State Supreme Court rules Concord can keep details on secret police equipment hidden

Taxpayers will remain in the dark about “covert communications equipment” used by the Concord Police Department after the New Hampshire Supreme Court ruled that the city could keep secret from the public what the equipment is, what it does and the name of the city’s vendor.

In an opinion released on Tuesday on the lawsuit brought by the American Civil Liberties Union of New Hampshire and the Monitor, a divided court upheld most of the city’s redactions to a license agreement with an unknown vendor that the Monitor and ACLU-NH received after filing Right-to-Know requests.

Under the ruling, Concord residents will not get an opportunity to learn more about the surveillance technology, which was described in court as a “confidential technique.” Doing so “could reasonably be expected to risk circumvention of the law by allowing individuals to learn about the surveillance technology and take evasive measures against it,” justices wrote.

The Supreme Court also upheld a lower court’s decision to hold a private hearing to view the redacted information and hear testimony on the covert technology’s use.

Concord City Solicitor James Kennedy had argued before the court in February that making public what the taxpayer-funded technology does or even the name of the company that provides the service would endanger the lives of police officers and jeopardize investigations.

City Manager Tom Aspell had said previously that the equipment is not cameras or drones.

“The city is pleased with the N.H. Supreme Court’s decision, which upholds and preserves the law enforcement exemption under New Hampshire’s right to know law,” Kennedy said Tuesday.

The ACLU, which argued for disclosure, maintained the public has a right to know what the government is up to and how taxpayer dollars are being used.

“We are disappointed in the Court’s decision today to permit the City to hold a one-sided evidentiary hearing and keep secret the details of equipment that police are using in New Hampshire,” ACLU Senior Staff Attorney Henry Klementowicz said Tuesday.

“We will continue to advocate for open government in New Hampshire,” Klementowicz added.

The court ruled that a few redactions on the license agreement should be removed since some of that information had been made public by the city in subsequent Right-to-Know requests and a section on the vendor’s rights, but the exact language was not yet released by the city or court.

“We also conclude that the court erred in upholding the redaction of a clause in the agreement giving the vendor certain rights should the possibility of public disclosure of the technology arise,” the justices wrote in the opinion.

In 2019, the city refused to disclose information about a $5,100 line item for “covert secret communications” in the proposed police budget. The name of the vendor is secret under a non-disclosure agreement signed by the City of Concord. A copy of a 29-page license and services agreement provided to the Monitor by Concord Police Chief Bradley Osgood was heavily redacted.

That contract, signed in 2017, describes how the vendor’s “website, applications, or services,” can be used by the city. Kennedy argued in court that revealing the identity of the vendor would make it easy to guess the nature of the equipment.

Merrimack County Superior Court Judge John Kissinger Jr. had originally decided that revealing the nature of the equipment to the public could put people in danger and allow criminals to evade the technology. Kissinger issued his order after viewing information and hearing testimony from Osgood in a secret proceeding which ACLU-NH attorneys were not allowed to attend.

The Supreme Court justices wrote in their divided opinion that although such hearings should be used “rarely and cautiously,” Kissinger had acted appropriately by holding one so that the court could learn more about the risks of disclosing the technology.