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NH Supreme Court hears oral arguments in government transparency case

  • The NH Supreme Court heard oral arguments on Sept. 28, 2021 in the transparency case Spencer vs. Sununu. Cassidy Jensen

Monitor staff
Published: 9/28/2021 5:14:28 PM

Emails sent by Governor Chris Sununu’s staffers on private email accounts are indeed government records that should be disclosed to the public, an attorney for a Concord woman argued to the New Hampshire Supreme Court.

Attorney Katherine Anthony, a lawyer with government watchdog group American Oversight representing Louis Spencer in her case against the governor, argued on Tuesday that the emails in question are public records, since they were sent by government staff in activities related to their official functions. Anthony said the emails don’t fall under deliberative or executive privilege since the communications were exchanged with parties outside the government.

“This case is about fundamental principles of New Hampshire law and government, and those principles are that officers of the government are, at all times, completely accountable to the public,” she said.

The New Hampshire Supreme Court heard oral arguments Tuesday in the case that could determine the scope of the governor’s ability to keep records out of the public eye, testing the legal concepts of executive and deliberative privilege for the first time in New Hampshire.

When Associate Justice James Bassett asked whether Anthony believed the governor had a right to the deliberative process privilege or executive privilege, she said that other courts have limited those privileges to internal communications between the governor and his close advisors, not to third parties outside the government.

“Petitioner’s position would be that the governor does not need to engage in secretive communications with partisan operatives,” Anthony said, and later added that the state Constitution mandates that government be accountable to the people, and therefor supported limits on the governor’s leeway to do his job.

The case, Spencer vs. Sununu, deals with a public records request denied by the Governor’s Office. Spencer, who is appealing the decision by Merrimack Superior Court to dismiss her case, is a co-founder of Concord grassroots advocacy group the Kent Street Coalition.

Initially, she requested correspondence related to Sununu’s veto of redistricting legislation, under 91-A, the state Right to Know Law.

State agencies and municipal bodies in New Hampshire are subject to the state Right to Know Law, which the governor maintains does not apply to his office. However, Part 1, Article 8 of the state constitution, guarantees government should be “open, accessible, accountable and responsive” to the public, and that “public access to governmental proceedings and records shall not be unreasonably restricted,” applies to the Executive Branch.

Spencer and her attorneys are arguing that the Right to Know Law does apply to the governor, and that the state constitution’s claim of public access to government should also cover their request.

She requested communications from Sununu and certain staff members sent in August 2019, and between former Wisconsin Governor Scott Walker and his staffers and redistricting representatives in the same month. Attorney General John Formella told Spencer that there were 11 responsive emails in the private Gmail accounts of two staffers, Benjamin Vihstadt and Christopher Ellms.

Because those emails were on personal email accounts and dealt with the governor’s political messaging, and not his duties as governor, Formella told Spencer that the emails were personal and not subject to disclosure, according to court filings.

Formella later informed Spencer that the Governor’s Office had a policy that automatically deleted inbox emails within 30 days. In response, Spencer requested that backup tapes be searched for any potentially responsive deleted emails.

Judge John Kissinger ruled in October 2020 that the Governor’s Office had met its burden in conducting a reasonable search for the requested records, and agreed with the governor that his office is not covered under the Right to Know Law.

Kissinger wrote in his order dismissing the case that the documents requested before the veto were subject to the deliberative process privilege and the executive privilege, related concepts that give the executive the ability to confer privately with advisors and withhold records that are draft documents or conversations that contribute to decision-making.

Assistant Attorney General Jennifer Ramsey, representing the Governor’s Office before the Supreme Court, cited an Ohio court case that gave deference to the executive’s legal counsel in deciding whether executive privilege applies. Ramsey maintained that the emails Formella found were not governmental records, and that even if they were, they would fall under executive privilege and deliberative privilege.

“I think this court can affirm the trial court on either basis, either because none of these emails are governmental records or because they are subject to executive privilege, frankly, in their entirety,” she said.

During oral arguments, it became clear that the justices had not been provided with the emails that the Merrimack Superior Court judge had been able to view. Both attorneys agreed to allow the emails into the record for the court to review.

“So these two privileges we’re talking about, do you agree that we’ve never really addressed the issue of the existence or the scope of either the deliberative process privilege or the executive privilege?” Bassett asked Ramsey.

“I haven’t found any cases where you’ve done so, Justice,” she said.

Bassett asked whether the Court had to rule on scope of the two privileges, even if 91-A was not found to apply to the Governor.

Ramsey replied that because the Governor’s Office recognized that it was bound to adhere to the state Constitution the privileges would still be relevant. “Yes, I do think that this is the appropriate opportunity for you to explain this court’s view,” Ramsey said.

Both attorneys addressed the email deletion policy of the Governor’s Office, with Anthony arguing that there could be responsive emails deleted immediately under the policy, and Ramsey asserting that the policy was reasonable and that all responsive records had already been found.

The Supreme Court’s ruling on executive privilege could have important consequences for any New Hampshire residents who want to know what’s going on inside the governor’s office. Any efforts to weaken executive privilege would have to come from a constitutional amendment, not from the Legislature.

An opinion on the case could take months to be released, depending in part on how broad a ruling the court issues.

Sununu cited executive privilege this month when he denied the release of correspondence requested by the Monitor related to the sale of the former Department of Transportation property at 11 Stickney Ave., in Concord.

That property was sold to Brady Sullivan, a Manchester-based developer, despite ongoing talks with the City of Concord, which had right of first refusal to match private offers. The firm’s owners have made donations to Sununu’s past campaigns.

Cassidy Jensen bio photo

Cassidy Jensen has been a reporter at the Monitor, covering the city of Concord and criminal justice, since July 2021. Previously, she was a fellow at the Toni Stabile Center for Investigative Journalism at Columbia University, where she earned a master's degree. Her work has been published in Documented, THE CITY, Washington City Paper and Street Sense Media. When she's not at City Council meetings, you can find her hiking in the White Mountains.

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