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DEERFIELD

High court backs public info agitator

Right-to-know suit goes back to judge

A judge wrongfully dismissed a Deerfield woman's right-to-know petition on the grounds that the town's violation wasn't intentional, the state Supreme Court has ruled. In turn, the case has been sent back to the Rockingham County Superior Court where a judge will decide whether the town should cover Harriet Cady's legal costs.

Cady has called it a victory in the case - one of many she has filed against the town of Deerfield - and a finding by the court that the town did violate the right-to-know law.

But the town's lawyer said the Supreme Court was merely clarifying a technicality in the case because town officials had already admitted they broke the law and even fixed the errors before Cady filed her petition.

Cady, a member of the town's budget committee, filed a petition against the town in March 2011, alleging the right-to-know law was violated when Deerfield's Conservation Commission and Open Space Committee held meetings and adopted an open space plan without properly posting agendas or taking minutes.

In court, town officials admitted certain meetings weren't posted properly but said that when it was brought to their attention, the committee held another public meeting and reconsidered all the issues handled incorrectly.

Cady also argued that police officials wrongfully sold firearms without receiving approval from the selectmen, an allegation the judge did not consider in his ruling.

In September 2011, Judge Kenneth McHugh dismissed Cady's petition, saying the town did not commit a 'willful violation' of the right-to-know law.

Cady appealed the ruling, leading to last week's Supreme Court order.

'What I said to the Supreme Court was if you are driving down the road and you are preoccupied with another problem, you'll be going too fast before you notice it. . . . Can you go into court and say it wasn't willful? A violation of the law is a violation of the law,' Cady said. 'And the Supreme Court agreed with me.'

Cady, who represents herself in court, said yesterday that she would like to see about $750 in court expenses covered by the town. She is also looking for the superior court judge to rule the open space plan, which was originally accepted at an invalid meeting but later adopted lawfully, cannot be a part of the town's master plan.

While the court will rule if any injunctive relief is warranted, the town's lawyer, Rob Upton, said yesterday that the town already rectified the admitted errors.

'All the Supreme Court is saying to the superior court is 'Look, that's the wrong standard,' ' said Upton of the Upton and Hatfield law firm. 'There was a violation. It's admitted there was a violation. Now (the superior court has) to decide whether it was an intentional violation and whether or not you're going to grant costs.'

This is the second right-to-know case Cady has recently filed against the town.

Last month in superior court, Judge William Delker dismissed one of her suits and handed down a harsh reprimand for Cady, calling her complaint 'frivolous and unjust.'

That case stemmed from a 2001 settlement between Cady and the town in which officials, without admitting any violation of the law, agreed to pay Cady $185 for legal fees and continue reminding its committees to post agendas and minutes. For her part, Cady agreed to submit public records requests in writing and not hinder any town employees' ability to do their jobs while reviewing documents.

In her January suit, Cady alleged, among other things, that the town violated this settlement and the right-to-know law when the selectmen held a meeting without posting an agenda. Cady said she stumbled upon the meeting when she saw the selectmen's cars parked outside of the town offices on Dec. 29, 2011.

In court, though, five people testified that they had either posted the agenda in various places around town or had seen the agendas before the meeting.

At the end of a two-day trial, Delker called the case a 'travesty' and ordered Cady to pay the town's attorney fees as well as compensation for the time town employees had to spend in court.

'Undisputed evidence in this case is that these notices were posted appropriately, that they were on the website and that they were posted in public places. Whether you saw them or if they happened to be in a different format than normally posted, (law) does not require or dictate any particular way in which these notices need to be posted,' Delker said, according to a transcript provided by the town.

Cady said yesterday she has made a motion for reconsideration of the case and also filed for a retrial based on new evidence.

Barton Mayer, the Upton and Hatfield lawyer working on that case, said the town plans to object to both requests, which he called a 'continuation of (Cady's) pattern of making false accusations against town officials.'

Town Administrator Leslie Boswak said yesterday the town has spent about $24,000 defending itself against these two lawsuits.

Former board of selectmen chairman John Reagan, who is named in the 2012 lawsuit, called the cost an unreasonable burden on taxpayers.

'The selectmen are pretty much all volunteers, and . . . we're there to follow the rules and regulations and the RSA but not to be harassed by people who imagine that they've been wronged,' he said.

Cady, though, said officials simply need to stop breaking the law if they don't want to pay legal fees.

'They can violate the right-to-know law over and over and then just have the taxpayers pay the bill,' Cady said. 'I, on the other hand, have to use my own money.'

(Tricia L. Nadolny can be reached at 369-3306 or tnadolny@cmonitor.com.)

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