Kenyon: Former officer’s lawsuit could reshape NH records access

By JIM KENYON

Valley News Columnist

Published: 11-19-2023 3:26 AM

State Rep. Jonathan Stone isn’t the only one who has a great deal riding on the outcome of his lawsuit against the city of Claremont, which the New Hampshire Supreme Court heard last week.

The public does as well.

Stone, a Republican who was elected to the New Hampshire House last year, has waged a lengthy legal battle to keep his disciplinary records from his six years as a Claremont cop in the early 2000s out of public view.

If the state’s highest court sides with Stone, other New Hampshire law enforcement officers who have made deals to keep their employment files hush-hush can also breathe a sigh of relief. Their secrets will remain safe too.

On the other hand, if the justices decide Stone’s disciplinary records are subject to the state’s public records law, the public wins. It won’t be as easy for government officials to keep taxpayers in the dark about the inner workings of police departments.

“It’s a consequential case,” said Gilles Bissonnette, legal director for the American Civil Liberties Union of New Hampshire, who argued Tuesday’s case before the state’s highest court. “Who knows how many other agreements like this that are out there. I don’t doubt that there are others.”

In 2007, Stone reached an agreement with the city that allowed for his “negotiated resignation.” In exchange for Stone going away (at least, from the police department), the city agreed to purge his personnel file’s disciplinary records.

Stone’s attorney, Peter Decato, of Lebanon, told the justices that since both sides signed off on the “confidentiality of the agreement” nearly 17 years ago, it should continue to be enforced.

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In a phone interview later, Decato pointed out it was the city that initially proposed the 2007 deal. Claremont officials recognized that some — if not, a majority — of the 30 witnesses prepared to testify during an arbitration hearing were in Stone’s corner, Decato said.

The public, however, wasn’t a “party to this contract,” in which the intent was to “limit public access,” Bissonnette reminded the justices.

In a phone interview following the hearing, Bissonnette added, “you can’t have agreements that are designed to circumvent the public records law.”

For a decade, the agreement — and the confidentiality surrounding it — drew little attention.

Then Stone entered politics.

In 2017, he won an open seat on the Claremont City Council. In the city’s following two Ward 3 contests, he ran unopposed before first-time candidate Jonathan Hayden, an organic vegetable farmer, eked out a 247-241 victory in the Nov. 7 election.

Stone, a strong supporter of Donald Trump in the past, is up for re-election in the House next year.

At Tuesday’s Supreme Court hearing, Associate Justice James Bassett asked if the fact that Stone held public office made a difference.

“It magnifies the public interest,” Bissonnette responded.

It’s fair to say the case wouldn’t have reached the Supreme Court, if not for a change in state rules governing public access to some police records.

In May 2020, the Supreme Court issued two decisions that unlocked records pertaining to alleged police misconduct and internal affairs investigations.

For years, thanks to 1993 Supreme Court decision, cops faced little in the way of public scrutiny. Government officials used what was known as the Fennigan decision, which involved a Dover police officer accused of making harassing phone calls, to keep internal investigations confidential.

Following the 2020 opinions, New Hampshire freelance reporter Damien Fisher asked Claremont officials for Stone’s disciplinary records under the state’s right-to-know law. A similar request was later made by the The New Hampshire Union Leader, which along with the city, had an attorney at Tuesday’s hearing.

Stone, 50, had been under the assumption that the records no longer existed since his 2007 agreement with the city called for his personnel file to be “purged,” Decato said. The city, however, decided to hold onto the records in “another file,” for reasons that aren’t clear, he said.

Stone’s best hope is that justices determine the contract he entered into in 2007 trumps the 2020 opinions expanding public access to police records.

“That’s what is colliding here,” Decato told me.

As Decato stressed to the court, “it’s a retrospective law, and my client is caught in that trap.”

Stone, who didn’t respond to my email request for comment, wasn’t in the courtroom Tuesday, opting to stay in Claremont for a recount vote of his council race that was going on at the same time. (The recount reaffirmed his six-vote loss.)

From watching the 30-minute Supreme Court hearing, I got the feeling that of the four judges who heard the case, Associate Justice Anna Barbara Hantz Marconi was the most likely to side with Stone.

In 2007, the “parties didn’t contemplate what they understood to be confidential was going to change,” she remarked during Bissonnette’s oral argument.

Bissonnette countered that the a-deal-is-a-deal argument doesn’t hold up in Stone’s case. The 2007 contract didn’t provide “blanket confidentiality,” he maintained. A provision in the contract “recognizes that laws can change and evolve over time,” he added.

When we talked later, Bissonnette said secret agreements such as the one between Stone and the city are about “depriving the public of information. It’s not something that should be rewarded.”

“Almost all the records pertain to (Stone’s) on-duty conduct,” he added. “The documents go to the core how how he performed his police duties.”

The Supreme Court’s decision probably won’t come for several months.

The suit, which Stone filed three years ago, has already cost the city more than $70,000 in legal fees.

Depending on which way the court goes, the cost to the public could ultimately run much higher.

Jim Kenyon can be reached at jkenyon@vnews.com.