Judge Reviewing Questioned E-Mails in Derry Lawsuit

A Rockingham County Superior Court judge is examining documents in the Town of Derry’s effort to keep a series of e-mails private.

Judge Marguerite Wageling heard testimony Thursday, March 6, from Kevin Coyle, the resident requesting the documents under RSA 91:A, and Brenda Keith, attorney for the Town of Derry and Acting Town Administrator Larry Budreau. The town is taking the matter to court rather than allow Coyle access to the e-mails.

Coyle is requesting copies of e-mails from July 1 to Oct. 31, 2013, with a special interest in e-mails exchanged after a meeting Sept. 11.

Wageling said, “I have a sense of what the documents are. In one sense, it gives me a vantage point but I don’t know what went on behind the scenes.”

In her opening statement, Keith said, “We have the documents under seal. It is a personnel matter. The Town Council met in a properly-convened nonpublic regarding a Town Administrator who was already on leave.” She was referring to former Town Administrator John Anderson, who was placed on leave July 12 and terminated his employment at the end of October.

Keith said, “On Sept. 11, the Town Council, Larry (Budreau) and labor counsel Tom Clausson met in nonpublic session. The next morning a new member of the Council initiated a dialogue through e-mail. The document only went to Larry, but at some point Larry forwarded it to the entire Council. Therein lies the concern.”

The issue, Keith said, is that the exchange could be viewed as a continuation of the nonpublic session, without having been properly “noticed.”

But Chairman Michael Fairbanks caught up with the e-mail chain on Saturday, and cautioned the Council against any further dialogue. “According to RSA 91:A, this could be considered an improper meeting,” Keith said.

She said the issue was dealt with by Council members attending a class on RSA 91:A.

“The Town of Derry takes its obligation to New Hampshire’s Right to Know Law seriously,” Keith said. She added, “Nowhere in the statute does it provide a remedy that changes an otherwise nonpublic document to public.”

Coyle, who is an attorney and a former Town Councilor, asked for witnesses, pointing out, “Without witnesses it is hard to establish the burden of proof.”

Wageling said the difference was, “I have these documents. Under a normal situation, we would need witnesses. But these documents tend to speak for themselves.”

But, she added, “This is as if I’d turned on a movie halfway through.”

Keith expressed concern about “inadvertent disclosure” on the witness stand, to which Wageling responded, “We can caution witnesses not to speak directly to the content.”

The first witness was Budreau. Keith asked him, “Without going into detail, do these involve a personnel matter?” When Budreau said yes, Keith asked, “Does it involve potential discipline?”

“Yes,” Budreau said.

Coyle asked Budreau, “Did you indicate that these are personnel documents?”

“I indicated that the documents referred to personnel matters,” Budreau said.

Councilor Mark Osborne, who is also an attorney, was also called as a witness. Osborne said he had sent a document to the Acting Town Administrator, who copied it to the rest of the Council.

Coyle asked, “Did you intend to make a personnel decision?”

Osborne said he had not.

“Did you intend this to be a public document?” he asked. Osborne said he had, and that his correspondence with Councilor Neil Wetherbee was also intended to be public.

Coyle reminded Osborne of the nonpublic the day before. Those minutes were properly sealed, he confirmed, adding, “But this was not.”

Keith said the town is duty-bound to protect personnel records until the employee waives the sealing and wants it made public.

“The town ultimately reached a separation agreement with Mr. Anderson which contained a confidentiality clause,” she said. “Violating the clause exposes the town to the risk of liability.”

She said, “There was no willful or purposeful violation of 91:A and no bad faith involved.”

But Wageling asked Keith to imagine a hypothetical situation. “Suppose instead of e-mails, this was a Town Council meeting,” she said. “One or two Councilors showed up, the other Councilors came in, one or two of them began talking about this topic, and a forum developed with all of them talking. And nobody thinks, ‘We should take a vote and go into nonpublic.’”

With “Monday morning quarterbacking,” Wageling said, they would look back and realize they should have gone into nonpublic. “But the horse would already be out of the gate,” she said. “Under those circumstances the horse would have run the race, the damage be done. How is this different?”

Keith responded that during the e-mail exchange, several Councilors jumped in and said they should not be discussing the matter in that format. “If they were standing at the podium in a Town Council meeting, that would have opened them up to liability,” she agreed.

And they would have been removed from office, Keith said.

Coyle agreed. “If it happened outside a meeting, and it wasn’t properly sealed, that made it a public conversation,” he said.

But Wageling had words for Coyle too. “Let’s say you’re the employee,” she said. “Wouldn’t you want RSA 91:A to protect your rights? Wouldn’t you want someone to protect your privacy?”

Wageling said she would review the situation and issue a decision in the near future.