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Police cannot withhold public records without explanation

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NEWS MEDIA UPDATE   ·   NEW HAMPSHIRE   ·   Freedom of Information   ·   Jan. 5, 2007

NEWS MEDIA UPDATE   ·   NEW HAMPSHIRE   ·   Freedom of Information   ·   Jan. 5, 2007


Police cannot withhold public records without explanation

  • The state Supreme Court says the public records law requires police to give a reason before exempting police investigatory records.

Jan. 5, 2007  ·   Law enforcement records cannot be shielded from a public records request as a part of an ongoing investigation by police without further justification, according to a written ruling the New Hampshire Supreme Court released on Dec. 20.

The court unanimously agreed to throw out a trial judge’s earlier decision upholding the denial of a records request under the state’s Right-to-Know Law. Several law enforcement agencies had asserted that the requested information was included in police investigative files and therefore exempt from public records laws.

The case stemmed from the disappearance of 23-year-old Maura Murray following a single-car accident in New Hampshire in February 2004. Local police arrived at the scene of the accident and found no sign of the young woman. Subsequent searches turned up nothing as well. Murray remains missing to this day.

After the accident and for the next two years, Murray’s father, Frederick, attempted to obtain records and any other information from law enforcement into the circumstances surrounding Maura’s accident and the efforts of police to find her. Despite multiple requests to various investigating agencies, no information was turned over.

Acting on behalf of the law enforcement agencies, New Hampshire Attorney General Kelly Ayotte released only a single-page document listing broad categories of information withheld because of the records’ existence within investigative files and suggesting that disclosure could interfere with enforcement proceedings.

The trial court upheld the denial in January 2006, but the high court found Ayotte’s blanket refusal insufficient.

“[The state’s] categories do not meet the requirements of the Right-to-Know Law,” Justice Richard Galway wrote in the majority opinion. “The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.”

Massachusetts attorney Tim Ervin, who represents Frederick Murray, said that while no records were actually released by the Supreme Court, the court’s opinion puts the onus squarely back on law enforcement and the attorney general’s office to explain their actions.

“This is a reaffirmation that the burden is on the state and not us to show that the exemption somehow applies,” Ervin said.

The case has been sent back to the trial court for another hearing, with directions from the Supreme Court requiring the government agencies to specifically show how disclosure of these records could somehow interfere with an ongoing investigation.

Ervin said that while no date has been set yet for the next hearing, his client will keep fighting to get more information about his missing daughter.

“We are going to continue to battle this,” Ervin said.

(Murray v. New Hampshire Division of State Police, Special Investigation Unit, Requester’s Counsel: Timothy J. Ervin, Gallant & Ervin LLC, Chelmsford, Mass.)LC

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