Brentwood Selectmen – You Shouldn’t Have Deleted Those Emails! Part 1

Yeah, openly admitting that you deleted emails is not a good look when my RSA 91:A demand said ALL emails for the given time period?  Sorry, you just can’t “delete” them because a Selectmen quit – that’s NOT what the Law requires!

As you know, I had put in an RSA91:A demand for all of the Brentwood Selectmens’ emails.  Karen Clement, the Town Administer, had very QUICKLY turned my prior RTK on the Brentwood Selectmen’s Handbook around so I wasn’t expecting much of a hassle with the emails other than the fact that returning the “responsive records” (e.g., the emails) would take longer and be more involved – I don’t expect most Town Administrators to also be full-fledged Email Server Administrators.  Thus, I wasn’t surprised when I received this from Karen:

From: “Karen Clement” <KClement@brentwoodnh.gov>
To: “Skip” <Skip@granitegrok.com>
Sent: 12/2/2021 1:38:19 PM
Subject: RE: RSA 91:A Right To Know demand

Hi Skip,

I have been working with IT to see what is the most efficient way to tackle this request.  Anyway we slice it, this is an extensive project and will take weeks to complete.  All copies will be provided in paper and will cost $0.25 per page as each email will need to be printed, reviewed, and potentially redacted.

Is there something in particular that you are looking for or a way to narrow the scope? 

Thanks,

Karen Clement, CPM
Town Administrator
Town of Brentwood
1 Dalton Road
Brentwood NH 03833
603 642 6400 x 110
kclement@brentwoodnh.gov

Well, two things wrong with that reply that immediately caught my eye – the length of time and that all emails would be printed at my cost. And my demand had this in it as well:

So there’s that. Remember, the Chair, Ken Christiansen had estimated there would be about 1,000 emails.  In the grand scheme of things, with 5 Selectmen over an entire year, that would be a piddling number of emails.  There is NO way this is an “extensive project and take weeks to complete”.  Been there, done this before.

And no, I am not about to answer her question of “Is there something in particular that you are looking for or a way to narrow the scope?“.  The fact is that *I* know what I’m looking for and the Law does not require me to state what my purpose is. It only requires them to cough up the Governmental records one seeks and as quickly as possible.

However, I decided to double check how many emails are involved, given that she could better check that number than Mr. Christiansen could:

From: Skip <Skip@granitegrok.com>
Sent: Thursday, December 2, 2021 1:57 PM
To: Karen Clement <KClement@brentwoodnh.gov>
Subject: Re[2]: RSA 91:A Right To Know demand

Approximately how many emails are there?

-Skip

The quick response was far better than I thought:

From: “Karen Clement” <KClement@brentwoodnh.gov>
To: “Skip” <Skip@granitegrok.com>
Sent: 12/2/2021 2:01:31 PM
Subject: RE: Re[2]: RSA 91:A Right To Know demand

I am not sure yet…. But probably 2-300.   I need access to each inbox and then I need to print each one to make sure there is nothing that needs to be redacted.

Thanks,

Karen Clement, CPM
Town Administrator
Town of Brentwood

Weeks?  Extensive? For 300 emails?  Even if it turns out to be twice that?

I think not.  Look, I freely admit that I don’t know what her workload is, especially in that this now Budget Season in most towns and her position puts her in the middle of that. But I gave her an “out” as to a process AND as well as stating what the Law says about Redactions.  Let’s face it, most emails are rather short and even if not, the purpose of each can quickly be ascertained after reading just the first couple of paragraphs – they would be a tipoff as to whether an email would require stricter scrutiny for redacting “stuff” or not.

And doing the “paper” route?  RSA 91:A precludes that. Thus, my response covered all that:

From: Skip <Skip@granitegrok.com>
Sent: Thursday, December 2, 2021 2:45 PM
To: Karen Clement <KClement@brentwoodnh.gov>
Subject: Re[4]: RSA 91:A Right To Know demand

Good afternoon!

>> I need access to each inbox and then I need to print each one to make sure there is nothing that needs to be redacted.

Well, 2-300 emails is a lot less than the thousand than the Chair stated during the meeting so there’s a bit of good news there. Having worked in the IT field for over 40 years, your IT folks should be able to export those emails in bulk instead of forcing you to examine each inbox separately (unless your email server is “peculiar”).

How about this – just do a batch at a time associated with one Selectmen at a time with partial delivery of such response records?  “Chunk it up”, so to speak?  From watching the videos from my point of view, that could be (right to left) Jonathan Frizzell first, Jon Morgan second, Andrew Artimovich third, Robert Mantegari next, and last would be Ken Christiansen.

I would point out that each email can be viewed online with no need to print them out first, and that the email files for each message (the .EML files) can exported and then be zipped up for transfer.   I am also willing to state that unless most of your Selectmen’s emails are dealing with legal issues (which could be confidential in nature), that no more than 10% of those 300 emails would need to be redacted in some way or fashion (from past experience, the actual percentage tends to be much less which means far less work for you; read’em and export them).

From the RTK:

…As you are aware, in 2016, the New Hampshire Supreme Court ruled that a governmental body in possession of records is required to produce them in electronic media using standard of common file formats: Green v. SAU #55, 168 N.H. 796, 801 (2016). Unless there is some reason that it is not reasonably practicable for you to produce these records in the requested format, I ask that you either do so or explain why it is not practicable for you to comply.

If there is a need for redaction, they can be “printed out” to a PDF which then can be processed by a PDF Editor to accomplish any needed redactions and thus keeping them in electronic format per the Court’s decision. Or just those that need redacting can be transferred to hardcopy / print outs while the remaining can remain in electronic format. Which begs the question – given that emails are public records, what kinds of information would you deem “redactable”?

An most important question to ask.  I’ve found that many times, “Government” wishes to hide things that the Law says they can’t. Asking for examples allows me to check the Law as to whether they are correct in their redactions or not. While RSA 91:A is not the end all be all, it does make things clear:

RSA 91A-4 Minutes and Records Available for Public Inspection

V. In the same manner as set forth in RSA 91-A:4, IV, any public body or agency which maintains governmental records in electronic format may, in lieu of providing original records, copy governmental records requested to electronic media using standard or common file formats in a manner that does not reveal information which is confidential under this chapter or any other law. If copying to electronic media is not reasonably practicable, or if the person or entity requesting access requests a different method, the public body or agency may provide a printout of governmental records requested, or may use any other means reasonably calculated to comply with the request in light of the purpose of this chapter as expressed in RSA 91-A:1. Access to work papers, personnel data, and other confidential information under RSA 91-A:5, IV shall not be provided.

As emails are electronic by nature, I am not asking for any transformations in this case from hardcopy to electronic format.

With respect to redactions, these seem to be the only clauses, in general application, that would apply in this demand are these listed in RSA 91A-5 Exemptions:

VI. Records pertaining to matters relating to the preparation for and the carrying out of all emergency functions, including training to carry out such functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life.
<snip>
XI. Records pertaining to information technology systems, including cyber security plans, vulnerability testing and assessments materials, detailed network diagrams, or other materials, the release of which would make public security details that would aid an attempted security breach or circumvention of law as to the items assessed

 And this, of course:

   91-A:6 Employment Security. – This chapter shall apply to RSA 282-A, relative to employment security; however, in addition to the exemptions under RSA 91-A:5, the provisions of RSA 282-A:117-123 shall also apply; this provision shall be administered and construed in the spirit of that section, and the exemptions from the provisions of this chapter shall include anything exempt from public inspection under RSA 282-A:117-123 together with all records and data developed from RSA 282-A:117-123.

Thus, for any examples where redactions would be applied, I politely ask that the specific Power to do so (e.g., the NH RSA) also be cited in specificity for redactions if not specifically enumerated above.

Again, I appreciate your assistance in this lawful application of RSA 91:A.

-Skip

Again, I only ask that Governmental employees, officials, and agencies do one and ONLY one thing – Follow The Law.  Period. If they wouldn’t stray out of those lanes, or try to expand the lanes in which our Legislature has placed them in, I’d have very little to write about.  So, I just decided where the “guard barriers” were located.  That’s all. Is this too much to ask???

And now we come to the part where the title of this post comes into play – and boy, it’s a doozy. Town Administrators, having the powers that they do and in which one of them, guiding the Selectmen, should know the Law. So, read this reply carefully – and I’ll make it easy to see the problem. Remember, my RTK spanned the year to date time period:

From: “Karen Clement” <KClement@brentwoodnh.gov>
To: “Skip” <Skip@granitegrok.com>
Sent: 12/2/2021 3:51:25 PM
Subject: RE: Re[4]: RSA 91:A Right To Know demand

I’ll forward this to IT and see what they can do to help facilitate this more efficiently. I’ve let them know we are looking at Jon Morgan’s inbox only for now.  Jonathan Frizzell’s email box was deleted after he resigned.

Thanks,

Karen Clement, CPM
Town Administrator
Town of Brentwood

Three weeks ago.  From the Seacoastonline, to establish a timeline:

Brentwood selectman resigns calling board ‘a circus’ over constant political jabs
Patrick Cronin  Portsmouth Herald
Published 7:25 p.m. ET Nov. 11, 2021

BRENTWOOD — Selectman Jonathan Frizzell resigned last week, saying he was tired of the partisan left-right bickering “circus” that has seeped into the town government….

I’ll have more thoughts on the article later on but I’m betting that the Brentwood retention policies are a lot longer than 3 weeks.  Thus, the action taken by the Town of Brentwood may well have been illegal in the case of “Jonathan Frizzell’s email box was deleted after he resigned. ”

I’ve gone long but I think you’ll like what I said in the next installment.