Here Comes the Sun: Over the next two weeks, InDepthNH.org reports on the status of the right-to-know law at top levels of government in New Hampshire. Part 1: Secret Suspension.
Two years ago, Tom Reid filed a right-to-know request seeking Attorney General Joseph Foster’s investigation that convinced him to temporarily remove former Rockingham County Attorney Jim Reams from office.
Foster accused Reams of ethics violations, financial mismanagement and gender discrimination, but ultimately decided there would be no criminal charges. A judge later reinstated Reams.
Reid, who is now in private practice in Concord and Portsmouth, got caught up in the Reams case because he served as his deputy when Foster had them both locked out of their county offices in Brentwood on Nov. 6, 2013.
Instead of providing the information that Foster originally characterized to the court as a “criminal” probe, he released heavily redacted files saying they involved “personnel” information and were therefore exempt from the state’s right-to-know law.
Reid appealed the Superior Court’s ruling that allowed the attorney general’s heavy redactions to the state Supreme Court. Foster filed his response last week saying the redactions were appropriate, insisting the Reams investigation was conducted jointly with Rockingham County.
“(Foster) removed an elected official and he has never given the public the chance to see if he had a basis to do so,” Reid said. “They basically removed (Reams) and then were told by Judge (Richard) McNamara that they couldn’t.”
Reid believes Foster made misrepresentations to the court. “And (Foster) gets to say ‘you have to take my word for it.’”
Reams was ordered back to work in April of 2014 and retired in June with full pay through the end of the year. Foster issued a news release Jan. 17, 2014, saying Reid was resigning, but had done nothing wrong and was never under investigation.
“The attorney general lied when he told the court that the investigation was done jointly with the county – at least with the portion of the investigation prior to Nov. 6,” Reid said.
Foster was found in violation of the right-to-know law for failing to respond to Reid’s original request in a timely manner, but Merrimack County Superior Court Judge Larry Smukler said it wasn’t intentional.
Foster didn’t respond to repeated requests to interview him, senior officials or Assistant Attorney General Frank Fredericks who filed the state’s response to the Supreme Court on Feb. 29.
On Monday, Deputy Attorney General Ann Rice did respond by email to InDepthNH.org’s request to ask Foster about the Reid appeal and two unrelated matters involving the Attorney General’s Office.
“You have not requested specific documents or information pursuant to RSA 91-A. If I am mistaken, however, please clarify your request,” Rice wrote. “If you are asking for an interview or comment, we respectfully decline.”
Fredericks wrote in the state’s response to the Supreme Court: “The AGO properly redacted personnel-related information from its investigatory documents as required by RSA 91A:5, IV, which categorically exempts records pertaining to personnel practices and personnel files from disclosure.”
Fredericks said Reid’s argument that only the employee’s employer can invoke the personnel exemption is “unjustifiably narrow.” Reid’s interpretation failed to consider the substance of the personnel information at issue and the privacy rights of employees, Fredericks wrote.
That would deter employees from participating in intergovernmental investigations, Fredericks said.
“Thus the trial court correctly denied (Reid’s) motion to compel production of this personnel-related information in unredacted form,” Fredericks wrote.
Fredericks conceded the Attorney General’s Office did refer to its probe as a joint investigation with Rockingham County “because this is how the AGO viewed its investigation.”
“While County officials did not participate in the questioning of witnesses, the county agreed to prohibit Reams from entering the RCAO and placed Deputy County Attorney Reid on administrative leave so as to facilitate the AGO’s fact-gathering,” Fredericks wrote.
The county also provided the attorney general with access to personnel files and human resources investigations, he said. The Attorney General’s Office and the county jointly petitioned for removal of Reams as county attorney, he said.
“Therefore the AGO’s investigation and ultimate action against Reams was, at the very least, authorized by the county,” Fredericks wrote.
Foster’s actions have infuriated Reid. “Foster was able to remove an elected official, smear him in a public document, but the public is not allowed to see what he relied upon, if he misrepresented anything, if he conducted an objective investigation or if, as I believe, he conducted a witch hunt and a smear campaign.”
Reid called it propaganda. “Fortunately we live in New Hampshire and the United States. In New Hampshire, Part 1 Article 8 of the Constitution says we’re allowed to hold the government accountable.
“They have to produce the records so we can see what our government has been up to. That’s the absurdity of this,” Reid said.
The March 11, 2014, removal complaint Foster filed against Reams contained allegations of an ethical violation, financial mismanagement, and gender discrimination. The state later said there was an ongoing criminal investigation, but no criminal charges were ever filed.
The merits were never heard and no findings were made. Superior Court Judge Richard McNamara ordered Reams back to work the following month.
“For the reasons stated in this order, the Court finds that Reams’ current suspension is unlawful, and that he must be reinstated as Rockingham County Attorney, and provided access to the County offices,” McNamara wrote.
McNamara also wrote: “Allegations, no matter how inflammatory, are not a substitute for evidence.”
Reid’s appeal raises three main questions: Whether Superior Court Judge Larry Smukler erred by denying the public access to the unredacted investigation.
Secondly, whether the Superior Court erred in concluding that portions of the Reams investigation constitute a “record pertaining to personnel practices” and are therefore exempt from disclosure. Thirdly, whether the court erred in concluding the investigation into Reams was “conducted jointly with Rockingham County.”
Reid insisted the record contains nothing to support that assertion. “The investigation was done by the FBI and the attorney general, not the county,” Reid said.
Reid said the county commissioners were afraid because the county had conducted an investigation into sexual harassment allegations against Reams the year before that had been sealed and signed off on by the county’s lawyers at Sheehan, Phinney, Bass and Green.
“The attorney general is now folding his arms and saying, ‘I’m done. I don’t ever have to let anybody know if I did this appropriately. But Part 1, Article 8 says we get to hold the government accountable. We get to see what they did and why,” Reid said.