Resident Betsy Frago has made a Right to Know request under RSA 91-A to inspect the invoices from Richard Sager to the board of selectmen from August, 2016, to the present. Sager is the board’s attorney. The selectmen, however, have not been completely forthcoming.
Betsy met with the selectmen at their meeting on Monday, April 24, to find out why they have not provided her access to the records yet.
An analysis of the check register shows that since the selectmen launched a lawsuit against Bob McWhirter and me in early December of last year Tuftonboro taxpayers have paid Richard Sager $11,113.30.
Sager’s March payment, funded by taxes, was $4,244.18. Sager’s payment in the month before the selectmen sued Bob and me was for $70. In the three months before the lawsuit, Sager received on average $218 each month. Since the lawsuit, taxpayers have written Sager checks for on average of $2,778.33 each month (December – March).
The selectmen are suing me because they are attempting to illegally charge me $6.50 to inspect government records even though RSA 91-A specifically forbids them from charging a fee for the inspection of a governmental record.
The hearing in the lawsuit that the selectmen filed against Bob McWhirter and me has been rescheduled once more. The new hearing date is April 18 at 2PM. This time it was postponed by the judge, and only by one day.
The selectmen are dragging us into court in any attempt to avoid their responsibilities under RSA 91-A, the Right to Know law.
1:15 First appointment: Gerry Hammer / Jack Parsons
5:00 Intent to excavate permits: discussion of ordinances in light of new articles passed at Town Meeting
5:10 — Jack Parsons
7:00 — Chris Sawyer, PB chairman weighs in
12:30 Review of pending intent to excavate paperwork
14:00 — motion to approve with provisions that selectmen can rescind. 3-0
15:00 — Signing paperwork
15:50 Jack Parson Building department update (the only damage to town property from Storm Stella was a few shingles blew off town house roof)
16:35 Ben Ladd — Mirror Lake boat ramp grant that was passed by Town Meeting. Discussion of contractor bids.
21:45 Chip would like to set a policy for putting contracts out for bid in the future, but not for this project since it’s already in process.
23:50 motion approval of project. passed 3-0 and Lloyd signed the paperwork
25:30 Clay Gallagher Transfer Station update & household hazardous waste collection update (july 29 & august 5). Pamphlets at transfer station.
44:15 Transfer station workers would like to work half day on Easter. They would receive holiday pay + half day.
50:30 Chip raises issue of different rates for contractors at transfer station
51:25 Review of 3-27-17 meeting minutes
53:00 Continued business
53:10 — Board committee assignments
Chip: Budget, welfare, Parks & Recreation
Bill: Planning, Old Homes, Energy, CIP Joint loss, milfoil, Planning
Lloyd: emergency planning, conservation, TACC, watershed
57:12 Board meeting schedule. Bill doesn’t want more meetings. Chip says if there aren’t more meetings, then the meetings have to be better organized. Chip doesn’t like relying on attorney client privilege as a way to subvert open meeting requirement to respond to RTK. Lloyd is ok with meeting every Monday. That way the meetings will be shorter, too. Lloyd suggests meeting once a month at 7PM. Also at different locations around town. Next meeting Friday at NINE AM.
1:06:45 Brown Road
Chip “I don’t know how you got into; well, I do know how you got into this mess.” Says to direct Road Agent to remove the rocks.
Bill: rocks clearly within right of way.
Chip: problem I have with this is it was all done without a vote.
Chip: enormous amount of legal bills in this town, and this is one of the reasons why.
Lloyd asks for input from public
1:17:20 Sandy Knoll Road
1:23:30 Selectmen’s update
1:23:40 Chip looked at the tree on Union Wharf Road. Chip says it’s not on town property, but is in town right of way. Chip thinks it’s health and not a danger.
1:25:12 Bill went to workshop on town roads. If someone wants to build on a property on Sandy Knoll Road, they’ll still have to get a building permit, and the governing body doesn’t have to approve it. Noted with sadness the passing of Steve Honeycutt, town Sextant.
1:33:00 Lloyd met with Mark Howard and others to tour three areas of concern in town on state roads: Tuftonboro Corner, 109/109A, and Mirror Lake narrows.
1:42:50 Appointments to Agricultural Commission. Approved.
1:44:35 Motion to appeal all yield taxes. Perchanski. Bob Wood. Alan Blazek. 3-0
1:47:23 Intent to cut. Blazek. Perchanski. 3-0
1:48:42 Request for change in employment compensation. (RETROACTIVE to January 1, 2017.) Tabled.
1:51:30 Other business
1:52:00 Right to Know from Ed Comeau
1:58:15 Chip “I don’t know what Comeau’s after.”
1:59:30 in past Tuftonboro had a former employee who was still covered.
2:07:45 Chip says they need to set a price per copy policy at a market rate.
2:09:45 Chip need to respond to Comeau saying the board will working on the request.
2:10:40 public input
2:10:50 Elissa Paquette question about intent to excavate and the board wanting to have an addendum allowing the to revoke permit.
2:15:06 Charlotte Allen: NarCan training opportunities
2:16:32 Carla Lootens: Wanted to make sure town won’t give anything to Comeau unless the selectmen’s attorney, Richard Sager, has looked at it.
2:17:05 Gordon Hunt: Was happy selectmen were not giving in to Comeau just because he has an attorney.
2:17:35 Steven : follow up Brown Road. Why did property owners place rocks?
Max Ledoux: To clarify, Carolyn Sundquist told Steinmans it was ok.
Elissa Paquette jumped to Carolyn’s defense.
0:40 Pledge of Allegiance
1:14 Election of officers
2:05 Mark Howard
9:35 review minutes
11:45 Chip says non public minutes aren’t in compliance with 91-A
14:25 Chip questions nonpublic sessions with attorney. Makes motion to unseal minutes. Motion passes 3-0.
16:30 chip wants to unseal nonpublic minutes from last year.
17:20 Fire department update
26:45 Chip not impressed with road agent
27:15 update emergency management plan?
32:30 list of people who might need help was out of date.
39:00 police chief Andy Shagoury
DWI accident caused power outage Friday night
43:25 drug take back scheduled April 29 10-2 at transfer station
01:30 signature file
11:58 veteran’s tax credit applications
Kerry and Andrea Long
15:00 yield tax levy
17:30 NH the Beautiful
18:10 gravel tax
19:25 supplemental Warrant (extra taxes from Zadede Lane residents)
20:40 letter to students at middle school
21:40 intent to cut: Brad Hunter (rt 171)
22:30 188 middle road gravel pit
27:50 mirror lake boat launch
31:40 lake road boat ramp
33:45 Right to Know
Lloyd asked Karen to compile how much time is used to respond to RTK. Chip says who cares. It’s part of the deal.
40:00 Selectmen’s update
Bill attending seminar about town owned roads.
Need new planning board members.
Also for energy committee.
48:23 Chip about 91-A
Need more meetings
Nonpublic meeting minutes should be released on regular schedule
52:00 Brown Road: there’s a lawsuit?
There was no vote on Steinman rock situation
More meetings specific agenda shorter length
The selectmen — Carolyn Sundquist, Bill Marcussen, and Lloyd Wood — filed a motion to continue earlier this week with Carroll County Superior Court to delay the hearing in Tuftonboro vs. McWhirter & Ledoux until after Carolyn Sundquist leaves office as chairman of the board of selectmen.
The selectmen sued Bob McWhirter and me in December and tried to force us into court just four days before Christmas. However, we hired an attorney and filed a motion to continue so that we would have time to respond. The court granted our motion and rescheduled the hearing to January 27. The selectmen then filed their own motion to continue, which we assented to, a few days before the 27th, and the hearing was rescheduled again to February 22.
Now they have filed another motion to continue, and today the Court granted the motion. The hearing has not as of this moment been rescheduled.
However, the hearing is almost certain to be after Sundquist leaves office after Town Meeting on March 15. The Court granted the selectmen “reasonable time” to respond to our counterclaim, which we filed on February 7. According to court rules, then, the selectmen have 30 days to respond, which would be March 9.
The selectmen also filed an Objection to our counterclaim, but the Court has granted our motion to add the counterclaim, in which we are seeking reasonable attorney’s fees from the selectmen. We also asked for a court order requiring the selectmen to undergo remedial Right to Know training at their own expense.
All this because the selectmen refuse to follow the clear language of RSA 91-A:4-IV, which states: “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
I asked to inspect some emails. The selectmen attempted to illegally charge me $6.50 to inspect those emails. I refused to pay. They sued me.
It’s reasonable to assume that the selectmen are spending more than $6.50 to sue me. (Richard Sager’s regular attorney fee is $175 per hour.)
Selectmen chairman Carolyn Sundquist last night dismissed concerns that refusing to disclose how much the town spends per employee on health benefits would open the town to future litigation through New Hampshire’s Right to Know statute (RSA 91-A). Seeming to invite a lawsuit, Sundquist said, “What’s one more case?”
The Tuftonboro selectmen are refusing to provide the budget committee with information critical to finalizing the town’s budget. The selectmen claim that public employee privacy rights prevent them from disclosing how much the town spends per employee on health benefits. The selectmen apparently base this decision to violate the Right to Know law on a single email that Carla Lootens, the chairman of the budget committee, received from someone at the New Hampshire Municipal Association. Lootens described this last night as “advice from counsel.” However, it’s not clear that an email from someone at NHMA really constitutes “advice from counsel.”
Recently the Carroll County business office turned over approximately 3,000 records in a Right to Know request that specifically asked for all employment records for anyone employed by the county during a specific time period including each employee’s eligibility for dental or health insurance. The County also turned over records of insurance claims that had been filed by employees during the same time period.
By refusing to provide the budget committee with basic information about how the budget is determined, the selectmen are not only violating the public’s Right to Know but also severely damaging the budget committee’s ability to do the job that they were independently elected to perform.
As budget committee vice chairman Steve Brinser noted, each budget committee member is supposed to sign off on the budget, with the statement “Under penalty of perjury, I declare that I have examined the information contained in this form and to the best of my belief it is true, correct and complete.”
“With respect to almost $600,000, that’s in the budget,” said Brinser, referring to the total amount spent on employee benefits, “which I can’t tie down, causes me to have a problem with that. I can’t sign off to attesting that it’s accurate.”
John Libby, also a member of the budget committee, voiced similar doubts about signing off on the budget when so many of the numbers within it, particularly tax revenues, are estimates. “How do we sign off on this, if this is an estimate, and these are all going to change?” He asked.
Update: In response to a comment from Rick, below, here is the 2016 personnel administration spreadsheet that shows how much we spent on each employee for health benefits:
We’ve had to file a counterclaim with Carroll County Superior Court because the selectmen were absurdly claiming in their Objection to our Answer that because they were suing us that the court shouldn’t view the lawsuit as a Right to Know case. (Never mind that their own stated reason for suing town residents is that they’re asking the court to “clarify” the Right to Know law.)
So for procedural reasons we have had to officially counter-sue the selectmen. Practically speaking, the only difference is that we had to pay a filing fee. That’s it. But it will allow the Court to narrow its focus to the issue at hand: whether the selectmen can charge a fee for the inspection of governmental records even though the law clearly states that they can not. In our counterclaim we’re also requesting that the Court hold the selectmen personally financially responsible for paying our attorney’s fees and also for paying for their own remedial Right to Know training.
Through Sager, the selectmen are averring that they should not have to pay our “reasonable attorney’s fees,” should they lose, because their suit is not a Right to Know lawsuit, and “thus, there is no ‘lawsuit … necessary in order to make the information available’ to the defendants.”
The selectmen also claim in their Objection that it “isn’t clear if or when a complaint would be filed by either of these defendants.” They make this claim now even though just two months ago they justified their lawsuit against us by claiming in their original Complaint that “it is also apparent that the Town would be sued by one or both of defendants if the Town continued to refuse to provide redacted emails for no charge.”
Now they claim, of us, “if they were planning to take a proactive approach, they should have done so before the Town filed this action.” Of course, the reason that we have not sued them is that they sued us.
Furthermore, no legal action would have been necessary had they simply complied with RSA 91-A:4(IV): “Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. … No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
On January 23, four days before the hearing, we filed an Answer to the selectmen’s Complaint. We could have dropped the Answer in Sager’s lap in court. Instead, we were courteous and provided it to him in advance. He then filed his own Motion to Continue, which we assented to through our attorney. The hearing is now scheduled for February 22, at 1PM.
After filing his Motion to Continue, however, Sager then took to Facebook to claim that our Answer was late because it was “required to be filed on December 21.” This is simply false.
However, when I asked Sager to correct his obviously wrong claim, he instead doubled down, writing “the document entitled ‘Summons – Hearing Scheduled’ served on both Mr. Ledoux and Mr. McWhirter states, in pertinent part, ‘The Court ORDERS that ON OR BEFORE: … December 21, 2016 …Maxim Blowen-Ledoux, A.A L.; Robert McWhirter shall file an Appearance and Answer or other response with this Court. A copy of the Appearance and Answer or other response must be sent to the party listed below and any other party who has filed an Appearance in this matter.’ It’s part of the public record. I am not making this up.”
Sager might not be making that up, but he is ignoring the clear meaning of “Appearance and Answer or other response.”
It strains credulity to think that the court would grant a Motion to Continue, and reschedule the hearing, but require the Answer to be filed by the original court date. What would be the point of postponing the trial, in that event?
Who knows. Sager wrote, “The deadline for filing an Answer has always been December 21. It was never modified by the court. I didn’t push the issue out of courtesy to your attorney, knowing he needed time to get up to speed.” He then added that he was “regretting that decision now”
Sager even alludes to his theory in the introduction to the Objection: “Rather than object to both the Answer and the Motion as being non-compliant with superior court rules in various aspects, the Town seeks instead to respond to the imbedded Motion on its merits.” (Emphasis added.) However, since he has no actual proof that our Answer was late or in violation of superior court rules, he offers none.
Later in the Objection, Sager misinterprets Paragraph 72 in our Answer. He seems to be under the impression that we were claiming the Superior Court found in Sawyer v. Sundquist that the selectmen “knew or should have known” that they were breaking the law.
That is not what we wrote, and a clear reading of Paragraph 72 makes that obvious. In fact, our attorney cited the ATV Watch case at the end of the paragraph, not Sawyer. The point we were making, apparently lost on Sager, is that since the Superior Court ruled the selectmen had violated RSA 91-A multiple times in Sawyer, the selectmen “should have known” that they were violating the law when they attempted to illegally charge me a fee to inspect a governmental record.
Sawyer was less than a year before the selectmen attempted to charge me, and two of the current selectmen — Carolyn Sundquist and Lloyd Wood, were on the board when Sawyer was decided against them.
Given Sager’s muddied view of RSA 91-A and superior court rules, it’s no wonder that the selectmen, with his advice, embarked on such an egregious abuse of power as to sue citizens in an attempt to avoid their obligation under the state constitution and law.
It is my opinion as a tax payer in Tuftonboro that our town is not served well by Sager’s legal advice and that we would do well as a town to fire him. Of course, the selectmen are the ones who decide who to hire as their attorney (even though his $175 an hour fee is paid with tax payer money).
The selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) are suing me and fellow Tuftonboro resident Bob McWhirter. Both Bob and I have separately asked to inspect governmental records. The reason for the lawsuit is that the selectmen don’t want to follow the Right to Know law (RSA 91-A). The law states unequivocally, “no fee shall be charged for the inspection or delivery, without copying, of governmental records.”
The selectmen want to charge us fees to inspect the governmental records. In Bob’s case the fees might run to more than $2,750! So they’ve asked the Superior Court to legislate from the bench to allow them to charge an illegal fee to all citizens seeking to inspect government records.
Our response is almost 5,000 words and contains numerous counter-allegations against the selectmen, including this:
45. By way of further example, Defendant Blowen-Ledoux’s November 3, 2016, RSA 91-A request included emails to or from former selectmen Daniel Duffy. However, on November 7, 2016, the Selectmen’s Administrative [Secretary] informed Defendant Blowen-Ledoux that Duffy’s official “@tuftonboro.org” email account had been deleted when his term of office expired in March, 2016. Therefore, none of the emails he had sent or received while in office can be produced.
46. If the intentional deletion of all email to and from a Selectmen that only recently completed their term in office is not a direct violation of RSA 91-A, then it certainly violates the spirit of the law. See eg., James M. Knight v. School Administrative Unit #16, et al., Docket No. 00-E-307 (Rockingham Superior Court) (2001) (Abramson, J.) (respondents held in contempt after intentionally deleting requested files, and misleading the Court into believing that the files still existed at the time of trial, and were ordered to pay attorney’s fees, costs and to bear the costs of production for the remaining records.)
We also request that the Court:
Deny the Town’s Complaint
Compel the selectmen to produce the electronic governmental records that we have requested, without charging us an illegal fee
Order the selectmen to pay, personally, our attorney’s fees
Order the selectmen to undergo, at their own cost and expense, remedial training on the Right to Know law
Tom Beeler, the editor of the Granite State News, added an “editor’s note” to a letter he printed two weeks ago from Molly Powell (my wife). He wrote: “What is being requested is not ‘a record’ or ‘a document’ but every email sent or received by the town—an estimated 11,000—some of which contain very private information that no one gave permission for just anyone to see.”
RSA 91-A:1-a III defines “governmental records” as “any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function.” This includes “any written communication or other information, whether in paper, electronic, or other physical form.”
And RSA 91-A:1-a IV defines “information” as “knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.”
That an email is a government record is not in question.
The City of Manchester, for instance, includes the following 91-A disclaimer in every email sent from the @manchesternh.gov domain: “The Right-To-Know Law (RSA 91-A) provides that most e-mail communications, to or from City employees and City volunteers regarding the business of the City of Manchester, are government records available to the public upon request. Therefore, this email communication may be subject to public disclosure.”
Indeed, the New Hampshire Secretary of State made a Right to Know request last month to the City of Manchester for all communications about a pilot program for electronic poll books. Essentially, the Secretary of State is requesting 18 months’ worth of emails. That is far more than Bob McWhirter has requested. The selectmen estimate that 11,000 emails would be responsive to Bob’s request, but this estimation has not been in any way substantiated. Bob refined his original request, however, drastically reducing the number of emails that would be responsive—11,000 was an estimate that is no longer relevant.
Tom thinks it matters whether the records contain “very private information that no one gave permission for just anyone to see.”
In Mans v. Lebanon School Board, the New Hampshire Supreme Court ruled that concern for “invasion of privacy” should not be so broadly interpreted as to defeat the purpose of the right-to-know statue. Furthermore, the Supreme Court has ruled repeatedly that “whether information is ‘confidential’ must be determined objectively, and not based on the subjective expectations of the party generating it.” (See Lamy v. N.H. Publ Util. Comm’n, among other cases.)
But Bob and I are not disputing whether certain parts of the emails we have requested will be redacted. The issue is that the selectmen are attempting to illegally charge us a fee to do the redaction. However, there is nothing in the statute that allows the government to charge a fee for the labor of responding to a Right to Know request. As Tuftonboro Selectman Carolyn Sundquist herself stated on October 17 in a Selectmen’s meeting and on November 1 in a Budget Committee meeting, we already pay the staff’s salary, and responding to Right to Know requests is part of their “normal work schedule.” That’s a direct quote from Carolyn, on November 1 (the video starts at 58:52, Carolyn’s comment is at 1:00:20):
Thank you to everyone who has very generously contributed to our legal defense fund. Through the kindness of fellow citizens, we have raised $2,215 so far to fight the selectmen’s lawsuit against us. The hearing is on January 27 at 9 AM at Carroll County Superior Court in Ossipee.