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Court rules Tuftonboro can't charge for redacted records

Union Leader Correspondent

August 14. 2017 8:07PM
Tuftonboro Town Hall (John Koziol/Correspondent File)

OSSIPEE — A Right-to-Know suit between the town of Tuftonboro and two local residents has concluded with a judge ruling the municipality cannot charge a fee for providing electronic email files — even if its intention was to recover its costs for removing email addresses to guard against potential hackers.

In October 2016, Robert McWhirter initially requested all emails from five town accounts pertaining to the Tuftonboro Board of Selectmen. He later narrowed his request, seeking emails to and from then-Selectman Carolyn Sundquist between March and December 2016.

In November 2016, Max Blowen-Ledoux filed a Right-to-Know request seeking emails between five separate town email accounts as well as email accounts associated with a weekly newspaper from January to mid-November 2016.

In December 2016 — five days before McWhirter revised his Right-to-Know request — the town filed a declaratory judgment action seeking the court’s direction on how it should respond.

Town Attorney Richard Sager initially estimated as many as 11,000 emails were involved.

The town had argued it should be able to charge 25 cents per page because municipal staff must remove personal identifiers and strip out metadata, information hackers could use.

The defendants disputed the number of emails cited by the town and argued the potential $2,750 fee was not only excessive but obstructionist.

In February, they filed a counterclaim arguing that municipal officials had violated the Right-to-Know law. They asked the court to award them attorney’s fees, legal costs and to consider ordering selectmen to undergo remedial training on the Right-to-Know law.

Selectmen Bill Marcussen, Lloyd Wood and Sundquist were named in the counterclaim. Sundquist left the board while the action remained pending.

Judge Amy Ignatius earlier ordered that the requested records be preserved until the case was settled.

Ignatius declined to award the plaintiffs legal costs or attorney’s fees, noting that the town had agreed to produce the emails after evaluating whether they contained confidential information that would have to be redacted.

The judge also ruled that the town did not violate the town’s Right-to-Know law because officials from the start agreed to make the documents available.

As a result, the judge found no basis to award legal costs or attorney’s fees to the defendants or to order remedial training for selectmen.

During a July 12 bench trial, the testimony centered on metadata and the process of its removal.

The town provided no evidence of actual costs incurred in preparing the requested documents other than employee time, which the town did not seek to recover.

Early on in the suit, Ignatius denied the town’s request to be given the identity of contributors to a defense fund for McWhirter and Blowen-Ledoux.

Sager had argued the donations should be factored in to offset any award; he asserted that the town has a duty to its taxpayers to ensure that they don’t shoulder any unjustified expense.

The defendants’ lawyer, James Cowles of Wolfeboro, said disclosing the identities of donors would have a “chilling effect” on his clients’ ability to raise funds for their defense.

The judge said she found no basis under the Right-to-Know law or any other statute to compel such disclosure.

The town has until Sept. 7 to decide if it wants to appeal the decision to the New Hampshire Supreme Court.

Politics Courts Tuftonboro

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