ACLU-NH represents the Valley News in police transparency case
An ACLU-NH lawyer said it might take months for the New Hampshire Supreme Court to decide whether Canaan’s police investigation results would be made public.
The New Hampshire Supreme Court may soon decide whether to grant a preliminary injunction that would conceal a report on an alleged case of excessive force by a Canaan police officer from public view. The Valley News and American Civil Liberties Union of New Hampshire are seeking the publicization of the report, while the now-former police officer is seeking to block the town of Canaan from releasing it.
In July 2020, former Canaan police officer and current state trooper Samuel Provenza and his counsel John Krupski filed a petition for preliminary injunction against the town of Canaan, in which Provenza alleged that making the report’s results public would violate his privacy interests.
The case was previously decided in the Grafton County Superior Court, which denied the petition and ordered the report released to the public in Dec. 2020. Provenza then appealed the decision to the New Hampshire Supreme Court.
The request to make the report public was initially made by Valley News columnist Jim Kenyon. The Valley News has retained the ACLU-NH in its legal efforts to acquire the report.
According to a brief filed by the ACLU-NH in August 2021, Canaan resident Crystal Eastman alleged that Provenza used excessive force against her during a traffic stop on Nov. 30, 2017: Provenza pulled Eastman over for trailing her daughter’s school bus. When Eastman allegedly refused to exit her vehicle, Provenza physically removed her from it, according to the brief.
According to Eastman’s attorney, Provenza pulled Eastman out of her car by her hair and kneed her in the leg, which resulted in a serious injury that required surgery. Eastman was later charged with resisting arrest and disobeying a police officer and found guilty of disobeying a police officer.
According to New Hampshire Public Radio, Eastman filed a federal civil rights lawsuit in Sept. 2020 against Provenza, Canaan police chief Samuel Frank and the town of Canaan — seeking damages for the use of excessive force.
Canaan’s Select Board decided in 2018 to hire Municipal Resources, Inc. — a consultancy based in Meredith, NH — to conduct an independent report. According to Canaan town administrator Mike Samson, the town made the decision after receiving a public complaint about police actions.
“The board felt it was in the best interest of the town to have a review done outside of the department of the complaint,” Samson said.
The MRI report concluded that no misconduct had occurred during the 2017 traffic stop. The report itself has not been released to the public.
Mark Myrdek, the investigator hired by the Town of Canaan, is a former police officer and state trooper. Kenyon said that he was uncomfortable with the fact that the investigation was conducted by a former police officer and believed the public had a right to view Myrdek’s investigative procedure. Samson said Myrdek was recommended to the Town of Canaan by MRI.
Kenyon, who said he has written at least half a dozen columns on the incident, added that he requested the report from the Town of Canaan in February 2019 but was denied.
“Towns and police unions don’t like to turn over those documents,” Kenyon said. “So I wasn’t surprised when my first public records request was rejected.”
Although Kenyon made another request in June 2020, after a separate New Hampshire Supreme Court case ruled in favor of the public’s right to know, he was once again denied. Samson explained that Canaan wanted to avoid legal challenges and felt the courts were more qualified than it was to rule for or against the report’s release.
“We believed we had two duties: one to the public and taxpayers and another duty to our employees,” Samson said. “We tried to steer a course.”
The Valley News then retained the ACLU-NH to file a complaint-in-intervention brief in Samuel Provenza v. Town of Canaan in August 2020. Henry Klementowicz, one of the ACLU-NH lawyers representing the Valley News, said that there is a significant public interest in disclosure of the report.
“The police department in Canaan works for the Select Board and, ultimately, the citizens of Canaan,” Klementowicz said. He added that he believes the people of Canaan have the right to determine based on the MRI report whether police reform is needed.
Kenyon claimed that Canaan town officials welcomed Provenza’s petition because it would give them an excuse to avoid releasing the report, however Samson said Kenyon’s claim is “utter nonsense.”
Klementowicz argued in the Valley News’ objection to Provenza’s preliminary injunction request that the public interest in disclosure superseded Provenza’s privacy interests. Specifically, Klementowicz claimed that documents pertaining to an individual’s performance as a government official are exempt from privacy interests.
According to a prior New Hampshire Supreme Court ruling in Union Leader Corp. v. Town of Salem, the court must conduct a “balancing test” to determine whether the public interest in disclosure outweighs Provenza’s privacy interests in this case.
Klementowicz said that it may be months before the New Hampshire Supreme Court reaches a verdict, adding that he hoped the decision would set a precedent for greater police transparency in the future.
“I think public interest in how the police hold themselves accountable is universal,” he said.