By NANCY WEST, InDepthNH.org
CONCORD – Gov. Chris Sununu’s policy of deleting office emails after 30 days undermines New Hampshire’s right to know, according to a public records lawsuit seeking communications between Sununu’s and Wisconsin’s ex-Gov. Scott Walker’s offices about redistricting legislation Sununu vetoed in 2019.
Sununu surprised some lawmakers in his veto of House Bill 706. One court filing said Sununu had even planned a signing ceremony. He vetoed another redistricting bill last month.
Louise Spencer of the Kent Street Coalition, a grassroots advocacy group, filed the lawsuit after she became suspicious when Walker penned an op-ed piece Aug. 22, 2019, two weeks after the veto, praising it in the Concord Monitor. Walker is the chairman of the National Republican Redistricting Trust, which coordinates the GOP’s 50-state redistricting effort, according to its website.
“The governor’s 30-day email deletion policy essentially eviscerates the citizens’ right to know as guaranteed under the NH Constitution,” Spencer said in an email.
“The NH Constitution guarantees citizens a government that is ‘open, accessible, accountable and responsive.’ (NH Const. Part I, Art. 8) How can we hold the governor accountable when under his own policy, emails are to be deleted after 30 days? How do we even get the chance to know if the governor is being open with or responsive to his constituents?”
Spokesmen for Gov. Sununu and Attorney General Gordon MacDonald, who is fighting the suit in Merrimack County Superior Court, did not respond to requests for comment. A hearing will be held on the matter Sept. 2.
MacDonald submitted a response to Spencer’s suit saying the e-mails she “seeks to review and copy are not governmental records and/or are protected from disclosure by executive privilege and/or deliberative process privilege.”
Sununu’s counsel John Formella told Spencer and her attorney Paul Twomey that 11 emails had been identified for some personnel in the governor’s office who have a personal, friendship relationship with an employee at the NRRT, purportedly supporting his conclusion that the records were personal, not governmental records.
“However, that fact just as easily supports the inference that the NRRT sought to go through less formal channels at its disposal to influence the Governor’s official actions related to the redistricting bill,” Twomey wrote.
And, he said, it is the public agency seeking nondisclosure that bears the burden of proof in the inquiry as to whether records must be released.
Twomey said the withheld records are public records in furtherance of an official function under RSA 91-A:1-a(III). “The emails in question were sent between members of the Governor’s staff and personnel of organizations— including the NRRT—with an interest in redistricting during August 2019, the month that the Governor vetoed a redistricting bill.
“Tellingly, Governor’s Counsel did not deny that the withheld records related to redistricting. It is difficult to understand how communications related to the subject of a bill the Governor was considering, at the time he was considering it, are unrelated to the official functions of the Governor and his staff,” Twomey wrote.
He said Sununu’s policy results in the premature destruction of records contrary to the spirit of the Constitutional Provision and the right-to-know law. “And finally, the Governor’s Office has declined to search locations where deleted materials may still exist in order to locate responsive records.”
Twomey said the bill, which would have divided the redistricting process evenly among Democratic, Republican, and unaffiliated commission members, and also would have “create[d] a new citizens’ advisory commission to bring independence, transparency, and public input to a redistricting process formerly kept under wraps,” has been described as “a model for bipartisan redistricting reform.”
In his response, MacDonald said Formella had exercised his judgment in withholding personal political e-mails, and provided information concerning the office’s e-mail retention policies and practices, including the fact that email accounts have limited storage capacity and staff are encouraged to regularly delete unimportant e-mail after 30 days.
“It is further admitted that some personnel in the Governor’s office have a personal friendship relationship with Dave Abrams, although he is an employee of RSLC (Republican State Leadership Committee) not NRRT,” MacDonald said.
In a story posted on InDepthNH.org about the 2019 veto, Sununu said: “Legislators should not abrogate their responsibility to the voters and delegate authority to an unelected and unaccountable commission selected by political party bosses. We should all be proud that issues of gerrymandering are extremely rare in New Hampshire.”
Sununu said the current process is fair and representative of the people, adding he didn’t question the sincerity of the lawmakers who support HB 706.
See court records here: https://www.courts.state.nh.us/caseinfo/pdf/civil/Sununu-Spencer/index.htm