October 7, 2008
Nashua Telegraph
A citizen’s dogged pursuit of information being withheld by a state agency was recently justified when a judge ruled that state officials knowingly violated the Right-to-Know Law.
Records related to the state purchase of land for an ATV park were improperly kept secret when Fitzwilliam resident Andrew Walters was denied access to the documents, a superior court judge ruled last month
The state Department of Resources and Economic Development could appeal the decision, but the case was already in Merrimack County Superior Court’s hands after the state Supreme Court had sent it back for a ruling.
“It’s pretty amazing – after three and a half years,” Walters said Monday.
After spending hundreds of dollars and significant time and energy, Walters finally got the legal ruling to what he has believed since he filed suit in 2005: DRED “knew or should have known” that its withholding of information was against the law.
Walters hopes the decision will force state agencies to adhere to the Right-to-Know Law, but he has his doubts. He said that if citizens don’t pursue records and hold government accountable as he and others have, then the state Attorney General’s office and state agencies will still find ways to circumvent the law.
The Right-to-Know Law permits the public to review all documents pertaining to government business. But DRED used exemptions in the law that Walters didn’t accept as legitimate.
“It was discouraging to take three and half years to get the state to comply with a law that it should have followed all along,” he said.
Walters’ pursuit of information dates to when DRED and its Trails Bureau negotiated with the owner of 7,200 acres of land in Berlin for a future ATV park.
Walters and the ATV Watch organization he formed had sought documents on proposed route details and locations of the park. But DRED failed to release the paperwork, citing case law and Right-to-Know Law exemptions.
Walters finally saw the documents, but only after the state had decided to buy the Berlin tract and the public could no longer review the sale.
Nonetheless, Walters pursued the matter all the way to the Supreme Court. The high court disagreed last year with a lower court’s finding that DRED didn’t violate the law – even though DRED had admitted to not releasing documents and couldn’t provide a legitimate reason why. The Supreme Court sent the case back to Merrimack County Superior Court.
With that remand order, Superior Court Judge Carol Conboy ruled Sept. 25 that DRED improperly withheld the information on the Berlin land deal and that Walters’ lawsuit was necessary in securing their eventual disclosure. The second part of that decision means that Walters’ ATV Watch is entitled to attorney fees and court costs.
A Right-to-Know exemption DRED had used was that the release of documents would have adversely affected the Berlin property owner’s ability to sell the land and would have ruined the deal with the state.
Conboy ruled that documents such as a property map and other materials had conveyed no personal information about the landowner and no information that would have exposed the state to the risk of unfair bargaining.
DRED cannot claim a general exemption to Right-to-Know on appraisal documents if they do not contain private information that would affect the sale, nor can the agency redact information it deems “generally exempt,” Conboy ruled.
Conboy also found fault with another DRED move to withhold information. DRED’s refusal to release the minutes of several Park Land Management Team meetings violated the law, the judge ruled.
DRED Commissioner George Bald was unavailable Monday to comment on the ruling, an employee in his office said. But in a March profile of Walters, Bald told The Telegraph his agency makes following the Right-to-Know Law a priority.
Walters contends that DRED has an inherent conflict of interest: collecting registration fees from ATV users while creating management trails for them. As long as this relationship exists, Walters said, DRED will find a way to withhold information.
In March, Bald denied any conflict of interest. The legislature created that revenue arrangement, and DRED still has a responsibility to find land for ATVs, he said.
Conboy’s ruling doesn’t mean Walters has seen the last of a courtroom. The mechanical engineer is still sacrificing time and money to see every detail on how the state oversees ATV use.
He is in the process of suing the Department of Transportation over its refusal to release documents detailing how and why officials allowed ATVs to use railroad trails against the order of the federal government.
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