For Immediate Release
July 31, 2009
Senior Assistance Attorney General Jane E. Young
Acting Attorney General Orville B. Fitch II announces that the Attorney General's Office has reviewed the decision by the Rockingham County Attorney's Office not to pursue criminal charges arising from the electronic monitoring of employees in the records office at the Portsmouth Police Department. The Attorney General's Office has determined that the decision of the Rockingham County Attorney's Office is a reasonable exercise of prosecutorial discretion. Accordingly, no further action is warranted on this matter.
On June 8, 2009, Rockingham County Attorney James Reams issued a letter to Portsmouth Police Chief Michael J. Magnant explaining his decision not to pursue criminal charges relating to an internal investigation completed by the Portsmouth Police Department. The Attorney General's Office reviewed the facts as described in County Attorney Reams's letter as well as a copy of the 19 page Portsmouth Police Department Investigator's Report (with the names redacted) that had been reviewed by County Attorney Reams. The Attorney General's Office has no information that the facts described in the Portsmouth Police Department's Investigator's Report or the County Attorney's letter are inaccurate.
As the chief law enforcement officer for the State, the Attorney General has authority to review, for an abuse of prosecutorial discretion, the decision of the county attorney not to file criminal charges. However, the county attorney, as an elected official, is primarily responsible to his or her constituents for the prosecution of crimes in his or her jurisdiction. Absent some overriding public interest, so long as the county attorney acts in a good faith manner, the Attorney General will not interfere with the prosecutorial decisions of the county attorney's office.
RSA 570-A:2 I (a) makes it illegal for anyone to "willfully intercept … any … oral communication" "without the consent of all of the parties to the communication." To convict an individual for a violation under this statute, the State must prove beyond a reasonable doubt that the person whose conversation was intercepted "exhibit[ed] an expectation that such communication is not subject to interception under circumstances justifying such expectation." RSA 570-A:1, II. Furthermore, the New Hampshire Supreme Court has held that a person "has not violated RSA 570-A:2, I if he has a 'good faith' belief that [his] conduct was lawful." Fischer v. Hooper, 143 N.H. 585, 589 (1999).
Given the facts presented in the Investigator's Report and in County Attorney Reams's letter, there is no dispute that members of the public were notified, by a posted sign in the lobby, that their conversations were subject to recording when at the records office. While due to an oversight, there was no explicit sign notifying police department employees that their conversation would be recorded or monitored while in the records office, it is reasonable to question whether the State would have been able to prove that the employees had a reasonable belief that their communications would not be intercepted. The recording system was not installed in a covert manner, but done openly. The installation of the microphones and audio recording system was authorized and approved after staff discussions. Moreover, there was a microphone plainly visible in the records office.
The fact that some of the employees may have been unaware that the supervisor had the ability to monitor the conversations in "real time" does not vitiate the reasonableness of the County Attorney's decision. The employees knew or reasonably should have known that their conversations with the public were subject to interception. The fact that the employees were unaware of the precise manner of interception or who was monitoring the conversations does not make the recording illegal. The courts will not read the definition of interception in a hypertechnical manner. See State v. Locke, 144 N.H. 348, 355 (1999). Law enforcement is not required "to inform a person of the precise method by which a targeted conversation will be intercepted." Id. Moreover, courts will conclude that a person consented to having his or her conversation intercepted so long as the person generally was aware of the fact that law enforcement were monitoring or recording the conversation, "even if the precise method of interception is not disclosed." Id. Given the nature and circumstances of the facts presented it would be difficult to prove beyond a reasonable doubt that the employees "exhibit[ed] an expectation that [their] communication is not subject to interception under circumstances justifying such expectation." RSA 570-A:1, II.
Finally, County Attorney Reams reasonably concluded that the State could not prove beyond a reasonable doubt that anyone acted knowing that their actions were illegal. It is reasonable to conclude that the State could not establish beyond a reasonable doubt that the department employees who installed the system had a good faith belief in the legality of their actions. The system was installed openly, in consultation with technology personnel and possibly ranking officers. A red sign giving notice of the recording of conversations in the area of the records office was posted on the wall in the main lobby outside of the records office. This sign was visible to anyone who passed through the lobby. Moreover, the system was installed for legitimate administrative reasons: to ensure the quality of service provided by city employees and to protect employees from wrongful complaints. There is no evidence that the system was used for personal reasons or used for reasons other than these legitimate administrative concerns.
Given these circumstances, County Attorney Reams's determination that there was not "sufficient evidence to bring criminal charges against any employee for violations of RSA 570-A", was a reasonable exercise of his prosecutorial discretion. Accordingly, no further action is appropriate by the Attorney General's Office.
New Hampshire Department of Justice | 33 Capitol Street | Concord, NH | 03301