For those following the Steinman vs Tuftonboro lawsuit, please see the attached documents.
For those following the Steinman vs Tuftonboro lawsuit, please see the attached documents.
There will be a hearing on Friday, December 1, 2017, at 10:30AM at Carroll County Superior Court for the lawsuit that Dr. Theodore and Carol Steinman have brought against the town of Tuftonboro.
In 2016, Carolyn Sundquist, who was the chairman of the selectmen at the time, told the Steinmans that they could place boulders on their property along the edge of Brown Road. The goal of placing the rocks was to stop people from accessing Lower Beech Pond with boat trailers. Carolyn acted without the approval of the rest of the board of selectmen, but the Steinmans followed her directions anyway and placed boulders in the town’s right of way. The selectmen — included Carolyn — then told the Steinmans to move the boulders. When the Steinmans refused to move them, the selectmen — Carolyn having since left office — instructed the Road Agent to push the boulders farther onto the Steinmans’s property, out of the town’s right of way.
The Steinmans dispute the location of the right of way and allege that the town trespassed on their property.
Richard Sager, of Sager & Smith in Ossipee, is representing the selectmen. A review of his available invoices show he has billed the town at least $3,568.75 for the Steinman lawsuit.
Carolyn Sundquist, then the chairman of the board of selectmen, mocked my concerns about traffic safety on Route 171, an August 3, 2016, email reveals.
Selectman Bill Marcussen had suggested that the lanes on Route 171 (Maintain Road) could be narrowed. Route 171 is a state road, so the selectmen would not have had the final decision about the matter in any case. In response to Bill’s suggestion that the road be narrowed, I emailed the selectmen and asked them to convey to the state my concerns: Mountain Road is already narrow, and I’ve experienced several nearly head-on accidents there when oncoming cars crossed the yellow line on blind curves or hills.
Instead of taking my concerns seriously, Carolyn seems to have mocked them, joking in an email to the selectmen’s administrative secretary, Karen Koch, that I sounded “like a menace on the road” and that they “should see if he has a license.”
I don’t mind that Carolyn made a joke, but I know that I’m not the only one in town to have almost had an accident on Route 171.
Carolyn Sundquist knew that Tuftonboro selectmen could not legally charge an hourly fee for responding to Right to Know requests and that the town could charge only for “copy/paper fees.” She knew this long before she, as chair of the selectmen’s board, initiated a lawsuit against Bob McWhirter and me in an attempt to charge us for inspecting government records. The lawsuit would eventually cost the taxpayers about $20,000 (and counting — I’ll update you next week).
In a February 2016 email the selectmen’s administrative secretary, Karen Koch, wrote to Carolyn: “In terms of town’s [sic] charging an hourly rate for any research to be done, it is illegal to do so.” Karen wrote that this was based on a conversation she had had with Margaret Burns of the New Hampshire Municipal Association, and that “the only things that towns can legally charge for are copy/paper fees.”
Indicating that she had read Karen’s email and understood its content, Carolyn replied on February 27, 2016: “Thanks for checking with NHMA regarding minutes and charging for research. Would you please redo the sheet that list [sic] the charges for copies in a compatible format for inclusion in the copy policy we just approved. Note the changes regarding emailed copies and whatever else would need explanation.”
Carolyn’s own words show that she clearly understood no fees could be charged for “emailed copies,” but she (along with the other two selectmen, Lloyd Wood and Bill Marcussen) attempted to charge Bob McWhirter and me 25 cents per page to inspect emails. When we refused to pay that illegal fee (given the number of emails, it would’ve amounted to thousands of dollars), the selectmen sent sheriff’s deputies to our houses on a Sunday morning to serve us with a lawsuit.
As a result, we were forced to hire an attorney, a great expense, and to defend ourselves not only in Carroll County Superior Court but also in the court of public opinion. Just last week, the selectmen’s attorney, Richard Sager, publicly slandered Bob McWhirter in a Facebook post on the Tuftonboro Free Speech Forum Facebook group, which any resident of Tuftonboro can join: “Bob tags along behind Max like a little puppy dog, impugning my character by suggesting I would ever consider hiding ‘SECRET’ information. Get a life.” Sager then blamed Bob and me for the $20,000 that the selectmen paid Sager for the lawsuit and asserted that producing the emails was a “considerable expense to the town.” This is false, and Sager knows it’s false. Judge Amy Ignatius ruled on August 8 that there was no cost to the town for producing the emails.
The above-mentioned email, which the selectmen finally turned over to me last week, strongly suggests that Carolyn (and maybe Lloyd and Bill as well) acted in bad faith when suing us: They were attempting to collect a fee that Carolyn knew to be illegal.
Carolyn, Bill, and Lloyd are responsible for wasting around $20,000 in taxpayer money. Bob and I exercised our constitutional and statutory Right to Know, and we defended ourselves when the selectmen launched an abusive lawsuit against us.
“These lawsuits are an absurd practice and noxious to open government.” That’s how the Associated Press quotes University of Kansas journalism professor Jonathan Peters, speaking about a troubling trend in recent years of government bodies suing citizens who seek disclosure of public documents through open-records laws. You can read the whole article at AP (“Governments turn tables by suing public records requesters”).
I know all about these types of absurd lawsuits. Last year the Tuftonboro board of selectmen (at the time: Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) sued me and Bob McWhirter when we requested to inspect government records. They spent around $20,000 (and counting) in a vain attempt to charge us $.25 per page to inspect the records, even though New Hampshire’s Right to Know law states that “no fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” The selectmen’s attorney, Richard Sager, argued in court that the law doesn’t make sense because, if read literally, it meant that the selectmen couldn’t charge us a fee. And they wanted to charge us a fee.
They lost their lawsuit when Carroll County Superior Court Judge Amy Ignatius ruled that they couldn’t charge us a fee. But as the AP quotes Mike Deshotels in its article, “You can lose even when you win.” Deshotels was sued by the Louisiana Department of Education when he requested school enrollment data. The DOE lost in court, like the Tuftonboro selectmen, but Deshotels incurred legal costs, like Bob and me, defending himself from an attack on his right to know what his government was doing.
These types of abusive lawsuits are happening all over the country, according to the AP. But in Michigan, the state House of Representatives unanimously (108–0) passed a bill this spring that would prohibit government bodies from suing citizens who are requesting documents. The bill needs to be passed by the Michigan Senate before becoming law.
Carolyn, Lloyd, Bill, and Chip spent $20,000 of your money in an effort to make it more difficult to get access to public records. Would they have done that if it was their own $20,000? It’s easy to spend other people’s money.
New Hampshire should make it illegal for government bodies to sue citizens who are requesting documents.
What could you do with $20,000? This past December, the Tuftonboro board of selectmen (at the time Carolyn Sundquist, Bill Marcussen, and Lloyd Wood) decided to spend what would end up being almost $20,000 of Tuftonboro taxpayers’ money on attorney fees paid to Richard Sager to pursue a lawsuit against Bob McWhirter and me for the “crime” of having made Right to Know requests to inspect government records. Our right to know what government officials are doing on our behalf is guaranteed by the New Hampshire constitution, and codified by RSA 91-A (the Right to Know law). I have that right to know, Bob has that right to know, and you have that right to know.
Rather than comply with the law, the selectmen chose to file a lawsuit against us — an action that is hard to interpret as anything other than an attempt to intimidate us and inflict personal financial harm. We are very grateful to the many fellow Tuftonboro residents who contributed to our defense fund, and also to our skillful attorney, Jim Cowles of Walker & Varney. The selectmen, bizarrely, filed a motion with the court to force us to reveal the “name, telephone number, address, and email address” of each of our benefactors. The court rejected this motion. Why would the selectmen want such personal information? I can think of no good reason.
The selectmen say that they were always willing to give us the government records — the emails. They just wanted to charge us a fee for them, even though the law states very clearly that “no fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” Sager argued in court — unconvincingly — that this sentence in the law doesn’t make sense, because if read literally, it means the selectmen could not charge us a fee. Judge Ignatius agreed that the law, if read literally, means that “no fee shall be charged,” and she ruled on August 8 that the selectmen cannot, in fact, charge us a fee.
The reason this is important is that emails, being electronic, can contain a large number of pages. The selectmen wanted to charge us 25 cents per page, which would quickly turn into thousands of dollars. Records that you can inspect only after spending thousands of dollars are essentially records that you — and most people — will never be able to inspect.
Bob and I requested to inspect Carolyn Sundquist’s official emails because we and others in town suspected that she was making decisions about town business on her own (in violation of RSA 41:8), or with the other two selectmen but outside of public meetings (in violation of RSA 91-A). Our suspicious were confirmed when Guy Pike obtained 40 pages of emails concerning the Brown Road boulder fiasco. Those emails revealed that Carolyn had, apparently without the knowledge of the other selectmen, given Ted and Carol Steinman permission to block access to Lower Beech Pond, which is a state-own public body of water. The Steinmans followed Carolyn’s instructions and spent money placing boulders in the town’s right-of-way along the road. The current board then had to authorize the road agent to remove those boulders, which cost the taxpayers around $800. The Steinmans are now suing the town, disputing the boundaries of the right-of-way and alleging that the road agent trespassed. Perhaps they will win, or perhaps the town will win, but either way, it will probably cost taxpayers at least another $20,000 in fees to Richard Sager. All of this is due to Carolyn’s unilateral actions.
It makes you wonder what is in those emails Bob and I requested. Why were Carolyn and Bill and Lloyd willing to spend so much taxpayer money to make it nearly impossible to read them?
We still don’t know what’s in the emails. Even though Judge Ignatius ruled that the selectmen could not charge a fee for the electronic copies of the emails, and after eight months of legal entanglement, and almost an entire year after Bob first made his Right to Know request, the selectmen (now Lloyd Wood, Bill Marcussen, and Chip Albee) have, incredibly, still failed to turn over any of the emails that are in question.
Bob made his Right to Know request on October 17, 2016. The selectmen must comply with the New Hampshire constitution, with the Right to Know law (RSA 91-A), and with Judge Ignatius’s order. They must immediately — 11 months late — give us access to Carolyn Sundquist’s official emails.
The selectmen have lost their lawsuit against Bob McWhirter and me. Carroll County Superior Court Judge Amy Ignatius issued her decision on August 8, finding that the selectmen cannot charge us a fee to inspect governmental records, whether they be electronic or paper. This is not an earth-shattering decision. I don’t mean to disrespect Judge Ignatius’s judicial ability, but the law states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records whether they be paper, electronic, or other format.” I honestly have no idea why the selectmen thought that meant they could charge us a fee to inspect governmental records.
But they gave it the old college try, anyway, and spent almost $20,000 of taxpayer money in the process.
The board at the time was Carolyn Sundquist, Bill Marcussen, and Lloyd Wood. Carolyn Sundquist has since left the board.
The selectmen have 30 days to appeal the decision.
David Taylor of Right to Know New Hampshire, summarizes the decision here:
The Town of Tuftonboro, N.H. lost its effort to charge $0.15 per page to redact emails provided electronically. Judge Amy Ignatius in Carroll County Superior Court ruled that redacting emails electronically does not substantively change their format nor does it incur actual costs that can be charged. The town had not sought to be reimbursed for the time it takes employees to redact the emails, and they provided no evidence of other expenses.
Unlike most Right-to-Know Law cases where a citizen sues for access to records or meetings, in this case the Town of Tuftonboro took 2 of its residents to court. The town basically wanted the court to declare whether the town could charge for redacted records. Since the citizens had to respond to the preemptive lawsuit by hiring a lawyer, they sought help from supporters. The town sought for details about those supporters, but the court also denied that request. In spite of the burden imposed by the town on the citizens, the court did not award attorney’s fees or court costs because the issue of redaction costs was not settled law and therefor the town did not “know or should have known” it was improperly denying access. The town has 30 days until September 7, 2017 to appeal. The full court order is available here.
Patrick Harvie of Standish, Maine, doing business as HCCI in Derry, NH, has received $2,281.25 from Tuftonboro taxpayers in exchange for his “expert” testimony last month about “metadata” at the hearing for the selectmen’s lawsuit against Bob McWhirter and me (Tuftonboro vs McWhirter/Ledoux). The selectmen sued us because we made Right to Know requests for public documents.
The legal fees that taxpayers of Tuftonboro have paid to the selectmen’s attorney, Rick Sager of Ossipee, for this case currently total $16,336.12. Harvie’s payment, made on July 11, brings the total amount of taxpayer money expended by the selectmen in their lawsuit to at least 18,617.37.
The selectmen tried to charge Bob and me a fee to inspect governmental records, even though the Right to Know law (91-A) states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
The amount the selectmen tried to charge me to inspect documents was $6.50. They have spent nearly 3,000* times more than that so far on this lawsuit.
When prompted by Sager in court, Harvie boasted under oath that he knows “just about everything about how the internet works.” Even so, Judge Amy Ignatius rebuked him for using a monitor that she could not see. “Can I ask, since I can’t see any of it — I know there’s something up on the screen, but it’s not readable from here. …For my sake, and the sake of the record, if you want to point something out, a phrase like, ‘as you can see,’ doesn’t do much for me because I can’t see anything. So you need to really explain what it is.”
Harvie’s testimony was further made irrelevant when Jim Cowles, representing Bob and me, objected to his testimony on the grounds that neither Bob nor I had requested any metadata and did not contest that metadata exists. Judge Ignatius agreed that the testimony about whether metadata exists was unnecessary and asked that Sager move on. Seeming flustered, Sager then said, “Yes. K. So, uh, I guess your presentation is over.”
*The total they have spent is $18,617.37. What they wanted to charge me was $6.50. 2,864.21 * $6.50 = $18,617.37.
The selectmen have paid Richard Sager, of Sager & Smith in Ossipee, NH, $16,336.12 in taxpayer money from the residents of Tuftonboro to sue Bob McWhirter and me for the supposed crime of exercising our right to know under RSA 91-A and the New Hampshire Constitution, a review of Sager’s invoices reveals. The $16,336.12 that the selectmen handed over to Sager does not include charges for an “expert” witness, Patrick Harvie, whom Sager brought in at $125 an hour to explain to the court that emails have metadata, a fact we never contested and that was irrelevant to the case.
In November, 2016, I made a Right to Know request to inspect some emails. The selectmen attempted to charge me $6.50 to inspect the emails, even though the law unequivocally states, “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.” When I refused to pay the $6.50, the only amount they ever tried to charge either Bob or me, the selectmen (at that time Carolyn Sundquist, Bill Marcussen, and Lloyd Wood) sent a sheriff’s deputy to our doors on a Sunday morning to serve us each with a lawsuit: Town of Tuftonboro vs Bob WcWhirter & Maxim A.A.L Blowen-Ledoux. (I have a weird name, so sue me. Wait, no; don’t. That’s just an expression!)
$16,336.12 for $6.50.
Think that one through the next time Selectman Bill Marcussen says he has a fiduciary responsibility to the town.
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.