From Doe v. Town of Lisbon, decided Thursday by Judge Joseph Laplante (D.N.H.):
Through this lawsuit, the plaintiff—a former police officer for the Town of Lisbon—seeks removal from New Hampshire's "Exculpatory Evidence Schedule." Broadly speaking, the EES is "a list of police officers who have engaged in misconduct reflecting negatively on their credibility or trustworthiness." The New Hampshire Department of Justice maintains the EES and, subject to the provisions of a recently enacted New Hampshire statute … the EES "shall be a public record" under New Hampshire's right-to-know laws. The NHDOJ publishes the EES on its website.
If an officer files a timely challenge to his or her placement on the EES, however, the officer's name and corresponding information will be non-public and not subject to disclosure under the right-to-know law until the challenge is complete and all appeals are exhausted. If the officer's challenge is successful, his or her name and corresponding information will remain non-public. See generally RSA 105:13-d. As a result, on the current EES, officers with pending challenges have their names and corresponding information (such as the reporting police department, date of incident, date of notification, and category of infraction), as well as their case information, redacted. If the officer loses his challenge to placement on the EES, his name and corresponding information are made public. It is unclear from the statute, the parties' submissions, and other publicly available information whether the NHDOJ maintains an unredacted version of the EES (including the names and information of officers with pending challenges) and if so, who has access to it within the agency.
The plaintiff initially sued the Town in New Hampshire Superior Court, but after the Town timely and properly removed the case to this court, the plaintiff amended his complaint to add the NHDOJ as a defendant. The plaintiff contends that the Town lacked a factual basis to place him on the EES, violated his procedural and substantive due process rights when investigating the underlying conduct that led to his placement on the EES, and, even if the factual findings that led to his placement on the EES were sustained, his alleged behavior was not potentially exculpatory and did not justify placement on the EES.
Following the NHDOJ's motion to dismiss, the plaintiff's motion for voluntary dismissal, a potential consolidation order, and oral argument on these preliminary motions and issues, the parties filed a stipulation addressing how they wished to proceed. The court approved the stipulation, effectuating remand of all claims against the NHDOJ and certain claims for injunctive relief against the Town, as well as consolidation with the plaintiff's related case.
After remand, the following claims for damages against the Town remain before this court: (1) violation of the plaintiff's procedural due process rights under the United States Constitution and New Hampshire Constitution; (2) violation of his substantive due process rights under both constitutions; and (3) "libel, slander, and damage to reputation" and an award of attorneys' fees. {The aspects of the procedural and substantive due process claims seeking injunctive relief against the Town and NHDOJ have been remanded to state court by agreement of the parties.}
The parties agreed to allow the plaintiff to proceed pseudonymously, both in state court and in this court. While Grafton County Superior Court Judge MacLeod granted the plaintiff's motion to seal the docket and all pleadings in the state court matter, the state court record is not sealed on this court's docket. Nor is this court's docket or any of the operative pleadings sealed. The only document that is currently sealed is a prior version of a complaint that inadvertently included the plaintiff's last name on one page….
Because, as noted above, the sealed records in this case are limited to one document, the heart of Professor Volokh's request is his opposition to pseudonymity. Professor Volokh opposes continued pseudonymous litigation based on the presumption of open court records and his common law and First Amendment rights of access to court records.
