BRENTWOOD — An e-mail exchange by Derry town councilors following the arrest of former town administrator John Anderson will remain withheld from public disclosure because the discussion involved a personnel matter that is protected under state law, a judge ruled.
Judge Marguerite Wageling decided there was no evidence that Derry town councilors had acted in bad faith, even after the town acknowledged that councilors likely violated the state’s right-to-know law by continuing a discussion about Anderson that began in a nonpublic session on Sept. 11.
“Even assuming the emails constitute an improperly called nonpublic session, and that the remedy of disclosure were within the court’s equitable authority, the court has reviewed the emails and is concerned that disclosure would run afoul of (the law),” Wageling said in a court order.
Kevin Coyle, a local prosecutor and former town councilor, filed a records request for the emails in October 2013 after learning about the email exchange. The town denied Coyle’s request then took the extraordinary step of filing a court petition asking a judge to rule on its decision.
Councilors acknowledged at a March 6 court hearing that they discussed Anderson’s fate in the wake of his arrest on indecent exposure charges.
Anderson ultimately agreed with councilors to leave his job in October. He was paid a lump sum of $45,000, according to town records.
Anderson is headed to trial later this year in 10th Circuit Court in Derry after losing a bid to have charges against him thrown out by a judge. Anderson maintains he broke no law when he invited a DirectTV salesman into his home while in the nude, according to court records.
While the emails were never disclosed publicly, Wageling noted that personnel records were protected under the right-to-know law.
Coyle said he does not question the judge’s ruling since she was able to read the exchange, which was submitted to the court under seal.
“Obviously, there is something there that they want to protect,” Coyle said.
Coyle remained critical of the town taking the matter to court instead of simply rejecting his request.
“I wanted to see how they are communicating and that’s what the law allows,” Coyle said of his request. “I never expected the town to say, ’We are going to take you to court.’”
The email discussion began when Councilor Mark Osborne posed a question to acting Town Administrator Larry Budreau, according to court testimony.
Budreau then forwarded that email to other councilors setting off a discussion that came to a stop when the council chairman reminded the group of their obligations to not discuss such matters over email, according to the town’s lawyer, Brenda Keith.
The judge said unlike many public records disputes, the one between Coyle and the town unfolded in an unusual way.
People seeking access to records usually take their dispute to court for a judge to decide when they have been turned down by a governmental agency. In Derry’s case, after the town provided Coyle with about 13 other documents, they took the matter to court on their own.
Had Wageling ruled in Coyle’s favor, she could have invalidated any decision councilors had made or required the board to undergo training to avoid further violations of the law.
But Wageling noted that before the court hearing, the town “had already required remedial training for the council members involved in the e-mail exchange at issue in this case. The town further explained that no decision arose as a result of the email exchange, so there is no decision to invalidate.”