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Wakefield mulls e-mail access policy


January 02, 2010
WAKEFIELD — A budget committee member's quest for e-mails between town officials has prompted selectmen to consider drafting a town policy that would dictate what e-mails can become a public document.

Selectmen's chair Mark Duffy brought up the idea of an e-mail policy during the board meeting last week. He said because the town's staff has been dealing with numerous requests for e-mails under the Right to Know Law (RSA-91A), selectmen ought to make a policy clarifying how to handle such requests.

"E-mail has basically replaced phone calls… What's happening now is people are considering these town records," said Duffy. "We should set the tone on how we want to handle this."

After Duffy suggested creating a policy, budget committee member David Mankus stood up and said the Right to Know Law requests came from him. Mankus provided a reporter with a printed record of his e-mail exchange with town attorney Richard Sager pertaining to his search for town e-mails.

On Dec. 10, Mankus asked the town to produce the following records under the New Hampshire Right to Know Law: E-mails "sent or received by the planner to or from the town administrator, the present or past members of the planning board and the town attorney between March 1 and April 30, 2009." Earlier in December, Mankus' request for e-mails was much broader, including more town officials and going back to 2006. But Sager urged him to limit the scope of the request. Sager also denied Mankus' request to read e-mails directly from town employees' computers, including the computer used by former town planner Kathy Menici.

Mankus, who is also a planning board alternate, said he wants the e-mails because they may provide background information on several bills Sager charged the town.

Two bills from April, totaling $82.50, regard a telephone conference with Menici about alleged misrepresentations in a handout he and Jerry O'Connor wrote for an advisory group.

The advisory group was exploring cost estimates of finishing the upstairs of the public safety building, which houses the police and fire departments. Several of Sager's bills for phone conferences also refer to related e-mails.

"I'd like to see behind the curtain and find out what government is doing," said Mankus who wondered why Menici didn't call him instead of the lawyer regarding the handout.

Duffy added if e-mails were to be included in the public record, he'd be more inclined to use the phone. But he also said it would be "obviously inappropriate" for the board to use electronic communication to make decisions out of the public eye. Duffy said he normally uses e-mail to get copies of an agenda or to obtain copies of letters.

Mankus said he feared transparency would be lost if officials began using the phone in an attempt to circumvent the law. But Mankus agreed with Duffy about the need for a policy.

"As a citizen, I'd rather see the business conducted on the record, when there's a phone call there's no record," said Mankus.

In response to the Dec. 10 request, Sager states that Mankus cannot have e-mails between him and town officials because they are covered by attorney-client privilege. Further, there are no e-mails regarding the town administrator, the town planner, or the planning board that fit within Mankus' "parameters."

"I cannot provide you with documents that simply do not exist, or to which you are not entitled to under the law," wrote Sager. "You appear to be operating under the mistaken impression that you have an unbridled right to see and get copies of whatever may end up on or be sent from a computer under the control of the town, or any member of a board, or of an employee. This is not the current status of the law in New Hampshire as I understand it to be."

But Mankus' said his reading of the New Hampshire Attorney General's memo on the Right to Know Law is that the e-mails represent public records that aren't specifically listed as exempted from disclosure. On Monday night, Mankus said his request had not been granted.

In other selectmen's business:

• Duffy opened four bids for legal services during last week's meeting. Bids were as follows, according to draft minutes: Union Law Offices, of Union, $500 per month retainer plus $125 per hour; Donahue, Tucker, and Ciandella, of Exeter and Portsmouth, $2,500 per month retainer plus $100 to $160 per hour; Sager Law, of Wakefield, (option 1) $750 per month retainer plus $165 per hour (option 2) no retainer $175 per hour; and Ransmeier & Spellman, of Concord, no retainer $175 per hour for litigation and $150 otherwise. Selectmen have used Sager Law for many years.

• Duffy reported four applicants have applied for a part time planner position being offered by the town. Selectmen are also looking at other candidates to provide the planning board with technical assistance for the period before the new planner is hired.

• The New Hampshire Department of Environmental Services has told the town to leave the bushes on Bonnyman Road alone. Last spring, town workers cut the bushes back not realizing the bushes were there for erosion control.

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