Derry councilors spar about whether e-mails on ex- administrator are public
BRENTWOOD – Derry's Acting Town Administrator Larry Budreau and Councilor Mark Osborne took to the witness stand for opposing sides on Thursday in a court battle about whether e-mails written about former Town Administrator John Anderson are exempt from disclosure under the Right-to-Know law.
The town of Derry acknowledged publicly for the first time on Thursday that the e-mails contain a discussion about Anderson in the wake of him being charged by state police with two counts of indecent exposure.
Osborne had sent an email to Budreau the day after a Sept. 11 non-public session about a matter concerning Anderson. Budreau then forwarded that e-mail to the rest of the town councilors, which started a discussion, according to Brenda Keith, the town's attorney.
"The town of Derry takes very seriously its obligation under Right to Know law," Keith said. "This wasn't an intentional violation."
Osborne testified on Thursday that when he e-mailed Budreau about Anderson following the nonpublic meeting, he did not intend for the exchange to be deemed confidential.
Kevin Coyle, a former town councilor, complained to Judge Marguerite Wageling that after learning about the e-mail exchange, he filed a public Right-to-Know request.
Coyle was denied access to the e-mails, along with an index of the records, and was later handed a copy of court action initiated by the town contesting his request.
"They choose to take me to court and spend the town's money," he said.
Coyle, who represented himself in court, maintained that the town did not adhere to the five day deadline to respond to his records request mandated by state law. He said the town gave him 13 documents about two weeks later, but they did not include the e-mails that he sought.
Budreau, while testifying on behalf of the town, said he was not sure exactly when he replied to Coyle's request.
"I don't remember the days," he testified. "I suspect I responded to you sooner."
Keith said the town has an obligation to protect personnel matters, and acknowledged that the town officials signed a confidentiality clause with Anderson when he finally parted ways with the town in October.
"It exposes the town to a risk of liability," Keith said.
Anderson signed a separation agreement with the town and is battling his misdemeanor charges in 10th Circuit Court in Derry.
Wageling, who reviewed the e-mails under court seal, said on Wednesday that she is taking the matter under advisement.
She asked Keith if she believes the e-mails contents would still be private if it were part of a discussion that unwittingly happened at a public meeting.
Coyle said he agreed that the e-mails could not be deemed private under the law.
"This is a conversation that happened outside of the meeting and wasn't properly sealed therefore making it a public conversation," he said. "Unfortunately, Mr. Budreau forwarded it to everybody and made it more of a public conversation."