — the Union Leader and the American Civil Liberties Union of New Hampshire — that balancing public interest in disclosure against privacy interests of individual officers strongly favors disclosure. However, the law protecting “internal personnel practices” forbids the court from making that call.
Schulman based his decision on the New Hampshire Supreme Court case that includes internal affairs investigations as “internal personnel practices,” Union Leader Corp. v. Fenniman (1993), but he also found fault in that ruling.
“The audit report proves that bad things happen in the dark when the ultimate watchdogs of accountability — i.e. the voters and taxpayers — are viewed as alien rather than integral to the process of policing the police,” Schulman wrote.
He went on to point out that all five current Supreme Court justices roundly criticized a string of cases affected by the Fenniman decision in a jointly published opinion.
Union Leader attorney Gregory Sullivan applauded the portions of the decision that overruled redactions. He said the Union Leader “looks forward to the day when the Fenniman decision is overturned. When that happens, trial court judges will be free to balance the public’s right to know against the tendency of police departments and municipalities to keep wrongful conduct hidden from the citizenry.”
Gilles Bissonnette, the legal director of ACLU-NH, said the organization continues to believe the audit report should be released in full.
“We are currently reviewing the decision and our options,” Bissonnette said in an emailed statement.
He echoed Sullivan’s sentiment regarding the Fenniman case and related decisions.
“These Supreme Court decisions were wrongly decided and are deeply damaging to government transparency and accountability,” Bissonnette wrote.
Town Manager Chris Dillon had no comment when reached Friday apart from saying he had just received the ruling and planned to review it over the weekend.
Schulman lists several redactions he wants the town to undo, including:
Where Kroll auditors expressed “grave concern” that a Salem police “supervisor expressed contempt toward complainants, ignored the policy requiring fair and thorough investigations and has an attitude that this department is not under any obligation to make efforts to prove or disprove complaints against his officers, especially one involving alleged physical abuse while in custody.” In the publicly released audit report, the word “supervisor” is redacted.
A section where a former Salem police officer spoke to auditors was redacted, though no identifying information was given, and the content of what he said — that complaints against supervisors don’t get handled seriously — was already unredacted.
Where a complainant’s allegation that a supervisor arrested a family member of someone he was in a relationship with without probable cause. Since there was neither an IA investigation nor any names, Schulman said it didn’t fall into any legal exemptions.
On page 110 of the report, where Schulman revealed it was Deputy Chief Robert Morin’s name that was redacted as the administration member Kroll auditors said “regularly and vehemently disparaged Kroll’s efforts and the town’s decision — in various online and in-person methods — to conduct an audit, in what he and the union considered was his role as union president.”
Morin is currently the subject of a criminal investigation by the state Attorney General’s office and has been on paid administrative leave since mid-January. Two other senior officers and former Chief Paul Donovan are also under criminal investigation.
In an addendum of the audit report describing a culture of insubordination to town authority within the department, it’s alleged that Donovan took multiple days off without notifying Town Manager Chris Dillon, according to Schulman’s summary.
Schulman summarized a section of the culture addendum that names Donovan as being “personally responsible” for the department’s lack of cooperation with town officials.