§ 105:13-d — Exculpatory Evidence Schedule

I. The department of justice may voluntarily maintain an exculpatory evidence schedule. The exculpatory evidence schedule shall consist of a list of all current or former law enforcement officers whose personnel information contain potentially exculpatory evidence. Subject to the provisions of this section, the exculpatory evidence schedule may be maintained by the department of justice and shall be a public record subject to RSA 91-A.
II. For officers on the exculpatory evidence schedule as of the effective date of this section:
(a) The department of justice shall, upon the effective date of this section, provide written notice to all such persons. This notice shall notify the individual that he or she is currently on the exculpatory evidence schedule, that he or she has 180 days from the date of notification to file a lawsuit in superior court regarding the officer's placement on the exculpatory evidence schedule after which any cause of action the officer might have to challenge his or her placement on the exculpatory evidence schedule shall be extinguished; however, for officers added to the exculpatory evidence schedule from April 30, 2018 to the effective date of this section, this notice shall state that the officer has 90 days from the date of notification to file a lawsuit in superior court regarding the officer's placement on the exculpatory evidence schedule, after which any cause of action the officer might have to challenge his or her placement on the exculpatory evidence schedule shall be extinguished.
(b) A person on the exculpatory evidence schedule is presumed to have received the officer-specific notice referenced in subparagraph II(a), 3 business days after the department of justice sent it via first class mail to the officer's last known address.
(c) Any lawsuit by an officer regarding his or her placement on the exculpatory evidence schedule shall name as a party to the lawsuit the law enforcement agency that recommended the officer's placement on the exculpatory evidence schedule. Any such lawsuit shall also provide the department of justice with notice that any such action has been filed. The law enforcement officer shall provide notice of any court order and the disposition of any such action to the department of justice at each stage of the proceedings. The department of justice shall have the right to intervene in any such matter at any time. Any claim seeking an order finding that the underlying misconduct is not potentially exculpatory shall name the department of justice as a party.
(d) One hundred and eighty days from the date of notification for officers added to the exculpatory evidence schedule prior to April 30, 2018, and 90 days from the date of notification for officers added to the exculpatory evidence schedule between April 30, 2018 and the effective date of this section, individuals and corresponding information on the exculpatory evidence schedule shall be made public, except for any individual with a pending legal action regarding the officer's placement on the exculpatory evidence schedule. Once the pending action has concluded with a final order, after exhausting any applicable appellate rights, the individual's name and corresponding information will become public unless:
(1) In a matter in which the department of justice is a party, a court issues an order finding that the underlying misconduct is not potentially exculpatory; or
(2) A court issues an order finding that the law enforcement agency erred in recommending that the officer be placed on the exculpatory evidence schedule.
(e) If the court issues an order finding that an officer did not receive adequate due process and remands the matter back to the law enforcement agency for further due process proceedings, then the officer's name shall not be publicly disclosed until the due process ordered is finally exhausted. If the officer subsequently ceases to pursue or does not challenge the alleged conduct leading to placement on the exculpatory evidence schedule through any applicable grievance process, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the exculpatory evidence schedule shall become public. If the officer does challenge through any applicable grievance process the alleged conduct leading to placement on the exculpatory evidence schedule, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the schedule shall become public only after the completion of the grievance process, and after the officer has exhausted all appellate rights, unless the grievance process determines that the alleged underlying potentially exculpatory misconduct was unfounded, not sustained, or that the officer was exonerated. In this section, the term "grievance process" means any process established by a collective bargaining agreement or by law that provides an employee an opportunity to contest an employment decision made by an employer.
III. For officers who are added to the exculpatory evidence schedule after the effective date of this section:
(a) Local law enforcement agencies shall send notice to the department of justice identifying the name and mailing address of any officer who they contend should be placed on the exculpatory evidence schedule, briefly describing why the officer should be placed on the schedule, describing how the officer was notified and afforded an opportunity to contest placement, and describing the grievance procedures available to that officer, including the timeline for filing a grievance.
(b) Upon receipt of notice by a law enforcement agency of an officer's placement on the exculpatory evidence schedule, the department of justice shall add the officer to the exculpatory evidence schedule and immediately provide written notice to the officer. The notice to the officer shall specify that the officer has been added to the exculpatory evidence schedule. The placement on the exculpatory evidence schedule shall be temporary and nonpublic unless and until the officer exhausts any grievance process. This temporary, nonpublic portion of the exculpatory evidence schedule shall not be a public record under RSA 91-A. If the officer ceases to pursue or does not challenge the alleged conduct leading to placement on the exculpatory evidence schedule through any applicable grievance process, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the exculpatory evidence schedule shall become public. If the officer does challenge through any applicable grievance process the alleged conduct leading to placement on the exculpatory evidence schedule, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the exculpatory evidence schedule shall become public only after the completion of the grievance process, and after the officer has exhausted all appellate rights, unless the grievance process determines that the alleged underlying potentially exculpatory misconduct was unfounded, not sustained, or that the officer was exonerated. The officer shall timely notify the department of justice of whether he or she is going through the grievance process concerning the conduct that led to placement on the exculpatory evidence schedule and the outcome of such proceedings.
IV. The department of justice shall at least monthly update the exculpatory evidence schedule within 30 days of this section's effective date on a publicly accessible website, with a notation indicating the date in which the exculpatory evidence schedule was updated.
V. Beginning on January 1, 2022, and quarterly thereafter, the department of justice, provided it continues to maintain the exculpatory evidence schedule, shall file a report with the governor, the president of the senate, the speaker of the house of representatives, and the chairpersons of the house and senate judiciary committees concerning compliance with this section. This report shall be made available to the public. This report shall include the total number of officers on the exculpatory evidence schedule, the number of officers who were sent notice under paragraphs II and III, the number of officers whose names have been disclosed to the public under each paragraph of this section, the number of officers who have filed lawsuits under this section, including the case name, number, jurisdiction, and corresponding field on the redacted exculpatory evidence schedule indicating the officer who has filed the lawsuit, and the number of people who are temporarily on the nonpublic exculpatory evidence schedule pending any grievance process. Nothing herein shall preclude the court from taking any necessary step to protect the anonymity of the officer before entry of a final order.
VI. Nothing in this section shall require the department of justice to maintain an exculpatory evidence schedule. Any obligations established under the provisions of this section shall apply only as long as the exculpatory evidence schedule exists. Nothing in this section shall relieve any prosecutor of their obligation to provide exculpatory evidence to criminal defendants.

Legislative History

2021, 225:2, eff. Sept. 24, 2021.