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December 18. 2012 11:44PM

Lawyers argue over Liquor Commission storage documents

CONCORD - Lawyers representing Law Warehouses of Nashua and the state Liquor Commission squared off in Merrimack County Superior Court on Tuesday in a tense hearing over the Nashua company's right-to-know petition.

Law was one of five unsuccessful bidders for a 20-year contract to provide warehouse services to the liquor commission, which announced in November it had awarded the contract to Exel Inc. of Westerville, Ohio, which is owned by the German company Deutsche Post DHL.

The Nashua company, which has held the contract since 1997, soon after filed its petition seeking full disclosure of the contract with Exel along with several related documents its attorneys maintain are part of the contract.

Concord attorney Christopher Carter, representing Law, tried to convince Merrimack County Superior Court Judge Richard McNamara that Exel may have been entitled to some protection from disclosure while it was a bidder, but lost that protection once the company signed a contract with the state.

"As a public contract, this material must be produced and is not subject to exemption," he said.

Lawyers for the Liquor Commission said that much of the material Law is seeking has already been released, with some portions blacked out. Those portions contain personal or proprietary information that is legally exempt from disclosure requirements in the right-to-know law, according to Lisa English, a senior assistant attorney general appearing on behalf of the Liquor Commission.

"There is no statutory provision that says all public contacts become public documents with no exception," she said.

After a two-hour hearing, McNamara gave attorneys until Dec. 27 to produce memorandums of law to support their arguments. He challenged Carter to cite previous court rulings supporting the notion that privacy protections that exist while vendors are negotiating for a contract are forfeited once a contract is signed with a public entity.

"If you win that, Mr. Carter, you win everything," he said, prompting English to reply, "If Mr. Carter loses that argument, I hope you will dismiss the case."

Also on hand at the hearing was Manchester attorney Nicholas Holmes, representing Exel. At one point in the hearing, Carter alluded to Holmes as the "fox in the henhouse," and charged that Exel and the Liquor Commission were working together to decide which information should be released.

Carter and his associate, Suzan Lehmann, claimed they could not get any response from the Liquor Commission until they took legal action, which was challenged as "untrue" by Liquor Commission attorneys.

Lehmann then described a conversation with Holmes in which he allegedly told her, "You can get to see some things, but there are things we don't want the public to see."

Judge McNamara was attempting to wrap up the hearing when Holmes insisted on responding, saying, "I disagree with Ms. Lehmann's representation of what I said to her."

At stake is a contract that, over its lifetime, is worth millions of dollars, Carter said as the hearing got under way. "The original proposal by Exel bears little resemblance to the contract that was awarded," he said, "so we need to see how the proposal changed ... The public has a compelling interest in seeing the ground upon which this contract was awarded."

The state has been releasing information, but in a piecemeal fashion and with portions redacted.

"The commission should not be letting Exel dictate what portions of a public contract are released," Carter said.

Holmes said Exel has produced 1,600 pages, with only 13 documents redacted, three entirely and others in part.

"The negotiations that have been happening between Exel and the state are not what the right-to-know statute intends," Carter said.

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Dave Solomon may be reached at dsolomon@unionleader.com.


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