NEWPORT — Attorney for Claremont City Councilor Jonathan Stone said that a 2006 confidentiality agreement prohibits the city from publicly releasing the investigative findings related to Stone’s termination from the Claremont Police Department 14 years ago.
Peter Decato, attorney for Stone, appeared Thursday in Sullivan County Superior Court to seek an injunction against the City of Claremont releasing records of 11 investigative cases involving former police officer Jonathan Stone.
Stone’s termination from the department stemmed from investigative findings into four grievances against Stone in 2006, Decato acknowledged. However, a confidentiality agreement between the city and the Claremont police union stipulated that the city would purge Stone’s personnel file and no parties would speak to the press regarding the events, Stone’s attorney said.
“[It says] the city would purge Jonathan’s personnel file of all references to a one-day suspension, a March 27, 2006, notice of termination and importantly ‘all events leading up to them,’” Decato told Justice Brian Tucker. “And there’s other language that mirrors it, about all events leading up to the suspension and purging of the personnel file.”
Decato’s complaint responds to a Right-to-Know request filed in June by freelance journalist Damien Fisher. The request asked the city for copies of any investigative records into the conduct of Stone while serving as an officer and any written communication regarding Stone’s termination from the department. The Eagle Times has also filed a Right-to-Know request for these documents.
Last month, the city notified Fisher and Decato of records pertaining to 11 investigative cases of Stone during his tenure as a police officer. Decato filed for an injunction prior to the city releasing the documents.
Tucker questioned whether the 2006 arbitration agreement can hold precedent over the state Right to Know law.
Conditional language in the agreement “suggests that if disclosure is required under the Right to Know Act that you cannot rely on the settlement to prohibit disclosure,” Tucker said.
A central driver in this case is the New Hampshire Supreme Court’s ruling in May that overturned a 30-year precedent, which had previously exempted municipal employee personnel files from public disclosure. In overturning the precedent, the court declared that personnel records could potentially be released as public documents.
However, the Supreme Court did not clarify guidelines to help municipalities determine that line between information the public should know versus protecting an individual’s privacy.
In July the City of Claremont unsuccessfully attempted to solicit Tucker’s judgement regarding which documents to release or not. Tucker dismissed the case and instructed Claremont to fulfill the Right to Know request and advised parties to file a complaint over any documents of concern.
Decato said that he has not physically received the documents to review and therefore cannot yet specify which documents should be exempt.
“I’ve spoken to my client about those [grievances],” Decato told Tucker. “But it’s been 14 years. I know specifically at least one, that had to do with a controversy between the police chief and then-officer Stone. I don’t know what the other three might be.”
Decato said that he would need the city to allow him to view the records identified for potential release before he can specify documents of concern.
Additionally, Decato argued that the Supreme Court ruling in May should not apply retroactively to an arbitration agreement made 14 years earlier, at a time when the records in question were exempt from public release.
City Attorney Shawn Tanguay said that the city would be willing to share those documents once conditions were met to legally protect the city from a potential lawsuit. Those conditions include the court first determining that the Right to Know request takes precedence over the 2006 agreement and then the issuance of a protective order permitting the city to show Decato the documents.
Tucker granted Decato until Oct. 1 to submit evidence of a historical precedent which exempted a prior agreement from complying to later legal rulings and gave Tanguay until Oct. 12 to issue a response to that submission.