John Doe v. Department of Justice & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0449, John Doe v. Department of Justice
& a., the court on December 3, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiff, John Doe, appeals an order of the Superior Court (Leonard, J.)
granting summary judgment in favor of the New Hampshire Department of
Justice (DOJ) in the plaintiff’s action seeking declaratory judgment under RSA
105:13-d (2023) and injunctive relief to have his name removed from the
Exculpatory Evidence Schedule (EES). We conclude that, as a matter of law,
the plaintiff’s conduct does not constitute potentially exculpatory evidence for
purposes of the EES. See RSA 105:13-d. Accordingly, we reverse and remand.

The following facts are taken from the trial court’s order or are otherwise
supported by the record. In 2013, the plaintiff, who worked as a police officer,
was informed that a complaint had been made regarding his conduct during an
off-duty incident. The plaintiff discussed the complaint with another officer,
who then wrote a letter to the officer assigned to investigate the complaint,
apprising him of his conversation with the plaintiff. Later that day, the
investigating officer delivered a letter to the plaintiff notifying him that the
officer would be conducting a formal investigation.

During a subsequent interview, when the investigating officer asked the
plaintiff when he had first learned of the investigation, the plaintiff “verbally
stumbled with a response” and gestured to the department’s mail slots. He
then said “from your . . . letter advising of the complaint.” Based upon this
response, the investigating officer determined that the plaintiff had been
untruthful. Specifically, the investigating officer found that the plaintiff knew a
complaint had been made prior to receiving the investigating officer’s letter and
that the plaintiff “displayed an uneasiness and delay during this response that
would be indicative of deception.”

The investigating officer issued, as relevant here, a finding of misconduct
based not upon the initial complaint, but upon his conclusion that the plaintiff
had lied during the internal investigation, which violated department rules
relating to truthfulness. As a result, the investigating officer recommended
that the plaintiff’s employment be terminated. The investigating officer also
observed that the plaintiff’s dishonesty during the internal investigation would
“be an issue that would require disclosure in any case [in which the plaintiff] is
a witness.” The chief responded to the investigating officer’s report by
explaining that a family member of his had informed the plaintiff of the
investigation before the investigating officer delivered the letter to the plaintiff.
According to the chief, this circumstance may have led to the plaintiff’s
hesitation when questioned about when he learned of the investigation.
Approximately one month later, the plaintiff resigned from the department.

In a separate matter in 2014, a county attorney brought the details of
this internal investigation before the circuit court. The court issued a sealed
order concluding, in relevant part, that there was “substantial dispute as to the
basis for the finding” made in the internal investigation and, “provided no
further concerns [are] raised, Laurie disclosures involving [the plaintiff] as a
witness are not necessary.”1 In March 2021, a county attorney requested that
the DOJ remove the plaintiff’s name from the EES, citing the 2014 court order.
The DOJ denied the request, explaining that the circuit court’s order “does not
meet the EES removal requirements since the sustained disciplinary finding
against [the plaintiff] was not overturned” and that the court’s decision “was
limited to deciding an evidentiary issue in the particular case before it.”

On September 27, 2021, the plaintiff, who was then employed as a police
officer in another town, received a letter from the DOJ notifying him that his
name was added to the EES on December 4, 2018 by both the police
department where he was currently employed and the police department where
he was formerly employed. Thereafter, the plaintiff filed a complaint in
superior court pursuant to RSA 105:13-d naming both police departments as
defendants. He later added the DOJ as a party as required by the statute. See
RSA 105:13-d, II(c).

The plaintiff subsequently moved for summary judgment “for a
determination and for injunctive relief that he should not be included on the
Exculpatory Evidence Schedule.” In his motion, the plaintiff argued that: (1)
neither his current nor his former police department submitted his name for
inclusion on the EES; (2) the 2014 circuit court order already determined that
the 2013 internal investigation “does not give rise to a disclosure obligation”;
and (3) he was not afforded adequate due process prior to being notified in
2021 that his name was added to the EES in 2018. The DOJ objected and
cross-moved for summary judgment. The trial court denied the plaintiff’s
motion and granted the DOJ’s cross-motion, concluding that its ruling was not
precluded by the 2014 circuit court order and that the plaintiff had received

1 See Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 777 (2015) (explaining that the

“Laurie List” arose from the “well-recognized proposition that, in a criminal case, the State is
obligated to disclose information favorable to the defendant that is material to either guilt or to
punishment”). See generally State v. Laurie, 139 N.H. 325 (1995).
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sufficient due process. The plaintiff moved for reconsideration, which the trial
court denied. This appeal followed.

When reviewing the trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 758
(2014). If our review of that evidence discloses no genuine issue of material
fact and if the moving party is entitled to judgment as a matter of law, we will
affirm the grant of summary judgment. Id. An issue of fact is material if it
affects the outcome of the litigation. Porter v. City of Manchester, 155 N.H.
149, 153 (2007). We review the trial court’s application of the law to the facts
de novo. Bovaird, 166 N.H. at 758.

RSA 105:13-d, I, provides that:

The [DOJ] may voluntarily maintain an [EES]. The [EES] shall
consist of a list of all current or former law enforcement officers
whose personnel information contain potentially exculpatory
evidence. Subject to the provisions of this section, the [EES] may be
maintained by the [DOJ] and shall be a public record subject to RSA
91-A.

We recently determined that, “within the context of RSA 105:13-d,
‘potentially exculpatory evidence’ is evidence, including impeachment evidence,
that is reasonably capable of being material to guilt or to punishment.” Doe v.
N.H. Attorney Gen. (Activity Logs), 176 N.H. ___, ___ (2024), 2024 N.H. 50, ¶18.
Although we noted that “the question of whether evidence is appropriate for
inclusion on the EES is separate from the question of whether that evidence
would be admissible in a criminal proceeding,” we explained that
“considerations made to determine the admissibility of evidence, such as the
age of the conduct and its materiality to an officer’s general credibility, should
factor into the determination of whether information in an officer’s personnel
file warrants his or her inclusion on the EES.” Id. at ___, 2024 N.H. 50, ¶20.
“If there is no reasonably foreseeable case in which ‘potentially exculpatory
evidence’ relating to an officer’s conduct would be admissible,” an officer’s
inclusion on the EES is not warranted. Id. at ___, 2024 N.H. 50, ¶20.

We first consider whether the court erred in denying the plaintiff’s
motion for summary judgment and determining that the plaintiff’s conduct
during the 2013 internal investigation is potentially exculpatory. The plaintiff
maintains that, although he was aware that a complaint had been made
against him, he truthfully told the investigator that he only learned of the
internal investigation when he “was formally apprised of it in writing.” The
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DOJ asserts that the plaintiff’s argument lacks merit because RSA 105:13-d
does not authorize de novo review of the conduct alleged in the internal
investigation, and there is no dispute of fact as to whether the plaintiff was
dishonest during the 2013 investigation.

To resolve this dispute, we must determine whether the internal
investigation report and accompanying documentation support a conclusion
that the plaintiff’s conduct is “potentially exculpatory,” RSA 105:13-d, I. At
issue are two letters sent on the same day — one advising the plaintiff that he
was the subject of an internal investigation, and the other notifying the
investigating officer that the plaintiff “heard the Chief was given a written
complaint” — and the plaintiff’s subsequent interview statements regarding
those letters. The plaintiff claims that, although he told the investigating
officer that he had spoken with another officer regarding the complaint, “he
was honest in answering that he only became aware of the investigation when
he was formally apprised of it in writing.”

We agree with the plaintiff that it is unclear whether the investigating
officer asked him when he first learned of the complaint or when he first
learned of the investigation. In the final report, the investigating officer stated
that he asked the plaintiff “when he first knew about this investigation.”
(Emphasis added.) Elsewhere in the report, however, the investigating officer
characterized the question differently, noting that, “[d]uring this response,
about when he first heard of this complaint, [the plaintiff] became uneasy
shifting in his seat and breaking eye contact.” (Emphasis added.) Without
knowing the question the plaintiff was asked, there is inadequate information
upon which to determine whether the plaintiff’s response was truthful.

In any event, we are not persuaded that, under the unique facts of this
case, any alleged untruthfulness regarding when the plaintiff first learned
about the complaint or investigation is sufficiently material to the plaintiff’s
credibility to merit placement on the EES. The investigating officer did not find
that the plaintiff’s interview responses were deliberately deceitful, and he made
no conclusion as to whether the plaintiff responded untruthfully regarding the
substance of the complaint that led to the investigation. The conduct at issue
here is distinguishable from cases in which we have determined that
information in an officer’s personnel file is potentially exculpatory. See Gantert
v. City of Rochester, 168 N.H. 640, 643, 650 (2016) (providing answers on
Lethality Assessment Protocol “that he knew he had no basis to believe were
true” reflected on plaintiff’s general credibility); State v. Laurie, 139 N.H. 325,
331 (1995) (evidence of detective’s long-demonstrated history of lies, deception,
and incompetency “plainly would have been useful to the defendant upon
cross-examination”). Here, although the plaintiff’s interview response reflects
his hesitation to reveal information he learned from outside the department, it
is not sufficiently relevant to his character for truthfulness to warrant his
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inclusion on the EES. See N.H. Attorney Gen. (Activity Logs), 176 N.H. at ___,
2024 N.H. 50, ¶¶ 18, 20 (noting that “materiality to an officer’s general
credibility . . . should factor into the determination of whether information in
an officer’s personnel file warrants his or her inclusion on the EES”).

For the foregoing reasons, we conclude that the trial court erred in
denying the plaintiff’s motion for summary judgment and granting the DOJ’s
cross-motion for summary judgment. Because the information in the plaintiff’s
personnel file relating to the 2013 internal investigation is not “potentially
exculpatory,” the plaintiff’s inclusion on the EES is not warranted. See RSA
105:13-d. In light of our decision, we need not address the parties’ remaining
arguments. See Dionne v. City of Manchester, 134 N.H. 225, 230 (1991)
(declining to address parties’ other remaining arguments when holding on one
issue is dispositive).

Reversed and remanded.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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