Video thanks to Joe Kowalski.
The hearing for the lawsuit filed last year by the selectmen (at the time: Carolyn Sundquist, Bill Marcussen, and Lloyd Wood) against Bob McWhirter and me will take place tomorrow, June 12, at 1PM at Carroll County Superior Court. The selectmen have so far paid their attorney, Richard Sager, at least $11,000 in legal fees for this case alone (according to invoices Sager submitted to the town covering November, 2016, to March, 2017). A full accounting of how much taxpayer money the selectmen spent on this lawsuit will be done after the hearing.
The selectmen sued us because we requested to inspect governmental records. Under the New Hampshire constitution and RSA 91-A, everyone has the right to inspect governmental records at no cost. The selectmen, in violation of the law, attempted to charge us a fee to inspect the records. We refused. The selectmen then sued us, forcing us to retain the services of an attorney at considerable expense.
Nowhere in RSA 91-A is it contemplated that a municipal body may say individuals making requests to inspect documents.
The amount of money the selectmen wanted to charge me to inspect governmental records was $6.50.
In the video at the 3:13 mark Selectman Bill Marcussen says, “When you look at what has gone on through various cases that have gone to court it’s clear that the intent is that the costs of the copies to the public cover the actual cost and it’s not intended to cover the time of the town employees that’s involved.”
Yet the selectmen’s lawsuit against Bob McWhirter and me goes into great detail about the amount of labor that would be involved in responding to Bob’s Right to Know request.
The selectmen seek to charge us a fee to inspect governmental records. We have not asked for the selectmen to provide us with copies. Instead we have said that we would use our own equipment to make copies. And yet the selectmen tried to charge us anyway, even though in the video at the 8:42 mark they concede that they cannot charge a fee for someone to use their own equipment to make copies of governmental records.
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.
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.)
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.
Here’s our “Assented to Motion for Leave to File Counterclaim.”
Judge Ignatius of Carroll County Superior Court has granted a Motion to Continue filed by Rick Sager. The hearing in Town of Tuftonboro v. Maxim A.A.L. Blowen-Ledoux and Robert McWhirter has been rescheduled to February 22, 2017, at 1PM. It will be a two-hour hearing.
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.
Sager filed the Motion after Bob and I filed our official response to the selectmen’s lawsuit.
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
I’m getting sued by the Tuftonboro board of selectmen (Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) because I made a document request through New Hampshire’s Right to Know law and the selectmen don’t want to comply with the law.
Now I’ve had to hire an attorney to defend myself, along with my co-defendant, Bob McWhirter, who is also being sued because he made a lawful request to inspect records.
We’re asking for small contributions to help us defray the costs imposed on us by the selectmen’s abuse of power.
Please consider donating $5 at https://igg.me/at/zFnfBtqY90Q.