Right to Know NH will meet on Saturday, August 15, 2020 @ 9 AM by conference call. We will discuss ideas for Right to Know (RSA 91-A) bills for the upcoming 2021 legislative session. The public is welcome to join us. If you’d like to join us, click on “Send us a message” under CONTACT US to the right and ask for the phone number to call.
The following article was authored by Wanda Duryea and Beatrice Coulter – Advocates for Ethical Mental Health Treatment.
We are currently watching a nation reject the status quo. The rejection of systemic and institutionalized racism and its associated police brutality is rocking our nation. Law enforcement is under a lens that is unprecedented. Its culture, practices and impact are being challenged like never before. The continued militarization of our nation’s police have taken many lives needlessly.
That culture is also pervasive in prisons. The para-military behaviors of corrections officers that have also injured and killed incarcerated individuals is equally disturbing and pervasive. Yet here in New Hampshire they have the most direct contact with vulnerable individuals in both the Secure Psychiatric Unit and the Residential Treatment Unit, which is part of SPU. Corrections officers are given less than 3 days of specific training on how to manage individuals with severe mental illness. From those who contact us regularly, the lack of training is evident. Tasers, pepper spray and lock-downs that last for days are part of their limited skill set. Such methods are inconsistent with creating a therapeutic milieu. Pulitzer Prize journalist Pete Earley recently wrote about a pro se lawsuit filed in the US District Court by a civilly committed individual alleging such abuses in SPU. Civilly committed individuals do not escape such brutality either.
In New Hampshire, if you are in the prison your are considered an inmate regardless of your legal status. The state relieved itself of requiring a conviction to incarcerate an individual in the prison decades ago. Due process is a distraction, not a requirement in New Hampshire for those with severe mental illness. The state has created a system that routinely denies individuals due process rights as individuals not convicted of crimes are incarcerated in the Secure Psychiatric Unit.
Many of the cases we see publicly have received national attention because of cell phone video. Law enforcement has killed with such impunity that these crimes play out in broad daylight on the streets of our nation. The video of a police officer with his knee on the neck of a black man is redefining our nation. In the prison that is not what happens. The abuse and brutality are not seen by the public. Tall walls, politicized systems and a reckless disregard for life is what has been happening in prisons across our nation for decades. We have been able to look away, because it was not visible. It is visible, through lawsuits, untimely deaths and families left wondering what happened to their loved ones.
In December 2017, a 34 year old inmate named Philip Borcuk died in the Residential Treatment Unit in the New Hampshire Prison for Men in Concord. It was originally reported in the media that he died due to “self-injurious behavior”. No further information was released as the state police were investigating. A transcript from an April 2018 hearing in the US District Court highlights some of the state’s conduct after Mr. Borcuk’s death.
The Disability Rights Center(DRC) under the Protection and Advocacy for Individuals with Mental Illness Act, known as PAIMI, requested records regarding Mr. Borcuk’s death. Under a provision in PAIMI, DRC can determine probable cause if they suspect abuse or neglect.The initial response from the Attorney General’s office was as follows, “Department of Corrections did not see any inference of abuse or neglect”. The state had determined that DRC had no probable cause. DRC disagreed and filed a lawsuit. Other interesting items are also noted in this transcript. The state provided DRC with two seconds of video, essentially nothing. DRC indicated that they received video from the hall and could see a corrections officer with a “handheld camera .“ Yet they were advised that the “battery died” and no additional video was available. The transcript also indicated that seven corrections officer were involved in the incident . Yet we are being told by the Department of Corrections that he died of “self injury”. When one factors in the involvement of seven corrections officers and “two seconds” of video, that seems implausible.
These are the historical strategies and behaviors that we must reject. They need to be replaced with transparency and facts. Enough time has passed that the cause and manner of Philip’s Borcuk’s death needs to be released, as well as the circumstances surrounding his death. These are tactics that states have utilized for decades to evade accountability. We cannot accept an unexplained death in a unit designed to house vulnerable individuals. This individual died in the custody and care of the state when there was no expectation of death being imminent.
We must be equally outraged by the lack of transparency and accountability in our prison systems. The culture of silence exists as well. DRC advised the court that several staff members refused to speak with them for interviews. The Department of Corrections should not be allowed to continue to operate in a system that is, by design to limit transparency, eliminate public accountability and thwart litigation or legal consequence.
In 2007 a corrections officer was convicted of repeated sexual assaults of a woman in the Secure Psychiatric Unit. When she filed a civil lawsuit it revealed that the Department of Corrections ignored her initial claims. Ultimately, when they became aware the individual was fired. However, no criminal charges were filed. It was not until the civil lawsuit was filed that the individual was charged several years later. The rule of law has been negotiable when it comes to the state policing its own malfeasance or potentially criminal conduct. An individual associated with SPU is currently on the Laurie List. That barrier to the truth is also being challenged and litigated. Absurd explanations that appear to defy logic we can no longer accept as truth. Facts are truth.
Philip Borcuk and the unanswered questions about his death have not been forgotten. He left behind a family and a community that wants to understand how his life ended. The states treatment of mentally ill individuals has, is and remains brutal and primitive. New Hampshire has chosen to stay on the wrong side of history longer than most other states. We need to reject that status quo as well. A forensic hospital needs to be constructed and staffed with trained mental health professionals on the front lines, not corrections officers. A culture of healing and restoration needs to replace one of control and retribution. If a new facility is constructed, there needs to be an import of talent and leaders that understand civil rights, forensic psychiatry and their intersection.
What happened to Philip Borcuk ?
Below is the testimony RTKNH submitted to the Commission on Law Enforcement Accountability, Community and Transparency (LEACT).
Dear LEACT Commission,
RTKNH is a nonprofit, nonpartisan citizen coalition working to improve access to New Hampshire state, county, and local government including all law enforcement agencies. We advocate to strengthen New Hampshire state laws, particularly the Right-to-Know law known as RSA 91-A, as well as Right-to-Know governmental policies.
Part I, Article 8 of the New Hampshire Constitution and the Right-to-Know law are the fundamental prerequisites for a self-governing people. As the legislature made clear in the preamble to the Right-to-Know law: “Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter 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.” The Right-to-Know Law helps further our State Constitutional requirement that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”
As highlighted by a recent video by the New England First Amendment Coalition, the following issues exist in regards to achieving proper law enforcement accountability and transparency:
- Lack of availability of law enforcement records which are public records per RSA 91-A
- Excessive charges for copies of law enforcement records
Availability of Records
The public has a right to records which helps them understand what law enforcement is doing on our behalf. These records inform the citizens so they can hold public employees accountable for their actions. For example, all video and audio recordings made by a law enforcement officer using a body-worn camera, which are not considered an invasion of privacy, should be available to the public. Currently, most recordings are exempt from public disclosure.
Until recently, personnel records were categorically exempt from public disclosure. The following recent NH Supreme Court Rulings now require a determination of whether certain personnel records will continue to be exempt based on a balancing test between privacy interests and a public’s interest in disclosure.
- 2019-0135, Seacoast Newspapers, Inc. v. City of Portsmouth
- 2019-0206, Union Leader Corporation & a. v. Town of Salem
When it comes to the behavior of the law enforcement officers, in their official capacity, they should have no privacy or confidentiality interest in nondisclosure. Law enforcement officers perform vital functions on behalf of the public, and their misconduct creates the potential for considerable social harm. Officers are trusted with one of the most basic and necessary functions of civilized society, securing and preserving public safety.
Disclosure of misconduct is in the public interest. Yet, today, the names of law enforcement officers (150 in 2015 and 260 in 2019) who received due process and remain on the Exculpatory Evidence Schedule (EES) are shielded from the public’s right to know.
All citizens have the right to know which officers have engaged in misconduct, what they did, and what is being done to prevent it from happening again.
Law enforcement officers, by the nature of their duties and power, must be held to a higher standard. That higher standard must include transparency regarding their misconduct. Their conduct must be open to public scrutiny to allow for adequate checks and balances. Transparency ensures bad behavior cannot hide behind a veil of secrecy. Secrecy erodes the public’s trust and nurtures an environment which allows greater harm to those which law enforcement officers swear to protect.
Cost of Records
RSA 91-A:4(IV) allows law enforcement agencies to charge the “actual cost’ of providing copies of public records. The City of Concord charges 25 cents for each page requested, which approximates a true actual cost. However, many other law enforcement agencies charge exorbitant minimum rates for records, which greatly exceeds the ‘actual cost’ allowed by law. For example:
- NH State Police charges $ 25.00
- Berlin charges $20.00
- Sandown charges $15.00
- Derry and Somersworth charge $10.00
Charging citizens such high fees to access records allows public agencies to construct toll booths along the information highway on route toward the truth. These high fees are financial deterrents as citizens run out of money long before they can discover the veracity of law enforcement’s decisions and actions.
In summary, as James Madison explained centuries ago: “The right of freely examining public characters and measures, and of free communication among the people, is the only effectual guardian of every other right.”
Only with full transparency can citizens freely examine the character and measures of law enforcement officers. And transparency is a prerequisite for full accountability to the people.
Please include transparency requirements in all of your recommendations.
[End of Testimony]
All citizens are encouraged to submit testimony by sending an email to LEACT@doj.nh.gov
|The New England First Amendment Coalition, Nackey S. Loeb School of Communications and the New Hampshire Press Association will present a free webinar June 26th 12-1 pm about recent decisions expanding the public’s right to know about government. Attorneys Richard Gagliuso and Gregory V. Sullivan will discuss two positive decisions issued by the Supreme Court of New Hampshire earlier this month that will make it easier for the public to oversee its law enforcement agencies and hold police officers accountable for their actions. Gagliuso of Bernstein Shur and Sullivan of Malloy & Sullivan were among the attorneys arguing for the public’s right to know in the cases. In each case, the high court overruled a previous decision that categorically exempted from the state’s Right-to-Know Law any records related to “internal personnel practices.” With these rulings, that category of records is now more limited. A balancing test — rather than the more strict per se exemption — is now also required to determine if those records should be publicly released. At stake in the cases was the public’s right to access certain law enforcement records. Seacoast Newspapers v. City of Portsmouth concerned the release of a 2018 arbitration decision about a fired police officer. In Union Leader Corp. v. Town of Salem, the court addressed a public records request for an audit report that included details about internal affairs complaint investigations. Both the police union in Portsmouth and the Salem Police Department had cited a 1993 case Union Leader Corp. v. Fenniman to try to argue that the documents were exempt from the Right-to-Know Law, an earlier decision the court now says is flawed.|
Registration and additional details for this free webinar are found here.
Right to Know NH will meet on Saturday, June 20, 2020 @ 9 AM by conference call. We will discuss the status of Right to Know (RSA 91-A) bills which have been submitted for the current 2020 legislative session, the impact of the Corona Virus State of Emergency declared by the Governor, and begin planning for bills for the next year. The public is welcome to join us. If you’d like to join us, click on “Send us a message” under CONTACT US to the right and ask for the phone number to call.
By Laurie Ortalano, a Nashua resident and member of Right to Know NH.
Everyone knows that the COVID-19 pandemic has changed our lives, at least temporarily. This includes how we, the public, participate in local politics. With the pandemic-induced changes to how local politics works, I am a little concerned about the health of public participation during these unusual times. Let’s take a look at why I believe our voices are not being heard as well now.
Ordinarily, we can all participate in any public meeting by simply attending. In most cases, signing in and standing to address a board during community input is standard practice. And in our open, democratic society, our words become part of the public record.
Since the closing of Nashua City Hall to the public two months ago, how does public input work now? The Nashua Board of Aldermen voted to only accept, not read, emails and placed them on file for all remote meetings. The Board’s pandemic position to acknowledge the email is a far cry from physical participation in a public meeting where press coverage and media viewership brings light to citizen comments.
The Board has adopted an even more interesting practice. A citizen’s email communication for public input must be receive one week prior to the Board meeting, otherwise it is tabled until the next meeting, two weeks down the road. So, the public can never have a voice on items to be acted upon in a meeting because their comments are always submitted too late. At a minimum, the Board should be making these emails available in a much timelier manner.
The Boards new rules on public comment is a strong indication of how muted our voices have become in Nashua’s city government. Ordinarily, the Board would provide up to 30 minutes for public comment; they have been running freely without any “interference” from the public.
On the other hand, board committees or city managers have the ability to submit reports to the board and have them immediately recognized on record. Nashua’s Board of Aldermen President Lori Wilshire simply suspends the rule, if there is no objection of the Board, and accepts into record the correspondence submitted. The Board is using The Mason Rules for Legislative Procedure to muzzle the public, rather than to keep order so all voices can be heard.
Alderman Ernest Jette and Alderwoman Elizabeth Lu have questioned why public emails are not being recognized in meetings. They are silenced by other Aldermen who are trying to train them in “the Nashua Way”. Push the public off and stifle them.
From my vantage point, Nashua’s politicians are using the dictum “never let a good crisis go to waste” to exploit and advance their own political agendas. More so than ever, it is an important time for the public to keep a watchful eye.
Right to Know NH will meet on Saturday, May 16, 2020 @ 9 AM by conference call. We will discuss the status of Right to Know (RSA 91-A) bills which have been submitted for the current 2020 legislative session as well as the impact of the Corona Virus State of Emergency declared by the Governor. This is also our annual meeting and we will vote for officers. The public is welcome to join us. If you’d like to join us, click on “Send us a message” under CONTACT US to the right and ask for the phone number to call.
The New England First Amendment Coalition and the Nackey S. Loeb School of Communications are offering two free online classes about the First Amendment and the public’s right to know about government during a time of crisis.
NEFAC’s partnership with the Loeb School to offer free online classes is the latest example of how the coalition is helping to protect the press and educate the public during the COVID-19 pandemic.
To participate in either or both classes described below, register for them and you will receive log-in information.
Freedom of Information Laws and Your Right to Know
April 23 | 7 p.m. – 8:30 p.m
Presented by Justin Silverman, NEFAC Executive Director
The motto “assume your government will be open, but be prepared to fight for it,” seems even more important at a time when we are depending on the government for information which will keep citizens healthy. After this class students will have a better understanding of why government transparency is needed in our democracy despite its tension with personal privacy and security interests.
Registration and more information here.
The First Amendment in Times of Crisis
April 29 | 1 p.m. – 2:30 p.m.
Presented by Gregory V. Sullivan, NEFAC Board Member
This class will serve as a First Amendment primer, highlighting examples from other times of crisis and focusing on defamation and freedom of speech. Students will learn about the First Amendment to the U.S. Constitution and the five freedoms it protects. During class, students will view examples from challenging times in U.S. history when constitutional rights were tested and landmark legal cases reinforced First Amendment protections.
Registration and more information here.
Right to Know NH will meet on Saturday, April 18, 2020 @ 9 AM by conference call. We will discuss the status of Right to Know (RSA 91-A) bills which have been submitted for the current 2020 legislative session as well as the impact of the Corona Virus State of Emergency declared by the Governor. The public is welcome to join us. If you’d like to join us, click on “Send us a message” under CONTACT US to the right and ask for the phone number to call.
Emergency Order #12 pursuant to Executive Order 2020-04, the following RSA 91-A meeting requirements are waived, effective immediately, for the duration of the State of Emergency:
- RSA 91-A:2,III(b) that a quorum of a public body be physically present unless immediate action is imperative
- RSA 91-A:2,III(c) that each part of a meeting of the public body be audible or otherwise discernible to the public “at the location specified in the meeting notice as the location of the meeting,” so long as the public body:
- Provides public access to the meeting by telephone, with additional access possibilities by video or other electronic means;
- Provides public notice of the necessary information for accessing the meeting;
- Provides a mechanism for the public to alert the public body during the meeting if there are problems with access; and
- Adjourns the meeting if the public is unable to access the meeting.
The Attorney General has published guidance on how to hold meetings during the State of Emergency.
View all Emergency Orders here