Town Moves to Block State Executive Agency from Reviewing Town’s Right-to-Know Redactions

In response to right-to-know requests, the Town has had to release large amounts of information. These have been covered in Nottingham Blog articles here, here, here, here, here, here, here, here, and here. These requests have included long sections of redacted text. The existence of these redactions raises the question of whether the Town may have abused its authority to redact information in right-to-know requests. 

The New Hampshire right-to-know laws give two alternatives for citizens aggrieved by governmental failures to follow the right-to-know laws. One is that they can take the Town to court; the other is that they can file a complaint with the state’s Right-to-Know Ombudsman. The Ombudsman is an executive-branch agency that provides expert, impartial, and confidential reviews of whether government agencies properly followed the right-to-know laws and if not, to prescribe remedies. In the case of improperly redacted documents, the remedy would be to release properly redacted documents. 

On behalf of the readers of the Nottingham Blog, I filed a complaint with the Ombudsman about several suspicious-looking redactions made by the Town, requesting that the Ombudsman review these redactions for accurate compliance. 

In response, the Town directed the Town Attorney to intervene with a motion to dismiss the complaint. The Town does not want another branch of government charged with providing expert, impartial investigations of compliance to review the Town’s redactions to ensure that they are in compliance with the right-to-know laws.

The arguments given by the Town Attorney are in brief:

1. RSA 91-A:7’s statement “Any person aggrieved by a violation of this chapter may petition” should be interpreted to exclude me and, by extension, readers of the Nottingham Blog, from petitioning on grounds that there is no reason for us to be aggrieved that the Town may be abusing its redaction authority.

2. The complaint fails to give evidence of non-compliance. In other words, someone submitting a complaint about a redaction must have evidence that what was redacted should not have been redacted. This would require knowing what was redacted.

3. Because I was not the person who filed the original right-to-know request, I lack standing in the case. An overlooked consequence of this is that I could make new right-to-know requests for the same information, creating more work for everybody, to attain this standing.

The Board of Selectmen spent our tax money to have Upton & Hatfield come up with these arguments to prevent a confidential review of their redactions by the Right-to-Know Ombudsman - a review that might reveal that the Town abused its redaction authority and would cause the Town to release to the public the improperly redacted sections of text. 

The above is probably all most people need to know about the situation, but for those fascinated by all of this, below is my rebuttal to the Town’s motion to dismiss followed by photos of the Town’s motion.

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Re: Town of Nottingham - 001: Matter Number 2023-037

I see from the Ombudsman’s letter of December 29, 2023, that the Town of Nottingham had 20 days to respond to my complaint. I have received a response from the Town’s attorney, which is a motion to dismiss. I do not see in the Ombudsman’s letter of the 29th any specific process that I am to follow regarding addressing such a motion. I just see that the Ombudsman has 30 days to address the complaint following the receipt of acknowledgments. 

I wish to respond to Upton & Hatfield’s motion to dismiss. As Upton & Hatfield have changed the matter of dispute from whether the Town properly followed the right-to-know laws in redacting the texts identified in my complaint to making it a matter of dispute about whether I should be allowed to complain about this and whether my complaint is properly constructed, I recognize that the Ombudsman may need additional time to adjudicate this new issue of whether my complaint should be entertained.

I note in the Ombudsman’s letter of the 29th that the parties are urged to come to a mutually acceptable resolution of the matter. It is my hope that this letter - which will be published in the Nottingham Blog - will persuade the Nottingham Board of Selectmen that Upton & Hatfield’s motion to dismiss is an embarrassment and that the board will instruct Upton & Hatfield to withdraw their motion.

If the Town were redacting documents properly, it should have nothing to fear nor object to from having the Ombudsman review those redactions. Instead, the Town has invested considerable effort in attempting to prevent such a review. Such an action  appears to corroborate suspicions that the Town has been using redactions to hide information that should be made public, as the Town does not even wish to consent to allowing the Ombudsman to see the unredacted texts. I believe the public will view this behavior as an embarrassment for the Town. 

In addition, I also believe that when the public sees my rebuttals to the arguments put forth by Upton & Hatfield in support of their motion to dismiss, the public will find those arguments are embarrassing, as the arguments lead to absurdities.

Argument 1: The petitioner is not an aggrieved party

Upton & Hatfield wish for you to believe that it is not a citizen’s right to be aggrieved that their town government is not following the state’s right-to-know law by way of abusing its authority to redact documents. 

Moreover, Upton & Hatfield ignore the fact that I publish the Nottingham Blog . The purpose of the blog is to inform citizens about what is going on in Nottingham government. It has 438 subscribers and popular articles get over 1,000 views, with the additional traffic mostly coming from the town’s Facebook groups. The blog has devoted several articles to information the Town has had to release in response to right-to-know requests. The intent of my complaint is to investigate for the blog’s readers whether several sections of redacted text that have been made public were properly redacted. So, Upton & Hatfield would wish for you to believe that neither journalists nor the public have a right to be aggrieved that the Town may be abusing its authority to redact documents.

Upton & Hatfield also ignore the fact that aggrievement is by definition a state of mind. I say that I am aggrieved. I have demonstrated my aggrievement by investing time, money, and effort into pursuing this matter with the Ombudsman. Upton & Hatfield has no epistemic basis for declaring that my state of mind is different from what I say it is.

Therefore, Upton & Hatfied’s argument that I am not an aggrieved party should be rejected on the basis that it entails absurdities. 

Argument 2: The petitioner failed to present evidence of non-compliance

Upton & Hatfield wish for you to believe that a petitioner must know what information the Town is withholding and present this information as evidence of non-compliance. As the whole purpose of the right-to-know law is to give citizens access to information that would otherwise not normally be made available to citizens, this argument is absurd. It is not possible for petitioners to produce evidence that redacted information - information that by definition they don’t have access to - should not have been redacted. 

The facts that I have presented are specific sections of redacted text released under right-to-know requests in which, based on context or unusual length, raise reasonable suspicions that the Town may have abused its authority to redact.

In addition to these facts, I can now submit additional facts. That Upton & Hatfield have petitioned the Ombudsman to not review these redactions should be taken as evidence that the Town is trying to conceal that it has abused its authority. That Upton & Hatfield needed to resort to absurd and sophistic arguments in that petition should be taken as evidence of the desperation with which it seeks to evade scrutiny about whether the Town is complying with the right-to-know laws.

Therefore, Upton & Hatfield’s argument that no facts have been presented should be rejected on the grounds that it entails substituting a reasonable standard for what entails a “fact” with an absurd standard.

Argument 3: The petitioner lacks standing because he was not the person who filed the right-to-know request

Section 91-A:7 says “any person aggrieved by a violation of this chapter may petition….” “Any person” should be taken as its plain meaning and not the artificially narrow meaning that Upton & Hatfield wish you to believe, in which “any person” is limited to only the person who filed the right-to-know request that initiated the release of information. 

Upton & Hatfield claim that I lack standing on the grounds that I lack “any relationship with the individuals who requested the government records.” This is false. 

Sandra Vilchock and I regularly see each other at Nottingham Board of Selectmen meetings and regularly speak to each other after these meetings. She complains to me about the Town’s mistreatment of her and the Town’s delays and efforts to evade her right-to-know requests. When information from her right-to-know requests has been made public, that information has been extensively covered in the Nottingham Blog. I therefore have a significant relationship with the individual who requested these records.

Upton & Hatfield claim that I “cannot demonstrate an actual dispute with the Town” and that I have “expressed a broad, generalized concern over the nature of the Town’s practice to redact certain information.” These claims are false. 

I have a dispute with the Town. I dispute that it has properly used its authority to redact. This dispute is narrow and specific, concerning the sections of redacted text cited in my petition. I am petitioning the Ombudsman to review the unredacted text of those specific cases to determine whether the redactions made by the Town were warranted under the right-to-know laws and, if any instances were not warranted, to release the texts that had been improperly redacted. 

Upton & Hatfield claim that my dispute is not “capable of judicial redress.” This is false. 

My dispute can be redressed by having the Ombudsman review the specific redactions identified in my petition to see whether the redactions were appropriate and if not, to release the redacted information. 

Upton & Hatfield claim that I “cannot demonstrate any harm suffered.” As a citizen and a taxpayer, I am concerned that I am being harmed through the failure of my town government to comply with the state’s right-to-know laws. I am concerned that the Town has redacted important information that would allow citizens such as myself and the readers of the Nottingham Blog to judge the quality of the decisions made by our Town government and to assess whether Town officials have been telling us the truth about what they have been doing. For example, citizens have already learned through right-to-know requests that an official statement put out by the Board of Selectmen on July 18, 2023 (https://www.nottingham-nh.gov/home/news/announcement-board-selectmen) included a false statement about when the board received initial complaints about the town’s former Fire Chief. Instead, the board was aware of complaints a month earlier and was at that time exploring options for replacing him with an interim. We have also learned that the Town’s former Interim Town Administrator had several testy disagreements with the Town’s former Fire Chief resulting in an ethics complaint against the former Interim Town Manager, who was arguably engaging in a conflict of interest by promoting to the board the use of his employer’s services (Municipal Resources, Inc.) to investigate and to replace the Town’s former Fire Chief. 

I am also concerned about bad legal advice being given to the Town by the Town Attorney. For example, recent right-to-know requests revealed that the investigator hired by the Town Attorney on behalf of the Board of Selectmen charged with investigating the Town’s former Fire Chief was not impartial, as claimed by the Town Attorney, but had a publicly available record on social media of strongly worded political opinions that suggested prejudicial beliefs relevant to the type of some of the accusations made against the Fire Chief. After I made the public aware of the investigator’s social media posts the investigator promptly deleted her account, corroborating that those posts did indeed indicate lack of impartiality. In addition, at Board of Selectmen meetings, several citizens have publicly challenged the quality of that investigator’s work. 

Upton & Hatfield has attested in its motion to dismiss that “the Town acted appropriately in redacting.” If, however, the Ombudsman - a knowledgeable and impartial third party - were to investigate the matter and find that Upton & Hatfield’s claim is untrue, this would give Nottingham’s citizens valuable information for evaluating the services of the Town Attorney. 

Hence, preventing the Ombudsman from assessing whether those redactions were appropriate through dismissing my petition constitutes harm to the citizens of Nottingham, myself included.

Moreover, the Ombudsman should consider the consequences of accepting Upton & Hatfield’s definition of what qualifies as standing. Sandra Vilchock, the petitioner who initiated the release of information, has made many right-to-know requests against the Town. So many that the the Town Administrator has complained to the Board of Selectmen in a public meeting about the amount of work this has caused for her and her staff. As I will be making public the results of my petition to the Ombudsman, if the Ombudsman accepts Upton & Hatfield’s definition as grounds for dismissing my petition, would it not seem likely that Sandra Vilchock would submit a similar petition that could not be dismissed on the grounds proposed by Upton & Hatfield? 

Even were she to choose not to pursue this, all I would need to do to gain this standing that Upton & Hatfield claims I must have is to submit to the town additional right-to-know requests for the same information that has been previously requested. 

Thus the consequences the Ombudsman accepting Upton & Hatfield’s proposal as to what should constitute standing would be a make-work situation that wastes everyone’s time in such a way that the only party that benefits is Upton & Hatfield, as they bill by the hour. 

Therefore, the Ombudsman should reject Upton & Hatfield’s definition of standing as it contradicts the plain meaning of the statute, it is built on false premises, and it leads to absurd consequences.

Conclusion

The Town Attorney has a reputation for responding to complaints brought against the Town by its own citizens with motions to dismiss. 

In the 2021 class action suit against the Town about the public/private status of certain roads, the Board of Selectmen told the public that they wanted the courts to decide the question. Meanwhile, Upton & Hatfield did everything they could to get the case dismissed and to delay it from coming to court. This got citizens so frustrated and angry that they used warrant articles to overturn the Board of Selectmen’s decisions and make the case moot.

Recently two citizens complained to the Board of Selectmen that Upton & Hatfield had filed a motion to dismiss former Fire Chief Jaye Vilchock’s case, on the grounds that although Vilchock had been the town’s Fire Chief for 17 years, because the Board of Selectmen had failed to formally re-appoint him for 2023 Vilchock had no standing in his case to overturn his dismissal as Fire Chief.

As with these previous instances, moving to dismiss my complaint is harmful to the public’s perception of whether their town government is treating citizen complaints with proper respect and fairness. Such motions to dismiss appear to be self-serving on the part of Upton & Hatfield,  a waste of taxpayers’ money, and appear punitive against citizens who feel they must avail themselves to the courts or the Ombudsman to address their concerns that their Town government is not following the law.

In this case, where all that is being requested is that the Ombudsman - a member of the executive branch of state government - provide an impartial third-party analysis of specific redactions, a reasonable observer would infer a Town government that resisted such a request was doing so because they had failed to comply with the right-to-know law and did not wish their failures to come under the scrutiny of a knowledgeable, impartial third party. 

I therefore urge the Ombudsman to reject Upton & Hatfield’s motion to dismiss and to proceed with investigating the targets of my complaint to determine whether the specific redacted passages of information released under right-to-know requests contained information that should not have been redacted and if so, to release that information to the public. 

I correspondingly urge the Nottingham Board of Selectmen to consider that the motion to dismiss is harmful to the Town’s reputation and is contrary to the interests of the town’s citizens. The board should therefore instruct the Town Attorney to withdraw the motion.