SALEM — The Union Leader Corporation and the American Civil Liberties Union of New Hampshire are appealing the recent decision by a superior court judge to sustain several redactions in an audit report critical of the Salem Police Department.
In their appeal to the New Hampshire Supreme Court, the plaintiffs ask whether Rockingham County Superior Court Judge Andy Schulman erred when he ruled last week that the portions of an audit report by Kroll Inc. that reviewed police internal affairs investigations constitute “internal personnel practices” and are exempt from the state’s Right-to-Know law.
“Resolution of this question implicates whether this court’s decision in Fenniman was wrongly decided and must be overruled,” the appeal states.
The Union Leader Corp. v. Fenniman was a Supreme Court decision in the 1990s that lower courts today use to broadly define IA investigations as a part of the state’s Right-to-Know exemptions for “internal personnel practices.”
“The court felt compelled to keep some of this information secret given a series of New Hampshire court decisions that have allowed municipal entities to hide valuable ‘internal personnel practice’ information from the public even if the public interest in disclosure is compelling,” said Gilles Bissonnette with the ACLU. “These Supreme Court decisions were wrongly decided and are deeply damaging to government transparency and accountability.”
The Supreme Court appeared to agree in 2016 when it wrote in a related decision that the court departed from its customary jurisprudence by declining to interpret the exemption narrowly and by declining to employ a balancing test.
Schulman, in his decision, said a balance of public interest in disclosure against the privacy concerns of individual police officers favors disclosure, but the Fenniman decision does not grant him the latitude for such a ruling. He also pointed out that reasonable judges in other states have made opposite rulings on this issue.
“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.
There were several sections of the audit report that Schulman said were not exempt and did not need to be redacted, and he ordered the town of Salem to release an adjusted version. But he sustained several other redactions.
Town Manager Chris Dillon said he did not plan on appealing the decision, and Peter Perroni, a lawyer representing the police union which intervened in the suit, previously said the union was gratified with the judge’s ruling.
“While they (the Union Leader and ACLU) seek further defining or review of the law, we will continue to abide by it,” Dillon said in an email Thursday. “I believe a balance can occur where individual employees maintain their protections but some information, similar to the Kroll report, can be shared. I would also like to reiterate that although the Kroll report exposed deficiencies in the department, the majority of the employees were not involved and they continue to work hard every day to keep everyone safe.”
Schulman made his ruling after reviewing an unredacted version of the audit report supplied to him by the town for in camera review, after a Jan. 24 hearing.
The state Attorney General’s office is currently conducting criminal investigations into former Chief Paul Donovan, Deputy Chief Robert Morin, Capt.Michael Wagner and Sgt. Michael Verrocchi.