By NANCY WEST, InDepthNH.org
CONCORD – A former lawmaker who has been fighting to get to the bottom of what officials knew and when they knew former Republican Rep. Troy Merner was illegally serving in the House because he no longer lived in Lancaster or any towns in his district says there is a cover up going on.
Peter Hoe Burling says the Attorney General’s Office’s latest response Oct. 31 to his second right-to-know request hides behind a continuing criminal investigation into Merner regarding alleged wrongful voting and legislative mileage reimbursements to deny the records Burling requested.
Wording in the letter from Assistant Attorney General Matthew Conley to Burling indicate the full facts may not be made public even after the Merner criminal investigation is complete because they would constitute an invasion of privacy.
“If this state had any tradition of any investigating into political malfeasance or wrongdoing there would be people under oath right now,” Burling said Thursday. “The tiny majority in the House doesn’t want people to know what they knew and when they knew it.”
Burling, a Democrat, previously served in the state House or state Senate over a 20-year period.
“If the public was more aware of how this is going, if the public knew what happened and what it meant in the long run to have someone who was utterly unqualified get sworn in and serve in the House for nine months they would be furious over this cover-up,” Burling said.
The current Democratic leadership in the House has made it clear he believes Merner’s votes made a difference in the closely divided House between the number of Democrats and Republicans.
House Democratic Leader Matt Wilhelm of Manchester told InDepthNH.org last month that, “Rep. Merner’s illegal vote likely affected the outcome of many motions that were decided by zero or one vote margins and on one bill, HB 626, his vote directly caused the bill to be killed.”
HB 626 would have moved the controversial school voucher program under the administration of the state Department of Education. “Currently, the state spends millions of dollars a year – 10% of all EFA funds – to a private company to administer the program, which is inefficient, unaccountable, and takes funding away and opportunity from our children in our public schools,” Wilhelm said.
Democrats tried to revive the bill after Merner resigned, but the effort died in a partisan vote before the Rules Committee.
On Thursday, Attorney General John Formella’s spokesman Mike Garrity said: “Mr. Burling requested information related to this Office’s ongoing investigation of former Representative Troy Merner regarding legislative mileage reimbursements and an allegation of wrongful voting.
“…As with all active criminal investigations, and consistent with the requirements of RSA chapter 91-A, this Office will not publicly comment or release any governmental records where disclosure could reasonably be expected to interfere with enforcement proceedings or constitute an unwarranted invasion of privacy.”
In the letter to Burling Oct. 31, Conley said basically the same thing.
But Conley added other exemptions that appear likely to keep many details of the investigation confidential.
Conley told Burling that public policy requires that individuals be able to furnish information to the government with complete candor, unafraid their names and information they provide will later be open to the public.
“Accordingly, disclosure of communications between this Office and any representative or staff member would reasonably be expected to constitute an invasion of privacy,” Conley wrote.
Conley provided three other exemptions under the state’s right-to-know law the office is relying on to refuse disclosure to Burling: documents that would constitute an invasion of privacy; preliminary drafts, notes, memoranda, and other documents not in their final form; disclosure of records protected under the attorney-client privilege and work product doctrine.
Burling had requested all documents that communicated any of the information contained in the attorney general’s Sept. 18 letter that stated Merner was not living in Lancaster and was under criminal investigation that were directed to Speaker Sherman Packard, Majority Leader Jason Osborne, Deputy Speaker Steven Smith, Rep. Laurie Sanborn, and Rep. Robert Lynn, all Republicans.
Burling’s second right to know request was basically the same as the first except that it limited the time period to between March 22, the day a volunteer poll worker in Lancaster called the attorney general to say Merner was no longer domiciled there to Sept. 18 when the attorney general notified House Speaker Packard that Merner wasn’t living in the place he was supposed to represent as required by the state Constitution.
Packard immediately sought and obtained Merner’s resignation from the House after receiving the Sept. 18 letter.
Conley said in the Oct. 31 letter to Burling: “To the extent that this Office communicated with any representative or staff member of the New Hampshire House of Representatives as part of its ongoing criminal investigation, disclosure of that information could interfere with ongoing enforcement proceedings by revealing investigative information, including the identities of potential witnesses.
“Additionally, private individuals, whether they are suspects or witnesses, have a strong interest in not being associated unwarrantedly with alleged criminal activity. This is particularly true for individuals who provide information to law enforcement agencies because those individuals could be subjected to embarrassment and harassment for their cooperation with law enforcement agencies,” Conley wrote.
Burling’s similar right-to-know request to Speaker Packard’s office was also denied.
“The only thing I can say about both is they they are embarrassingly noncompliant with the right-to-know law,” Burling said.
Burling said Formella must answer more questions such as who is being investigated, are the actions of anyone in the legislature or anyone in the Speaker’s office being investigated.
“We’ll be filing a response to what the Department of Justice has sent,” Burling said. “It’s safe to say we’ll be indicating our disappointment.”