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Lawmaker wants police disciplinary files public

Jan 10, 2019

BY: Citizens Count

Rep. Paul Berch (D-Westmoreland) is sponsoring a 2019 bill that would open some disciplinary records in a police officer’s personnel file to the public.

Confidentiality for police personnel files

If a police officer is convicted of a crime, that criminal record is public.  

Misconduct by a police officer might not rise to the level of a criminal conviction, however.  In those cases, there are still disciplinary records in the officer’s personnel file.  Those disciplinary records are not open to the public.

Under current state law, police personnel files are confidential and shielded from New Hampshire’s right-to-know law, just like the personnel files of other public employees.

Learn more about New Hampshire’s right-to-know law 

Ending confidentiality

Rep. Berch is sponsoring HB 153, a 2019 bill that would make some of the disciplinary records in police personnel files public under the right-to-know law. The bill singles out records where there has been a “final adjudication” after a law enforcement officer:

  • discharged a firearm which led to death or serious injury
  • committed sexual assault
  • Has a history of dishonesty, including "perjury, false statements, filing false reports destruction, falsifying, or concealing of evidence”  

Confidentiality and the Exculpatory Evidence Schedule

A recent court case centers around the issue of police misconduct and confidentiality.  The New Hampshire chapter of the American Civil Liberties Union (ACLU) and several news outlets are suing for more information about the Exculpatory Evidence Schedule.  

The Exculpatory Evidence Schedule – also known as the Laurie List – includes officers whose credibility may come into question during a trial.  Those credibility issues might relate to actions such as use of excessive force, falsifying reports, lying in court, or sexual harassment.  

Right now, prosecutors have access to the names and personnel files of officers through the Exculpatory Evidence Schedule, and they are required to share that information with the defense if it might impact the outcome of a trial.  

The public does not have access to any of the names on the list, or details about the misconduct.

Learn more about the debate over the Exculpatory Evidence Schedule

Arguments for public access

Supporters of HB 153 – and the ACLU lawsuit – argue that the public has a significant interest in knowing all the details of police misconduct.

In December Rep. Berch told the Concord Monitor:

“At the heart of [HB 153] is the belief that the public is the employer. If the employee does some serious misconduct while in the course of their employment, the employer should know.”  - Concord Monitor 

Arguments against public access

Opponents argue that disciplinary records are very different than criminal records, and opening personnel files to the public will unjustly destroy officers’ reputations. 

There is also already a system in place – through the Exculpatory Evidence Schedule – to protect the rights of citizens who could be impacted by police misconduct.

Do you think some disciplinary records in a police officer’s personnel file should be open to the public? Let us know in the comments, and we’ll present your views to legislators debating this bill. 

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RELATED REPRESENTATIVES

Representative, NH House of Representatives (2012 - present); Former Acting Judge; Former President, Windham County Bar Association; Board Member and Co-Chairman, Legal Panel of the Vermont ACLU; Retired Attorney

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