2025 N.H. 48, Doe v. Concord Police Department & a.

Department of Justice. F. Chase on the memorandum of law), for defendant New Hampshire general (Samuel R.V. Garland, senior assistant attorney general, and Brandon John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

memorandum of law), for defendant City of Concord Police Department. City Solicitor’s Office, of Concord (Danielle L. Pacik, city solicitor, on the

for the plaintiff. Krupski & Beaudoin, PLLC, of Concord (Marc G. Beaudoin on the brief),

Citation: Doe v. Concord Police Department & a., 2025 N.H. 4 8 Case No. 2024 - 0180 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

was at the hospital. Upon learning what the plaintiff had told her supervisors, missing that the plaintiff did not notice that her firearm was missing until she station. The plaintiff’s partner, however, told the officer whose firearm was and that another officer retrie ved the firearm for her while she was still at the realized she had forgotten her firearm while she was still at the police station sergeant and a lieutenant about the incident. She maintained that she first [¶4] Upon returning to the police station, the plaintiff spoke with the

inadvertently taken the wrong firearm. retrieve it for her. The plaintiff told the serge ant that the officer must have while she was still at the police station, and she asked another officer to sergeant, the plaintiff told him that she realized she had forgotten her firearm confirmed that the plaintiff had the other officer’s firearm. According to the asked her for the serial number of the firearm in her possession. The sergeant Concord police sergeant called the plaintiff, who was still at the hospital, and [¶3] The officer reported her missing firearm to her supervisors. A

commander’s office. opened only with an individual key or with a master key kept in the watch but had left to transport a prisoner to a lo cal hospital. Each locker could be who was also a Concord police officer, had recently been in the booking area only one other locker was closed and locked. She recalled that the plaintiff, at the police station. The officer had the key to her locker, and she noticed that police officer discovered that her firearm was missing from the firearms lockers judgment order or are otherwise established by the record. In p. 2 2013, a Concord [¶2] The following facts are taken from the trial court’s summary

information pertaining to her misconduct would be admissible. We affirm. p. 2 2024 N.H. 50, because there is no reasonably foreseeable case in which Doe v. New Hampshire Attorney General (Activity Logs), 176 N.H. 806 (2024), should be reversed and the case remanded following this court’s decision in personnel file. Alternatively, she argues that the summary judgment order to the mis conduct and termination of her employment were removed from her immaterial to the mis conduct being investigated; and (2) the records pertaining the defendants’ motion because: (1) her “alleged misstatement of fact” was 105:1 p. 3 3 - d (2023). On appeal, she argues that the trial court erred by granting her name be removed from the Exculpatory Evidence Schedule (EES). S ee RSA Concord (City) Police Department. The plaintiff sought an order requiring that Hampshire Department of Justice (DOJ) and joined by defendant City of (Tucker, J.) granting a motion for summary judgment filed by defendant New [¶1] The plaintiff, Jane Doe, appeals an order of the Superior Court DONOVAN, J. 3

negotiated resignation.” traini ng council that the plaintiff’s “departure from the police department was a investigative file.” The City also agreed to notify the police standards and plaintiff’s personnel file and maintain those documents “in a separate firearm incident and termination of the plaintiff’s employment from the included a provision requiring the City to remove documents relating to the wrongful termination. The parties reached a settlement agreement, which superior court alleging, among other things, gender discrimination and [¶8] The plaintiff subsequently filed a complaint against the City in

found that the plaintiff lacked credibility and upheld the decision. termination decision to the City’s Personnel Appeals Board (PAB), which also Justice, 17 p. 3 3 N.H. 648, 651 (2020); RSA 105:13 - d, I. The plaintiff appealed the renamed as the EES, s ee N.H. Ctr. for Pub. Interest Journalism v. N.H. Dep’t of “Laurie List,” see State v. Laurie, 139 N.H. 325 (1995), which was subsequently and county attorneys submitting the plaintiff’s name for inclusion on the the plaintiff ’s employment. The chief also sent a letter to the C ity prosecutor [¶7] The police chief sustained the allegations, and the City terminated

sergeant. lieutenant that were inconsistent with the statement she provided to the the sergeant about the incident when she had; and (4) offered facts to another investigation”; ( p. 3 3) falsely stated that she had not spoken to the lieutenant and “failed to answer questions truthfully to her superior officers during the supervisors about when she first knew that she had forgotten her firearm; (2) T hey recommended finding that the plaintiff: (1) lied to a colleague and her [¶6] The investigators recommended that the allegations be sustained.

to skirt dete c tion.” up the facts” and that she “circumvent[ed] the chain of command. . . in order reported the incident the way it transpired but went to great lengths to cover They further determined that the plaintiff “had ample opportunities to have have been in trouble if she properly reported this to the on - duty supervisor.” that [the plaintiff was] lying about this incident because she believed she would that her statements lacked credibility. They concluded that it was “more likely the plaintiff struggled to answer specific questions during the investigation and mistaken or confused” in remembering otherwise. The i nvestigators found that she realized that she forgot her firearm while at the hospital and that “he was plaintiff claimed that, when the sergeant first contacted her, she told him that conversations with her colleague and supervisors regarding the firearm. The investigation into the allegation that the plaintiff was untruthful during her [¶5] The Concord Police Department opened an internal affairs

lied about when she realized that she had forgot ten her firearm. the officer then informed the sergeant and the lieutenant that the plaintiff had p. 4 4

officer’s name should be included on the EES. forth the standard applicable to determining whether a law enforcement certificatio n.” RSA 106 - L:5, III - V, XXV (2023). RSA chapter 106 - L does not set disciplinary hearings, and impose “sanctions on a law enforcement officer’s qualified under the provisions of this chapter to be police officers,” conduct standards for employment as a police officer,” “[c]ertify persons as being may, among other things, “[e]stablish minimum educational and training chapter 106 - L pertains to the police standards and training council, which 106 - L:2 (2023) (enumerating definitions applicable “[i]n this chapter”). RSA plaintiff relies applies only to proceedings under RSA chapter 106 - L. See RSA RSA 105:13 - d. We agree with the defendants. The definition upon which the RSA chapter 106 - L is inapplicable in this case, which is instead governed by [¶12] The defendants assert that the definition of misconduct set forth in

in the lockbox at the police station” is “immaterial to any policy violation.” maintains that the moment at which she “first realized that she left her firearm standards and training council” (emphasis added)). More specifically, she investigation, or an investigation conducted by the New Hampshire police civil, administrative, or criminal proceeding, in a po lice report, an internal credibility, including but not limited to” a “deliberate and material lie during a engaged in conduct negatively reflecting on the officer’s trustworthiness or (defining “misconduct” as, inter alia, a “sustained finding that the officer has misconduct as defined by RSA chapter 106 - L. See RSA 106 - L:2, V (2023) immaterial to the internal investigation and therefore does not constitute [¶11] The plaintiff first argues that her “alleged misstatement of fact” was

application of the law to the facts de novo. Id. the grant of summary judgment is proper. Id. We review the trial court’s material fact, and if the moving party is entitled to judgment as a matter of law, Guertin High Sch., 176 N.H. 131, 135 (2023). If there is no genuine issue of from them, in the light most favorable to the non - moving party. Troy v. Bishop consider the affidavits and other evidence, and all inferences properly drawn [¶10] When reviewing a trial court’s grant of summary judgment, we

This appeal followed. defendants’ motion. The plaintiff unsuccessfully moved for reconsideration. summary judgment, which the City joined. The trial court granted th e serve little purpose given the passage of time. The DOJ filed a motion for is not potentially exculpatory,” and that keeping her name on the list would recommending her name for inclusion on the list, that “the underlying conduct EES pursuant to RSA 10 p. 5 5:13 - d. She argued that the City erred in the City and the DOJ as defendants, seeking the removal of her name from the [¶9] Years later, the plaintiff filed a complaint in superior court, naming 5

without a firearm than it is to discover being unarmed before leaving the police station. that it is a more egregious breach of policy for an officer to tra nsport a prisoner to a hospital plaintiff’s realization that she had forgotten her firearm is immaterial. The record establishes Even if RSA chapter 106 - L were controlling here, we could not agree that the timing of the 1

Interest Journalism, the legislature enacted RSA 10 p. 5 5:13 - d, which, as we have [¶17] Shortly after our decision in New Hampshire Center for Public

stated.” N.H. Ctr. for Pub. Interest Journalism, 173 N.H. at 6 p. 5 56. personnel information, regardless of where it is maintained, it would have so “[h]ad the legislature intended RSA 105:13 - b to apply more broadly to in any criminal case shall be disclosed to the defendant.”). We explained that evidence in a police personnel file of a police officer who is serving as a witness Journalism, 173 N.H. at 656; see RSA 105:13 - b, I (2023) (“Exculpatory personnel file of a specific police officer.” N.H. Ctr. for Pub. Interest “[t]he express focus of RSA 105:13 - b is on information maintained in the Journalism, we examined the language of RSA 105:13 - b and observed that information,” RSA 105:13 - d, I. In New Hampshire Center for Public Interest her “personnel file” with the absence of those documents from her “personnel [¶16] The plaintiff’s argument equates the removal of documents from

We are not persuaded. “name should no longer be included on the EES pursuant to RSA 10 p. 5 5:13 - d, I.” “the alleged misconduct is no longer in [her] official police personnel file,” her a negotiated settlement agreement with the City. She reasons that because removed from her personnel file and maintained in a s eparate file pursuant to pertaining to her misconduct and the termination of her employment were summary judgment in favor of the defendants because the documents [¶15] The plaintiff next argues that the trial court erred by granting

arguments regarding her placement on the EES. applied the proper standard, RSA 10 p. 5 5:13 - d, in addressing the plaintiff’s is appropriate pursuant to RSA 105:13 - d. We conclude that the trial court 1 inapplicable to the determination of whether an officer’s placement on the EES [¶14] Therefore, the definition of misconduct set forth in RSA 106 - L:2 is

statutory section, RSA 10 p. 5 5:13 - b. See RSA 10 p. 6 6 - L:22 (2023). exculpatory materials” in a criminal proceeding is governed by a separate 106 - L acknowledges that a prosecutor’s duty to disclose “potentially may constitute “potentially exculpatory evidence.” Id. Moreover, RSA chapter definitions set forth in RSA chapter 106 - L, nor does it identify what conduct potentially exculpatory evidence.”). RSA 105:13 - d does not refer to the or former law enforcement officers whose personnel information contain 105:13 - d. See RSA 105:13 - d, I (“The [EES] shall consist of a list of all current [¶13] That standard, as the defendants observe, is set forth in RSA 6

even if the allegations of “excessive use of force” against the plaintiffs were true, Duchesne v. Hillsborough County Attorney, for example, we determined that Laurie List jurisprudence. S ee id. at 815 - 1 p. 6 6, 2024 N.H. 50, ¶¶21 - 22. In (Activity Logs). Our explanation in Doe (Activity Logs) was informed by our [¶21] We take this opportunity to clarify the standard set forth in Doe

would be inappropriate.” Id. factor weighing on the conduct’s relevance, an officer’s i nclusion on the EES be admissible, due to the passage of a significant length of time or some other which ‘potentially exculpatory evidence’ relating to an officer’s conduct would 50, ¶20. W e further stated that “[i] f there is no reasonably foreseeable case in or her inclusion on the EES.” Doe (Activity Logs), 17 p. 6 6 N.H. at 815, 2024 N.H. determination of whether information in an officer’s personnel fi le warrants his materiality to an officer’s general credibility, should factor into the determine the admissibility of evidence, such as the age of the conduct and its [¶20] In Doe (Activity Logs), w e explained that “considerations made to

This readin g, however, misapprehends Doe (Activity Logs). unlikely that he or she will be called as a witness at a future criminal case. officer’s inclusion on the EES would be inappropriate simply because it is The plaintiff reads Doe (Activity Logs) as standing for the proposition that an on the EES “would serve no purpose other than to publicly embarra ss her.” former police officer for a criminal case is essentially zero,” and her placement more than 10 years, “[t]he likelihood that [she] would be required to testify as a plaintiff asserts that because she is retired and has not been a police officer for would be a witness.” Relying upon our decision in Doe (Activity Logs), the the EES because “there are no reasonably foreseeable criminal case s where she [¶19] Finally, the plaintiff argues that her name should be removed from

information for purposes of the EES.” See RSA 105:13 - d, I. files,” we agree with the trial court that they nonetheless constitute “personnel these documents are no longer kept in the plaintiff’s “permanent personnel and Human Resources Department in a s eparate investigative file.” Although the incident” must be “maintained solely by the Concord Police Department and the City, the documents relating to the “incident and/or investigation into [¶18] Here, pursuant to the settlement agreement between the plaintiff

disclosure.” Doe (Activity Logs), 1 p. 7 7 p. 6 6 N.H. at 811, 2024 N.H. 50, ¶10. identify information about police officers . . . that is subject to possible consistent with the purpose of the EES, which i s used by the State as “a tool to N.H. Ctr. for Pub. Interest Journalism, 173 N.H. at 656. This conclusion is apply to a broader category of files kept by law enforcement agencies. See id.; “personnel information” evidences the legislature’s intent for RSA 105:13 - d to exculpatory evidence.” RSA 105:13 - d, I (emphasis added). The language law enforcement officers whose personnel information contain potentially noted, provides that “[t]he [EES] shall consist of a list of all current or former 7

21 (concluding that removal from EES was warranted because “nothing in the Police Dep’t (Off - duty Speeding), 1 p. 7 77 N.H. 20, 27 (2024), 2024 N.H. 54, ¶¶20 - “excessive use of force.” See Duchesne, 167 N.H. at 784; cf. Doe v. Salem untruthful statements, is dissimilar to the underlying conduct in Duchesne, [¶24] We note that the underlying conduct in this case, the plaintiff’s

Doe (Activity Logs), 1 p. 7 76 N.H. at 815, 2024 N.H. 50, ¶20. that maintaining the plaintiff’s name on the EES would be inappropriate. See called as a witness. See N.H. R. Ev. 608(b). Therefore, we cannot conclude her credibility if, in the future, there arises a criminal case at which she is plaintiff lied to her colleagues and supervisors could be admissible to impeach plaintiff was found to have been untruthful. The sustained findings that the admissible. See id. There is no dispute that, after multiple proceedings, the foreseeable case in which evidence of the plaintiff’s misconduct would be [¶23] In this case, we cannot conclude that there is no reasonably

the officer would be called as a witness. courts to assess the likelihood that a criminal case would be brought at which plaintiff’s interpretation of Doe (Activity Logs), this standard does not require D oe (Activity Logs), 1 p. 7 76 N.H. at 815, 2024 N.H. 50, ¶ 20. Contrary to the a future case, then the officer’s inclusion on the EES would be inappropriate. officer’s prior m is conduct would be admissible if he or she is called to testify in N.H. at 815, 2024 N.H. 50, ¶20. I f it is not reasonably foreseeable that an defendant in any case in which the officer may testify”); Doe (Activity Logs), 176 basis for automatically disclosing the information to the trial court or the the propriety of maintaining the officer’s name on a list that is used as the admissible. Id. at 784 (recognizing that admissibility “has a strong bearing on reasonably foreseeable that evidence of the plaintiff’s misconduct would be inquiry in this context is whether, assuming “a future case were to arise,” it is [¶22] G uided by Doe (Activity Logs), Duchesne, and Laurie, the proper

prosecutor’s legal and ethical responsibility.” Id. at p. 7 7 p. 8 83 - 84. name on a list to be disclosed to the court “makes sense and upholds the been admissible in any case in which [he] testified,” maintaining the officer’s of [the officer’s] general credibility as a witness, and, as such, would likely have we observed that in Laurie, where “the adverse information . . . was probative propriety of maintaining the officer’s name on” the Laurie List. Id. By contrast, admissible to attack the officer’s general credibility has a strong bearing on the information regarding a police officer’s background is not of the type usually (e mphasis added). We therefore concluded that “t he fact that adverse admissible simply to show [their] propensity to engage in such conduct.” Id. were to arise” involving the plaintiffs’ conduct, “the prior incident would not be Attorney, 167 N.H. 774, 784 (2015). We explained that “even if a future case to impeach the plaintiffs’ general credibility. Duchesne v. Hillsborough County evidence that [they] lied or misrepresented the facts) would not be admissible” evidence of th at alleged misconduct, “without something more (such as 8

M AC DONALD, C.J.