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Commissioners sued over alleged right-to-know violations

COUNTY COMMISSIONER DAVID BABSON raises his hand to ask a procedural question during a hearing in Superior Court. The hearing was on a temporary injunction to prevent the commissioners from destroying any county records. (Courtesy photo) (click for larger version)
January 23, 2014
OSSIPEE — Ed Comeau of Brookfield and owner of the website governmentoversite.com is once again taking the Carroll County Commissioners to court, alleging their violation of the state's right-to-know law.

Through his attorney, Comeau has filed a 23-page petition with Carroll County Superior Court and won an injunction that prevents the commissioners from destroying any County records until the matter is resolved in court. Judge Stephen Houran also agreed with Comeau's attorney, Seth Hipple, to set aside a full day to hear the case. Hipple said though a full day might sound excessive, the issues are complicated and he expects to call four or five witnesses. Houran said a full day is consistent with the pace right-to-know issues usually move at.

The petition points out that since 2011 Comeau has attended, and videotaped, nearly every county commissioner's meeting. Comeau observed that meeting minutes were not being prepared or posted according to state law requirements. Comeau alleges the commissioners illegally entered into non-public meeting sessions by not stating publicly the reason for the non-public session and by not taking a public roll-call vote to enter into the sessions. Disagreement among the commissioners was frequent over whether or not votes were taken to keep the non-public meeting minutes sealed and out of public view.

Comeau also observed that public document requests from fellow members of the media and members of the public were not being answered within the timeframe outlined in the N.H. Right-To-Know law and sometimes were not being answered at all.

After about two years of observing "mounting frustration," Comeau hired Attorney Hipple and filed a right-to-know request. In the request, he asked for full, un-redacted copies of all 2008 to present non-public meeting minutes and asked that any of those meeting minutes that had not been properly sealed be released immediately.

Now, six months later, Comeau and Hipple allege the commissioners still have not complied with the request for records. The petition states that the pair has done extensive research on their own, about 15 hours' worth, just to review January through September 2013 tapes and public minutes.

Despite many of the worst years of non-compliance with the right-to-know law occurring prior to 2013, the focus of the petition is on 2013. The pair reserves the right, however, according to the petition, to bring forth future petitions addressing prior years.

Among some of the reasons the commissioners have not complied with the record request, according to the petition, is: there are no minutes at all for four meetings in 2013; they failed to make eight sets of public meeting minutes available; and 11 sets of non-public minutes they refuse to release despite no record of a recorded roll call vote.

The petition asks the court to make an order on eight counts. Count one asks that the commissioners be ordered to post all public meeting minutes. Count two asks that they post all minutes from non-public sessions that were not entered into properly. Count three asks that they post, without redaction, all non-public minutes that were not sealed by lawful vote within 72 hours. Count four asks that the commissioners remove all redactions they have made to minutes. Count five asks that the commissioners be ordered to comply with the law going forward.

Count six could be the most interesting as it asks the court to invalidate all decisions the commissioners made in non-public sessions if those sessions were not entered into lawfully. Non-public sessions, if entered into for the specific reasons outlined in state law, can include such discussion as contract negotiations, hiring and firing of employees, employee discipline matters, acquisition of land, and "discussion of matters that are likely to adversely affect the reputation of a person other than a member of the board."

Count seven and eight ask that the County be ordered to pay Comeau's legal fees and costs related to bringing the suit to court. Further, that the court order that the commissioner's be held individually responsible for paying a civil penalty and to reimburse the County for its legal fees to settle this matter.

"The defendants have acted in bad faith. They have the experience to know better and have had the time to correct their errors. Instead, they have refused to comply with the statute, and have even attempted to cover up violations," Hipple wrote in the petition.

All three county commissioners David Sorensen, David Babson, and Asha Kenney appeared Jan. 21 as Judge Houran confirmed the temporary order that the prevents the county from destroying any county records. At that hearing, Hipple said the commissioners had a non-public meeting Jan. 8 and during that meeting they discussed the destruction of county records, despite saying they were going into non-public session to discuss "personnel" matters.

Another matter that may make its way to the courtroom, if Comeau and Hipple don't get the response they are looking for, is the commissioner's refusal to release the investigation of the Dec. 2011 county jail escape. This reporter had filed a right-to-know request asking for a copy of the report and received the same response that Comeau did when he filed a request asking for the same report that due to security reasons the report is not being released. Hipple, in a letter to commissioners, said this is not a valid reason to refuse to release public documents under the state's right-to-know law.

He argued further that if the commissioners believe the records are exempt from disclosure they have to cite specific statute or case law that gives them authority to withhold the information.

As of press time there had been no response from commissioners about this request but Hipple had some stern words for the commissioners in a letter to them, "I am frankly astonished that, even after all the County's and Commissioners' violations of the Right-to-Know law have come to light over the last few months, you have still not bothered to educate yourself on the Right-to-Know law's provisions and still treat Right-To-Know requests with such flippancy. I hope that we will be able to resolve this matter without further litigation. I suggest you consult with counsel and put systems in place to meet your statutory obligations to the public under NH RSA 91-A."

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