John Doe v. Town of Hanover Police Department & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0456, John Doe v. Town of Hanover Police
Department & a., the court on January 16, 2025, 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 (MacLeod, J.)
granting the motion to dismiss filed by defendant New Hampshire Attorney
General’s Office (AGO) and joined by defendant Town of Hanover Police
Department (HPD). The plaintiff sought a declaratory judgment and an
injunction to remove his name from the Exculpatory Evidence Schedule (EES),
asserting that the findings that led to his placement on the EES were
“misinterpreted, taken out of context, and/or not serious enough to warrant
his name’s inclusion on the EES.” See RSA 105:13-d (2023). The trial court
concluded that the plaintiff’s personnel file contains information that is
potentially exculpatory, that his inclusion on the list was warranted, and that
HPD had afforded him sufficient due process before it placed him on the EES.
The trial court therefore dismissed the complaint. We reverse and remand.

I. Background

The following facts are derived from the plaintiff’s complaint and
accompanying documentation and are assumed to be true for the purposes of
this appeal. See Boucher v. Town of Moultonborough, 176 N.H. 271, 272
(2023).

In 2017, the plaintiff was hired by HPD as a police officer. In 2019, the
plaintiff applied for a position at the Police Standards and Training Council
(PSTC). The plaintiff thereafter received a phone call from an individual who
advised the plaintiff not to apply for the position, and that if the plaintiff did
apply, the individual would report financial misconduct that he asserted the
plaintiff had engaged in when the plaintiff was employed by another police
department in the state. The plaintiff did not withdraw his application, and the
individual contacted the New Hampshire Department of Safety to report his
concern about the plaintiff. The matter was then referred to the AGO to
investigate. In April 2020, the AGO advised the HPD Chief that it had
completed its investigation and that it would not be bringing charges against
the plaintiff. The AGO informed the HPD Chief that it had determined that it
could not sustain its burden of proving a criminal charge, in part because it
could not prove that the plaintiff had acted with the requisite criminal intent.

Thereafter, HPD contracted with Municipal Resources, Inc. (MRI) to
complete an internal investigation into the allegation. In June 2020, MRI
issued a detailed report exploring issues relating to the alleged criminal
wrongdoing. The report also addressed events surrounding two polygraph
examinations of the plaintiff in 2005 and 2007 that were conducted when the
plaintiff first applied for positions at the PSTC, and examined whether the
plaintiff had withheld or failed to fully disclose information when he applied to
HPD in 2017. The MRI report concluded that “any administrative issue against
[the plaintiff] regarding [the alleged criminal offense] is NOT SUSTAINED.”
However, the MRI report concluded that the plaintiff should be placed on the
EES because the 2005 and 2007 polygraph reports “could be considered
exculpatory evidence as they may impact [the plaintiff’s] credibility.” The MRI
report also concluded that the plaintiff’s “failure to fully disclose information in
his background, may have affected [the HPD Chief’s] hiring decision and
violated” certain provisions in the HPD questionnaires the plaintiff completed
during the hiring process.

On August 26, 2020, the HPD Chief met with the plaintiff and his
attorney so that the plaintiff could provide the Chief with information to
consider before making a final decision about whether the plaintiff should be
placed on the EES. Following the meeting, the plaintiff submitted a letter of
resignation, effective September 1, 2020. On September 16, 2020, the Chief
informed the plaintiff that he believed that he was “legally required” to submit
the plaintiff’s name for inclusion on the EES. At the time the plaintiff’s name
was added to the list, the AGO did not disclose personal identifying information
on the EES. See N.H. Ctr. for Pub. Interest Journalism v. Dep’t of Justice, 173
N.H. 648, 654 (2020).

On October 30, 2020, we held that the EES “is neither ‘confidential’
under RSA 105:13-b nor exempt from disclosure under the Right-to-Know Law
as an ‘internal personnel practice’ or a ‘personnel file.’” Id. A year later, the
legislature enacted RSA 105:13-d, permitting the maintenance of a state-wide
EES and permitting officers to file a lawsuit challenging their placement on the
EES. RSA 105:13-d. The statute provides that an officer’s name and
corresponding information on the EES will become public unless “a court
issues an order finding that the underlying misconduct is not potentially
exculpatory” or “[a] court issues an order finding that the law enforcement
agency erred in recommending that the officer be placed on the [EES].” RSA
105:13-d, II(d)(1)-(2).

On December 22, 2021, the plaintiff filed a complaint challenging his
placement on the EES. The plaintiff asserted that he was entitled to a de novo
hearing on the underlying facts and circumstances that were relied upon in

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determining that his name should be included on the EES, and that after a full
hearing on the merits, the trial court should order the plaintiff’s name removed
from the EES. He further argued that RSA 105:13-d and due process require
that he be provided with “an opportunity to be heard by the Superior Court in
order to determine if there is sufficient cause for an officer’s name to be
included on the EES.” The complaint makes clear that the plaintiff does not
agree that he deliberately lied or intentionally withheld information. The
defendants moved to dismiss the complaint, arguing that RSA 105:13-d does
not provide for a de novo hearing on the underlying investigation, that the
plaintiff’s placement on the EES was proper, that his name should remain on
the list, and that he received adequate due process. The trial court granted the
motion to dismiss after ruling that RSA 105:13-d does not provide the plaintiff
a right to a de novo hearing; that even if it did, “the undisputed facts in this
case show that the HPD was warranted in recommending that the [plaintiff] be
placed on the EES”; and that the plaintiff’s due process rights were not
violated. The plaintiff unsuccessfully moved for reconsideration. This appeal
followed.

II. Analysis

In reviewing an order granting a motion to dismiss, we assume the truth
of the facts as alleged in the plaintiff’s pleadings, and construe all reasonable
inferences in the light most favorable to the plaintiff. Boucher, 176 N.H. at
273. The standard of review in considering a motion to dismiss is whether the
plaintiff’s allegations are reasonably susceptible of a construction that would
permit recovery. Id. This threshold inquiry involves testing the facts alleged in
the pleadings against the applicable law. Id. The trial court may also consider
documents attached to the plaintiff’s pleadings; documents, the authenticity of
which is not disputed by the parties; official public records; and documents
sufficiently referred to in the complaint. Id. at 273-74. We will uphold the
granting of a motion to dismiss if the facts pled do not constitute a basis for
legal relief. Id. at 274.

RSA 105:13-d requires a court to balance two competing interests. See
Doe v. N.H. Attorney Gen. (Activity Logs), 176 N.H. 806, 813-14 (2024), 2024
N.H. 50, ¶17. On one side is the interest of prosecutors in meeting their
obligations under Brady v. Maryland to disclose information to a criminal
defendant that is material either to guilt or to punishment. Id.; Duchesne v.
Hillsborough County Attorney, 167 N.H 774, 777 (2015); Brady v. Maryland, 373 U.S. 83, 87 (1963). The list is a means of sharing information about officer
misconduct to facilitate prosecutors’ compliance with this constitutional
obligation to disclose. See Doe v. Town of Lisbon, 78 F.4th 38, 42 (1st Cir.
2023). On the other side is the interest of officers in protecting their
reputations. See Duchesne, 167 N.H at 782-83. As a consequence of the fact
that the list is public, an officer’s inclusion on the list “is a form of official
public branding by the state,” and “[t]he effects of such an official public

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branding on one wishing to work as a police officer are likely to be immediate
and concrete.” Town of Lisbon, 78 F.4th at 47. “To accommodate the
competing interests at stake, basic fairness demands that courts not invariably
defer to the judgment of prosecutors with respect even to the threshold issue of
what kind of adverse information should result in an officer’s placement on [the
EES].” Doe v. N.H. Attorney Gen. (Activity Logs), 176 N.H. at 814, 2024 N.H.
50, ¶17 (quotation omitted).

We recently held 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.” Id. at 814,
2024 N.H. 50, ¶18 (emphasis added). As the trial court noted, the rule
requiring disclosure applies to impeachment evidence because “[t]he jury’s
estimate of the truthfulness and reliability of a given witness may well be
determinative of guilt or innocence, and it is upon such subtle factors as the
possible interest of the witness in testifying falsely that a defendant’s life or
liberty may depend.” State v. Laurie, 139 N.H. 325, 327 (1995) (quotation
omitted). In Doe v. N.H. Attorney General (Activity Logs), we stated that we
“agree[d] with the plaintiffs 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.” Doe, 176 N.H. at 815, 2024 N.H. 50, ¶20 (emphasis added). We stated
that “in any particular case, factors such as the nature and age of the conduct
are relevant for the purpose of determining whether information in a personnel
file pertaining to an officer is exculpatory and thus subject to Brady
disclosures.” Id. at 816, 2024 N.H. 50, ¶22. “If there is no reasonably
foreseeable case in which ‘potentially exculpatory evidence’ relating to an
officer’s conduct would be admissible, due to the passage of a significant length
of time or some other factor weighing on the conduct’s relevance, an officer’s
inclusion on the EES would be inappropriate.” Id. at 815, 2024 N.H. 50, ¶20.

The plaintiff disputes that the nature of his conduct justifies his
inclusion on the EES. He asserts in his complaint that he has never agreed
with the contents of the file, and that he did not “deliberately” lie or make
“intentional misstatements of facts.” As in Doe v. N.H. Attorney General
(Activity Logs), we are unable to determine from the limited record before us
whether the plaintiff’s conduct is “potentially exculpatory” under RSA 105:13-
d. Accordingly, we conclude that the trial court erred in dismissing the
plaintiff’s complaint, and reverse and remand for further proceedings

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consistent with this order and our decision in Doe v. N.H. Attorney General
(Activity Logs).

Reversed and remanded.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.

Timothy A. Gudas,
Clerk

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