31 October 2008

KingCast writes Senator Biden and VT Senator Pat Leahy on his Open Government Act vis a vis KingCast v. McLeod et al.

Dear Senator Leahy:

I admire your career and work on the 2007 Open Government Act and hope that its detractors will stop stonewalling. Has the Secret Senator who placed it on hold been identified? What is the current status?

Update: Found.

Next door to you in New Hampshire we face an issue of first impression:

Are the emails to and from an individual state representative subject to FOIA if that legislator is not in a quorum setting, but if said emails are:

a) made using State time and resources on her state email address.
b) made on her private email address but addressing a public issue.

Obviously the legislatures did not enact FOIA laws so that State Legislators could hide their work on these matters on private emails, then provide the taxpayers a gussied-up version in Committee.

You see, most of the citizens of North Country are appalled at State Representative Martha McLeod for her actions after the tragic double homicide in Franconia involving Liko Kenney, Bruce McKay and multiple-felon Gregory W. Floyd. For more on Floyd, read the ATF/Sullivan post. Representative McLeod -- now running for State Senator -- tried to sneak failed HB 1428 Bruce McKay Highway past her constituents and the Franconia Recovery and Reconciliation Committee as noted in KingCast v. McLeod et al., Grafton County 08-E-192.

The essence of this portion of the case boils down to the position of Colorado legislators and Courts, and of KingCast and of Knox County Law Director John Owings and Chief Deputy Law Director Mary Ann Stackhouse (Political Knoxville story) that such emails are subject to FOIA, versus the State of New Hampshire, which is vigorously trying to shield all of that. I have produced the relevant quotes in the comments section for your review and will telephone your office shortly.

Best regards, Christopher King, J.D.


Christopher King said...

Every lawyer knows that they have an ethical obligation to address adverse law and opinions when they file a brief or Motion, particularly if they are already on actual notice that the adverse law is going to be argued. But none of the lawyers for Respondents even mentioned the adverse law clearly cited in Petitioner KingCast's Complaint, as noted this morning in the Kwame Kilpatrick/Martha McLeod post.

To wit: Respondents argue that the individual legislators are only part of a "public body" and so they don't have to produce any emails because RSA 91-A deals only with "public bodies." They then cite United we Stand America, Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004) and Banks v. Lappin, 539 F.Supp.2d 228 (D.D.C. 2008) in support.

The problem is, Petitioner had already noted in Tennessee that other lawmakers view things differently under virtually the same exact wording. Emails to one individual commissioner, clearly not sitting in a quorum situation, are subject to the Act, period. A copy of the County Attorney's opinion, and of other applicable law will be provided to the Court prior to Oral argument. Here's the Political Knoxville story:

"Law Director John Owings and Chief Deputy Law Director Mary Ann Stackhouse cited Tennessee Code Annotated 10-7-301(6) in offering that opinion, which defined public records as all documents, papers, letters, electronic data files, and similar material “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency."

When asked if that included a constituent’s letters or emails to a commissioner, Owings replied, “If it is in connection with the transaction of official business, then the answer is yes.”

Owings also stated that, in the case of email, it wouldn’t matter if such communication was sent to the commissioner’s government account or to any private account the commissioner has.

“If [an email] relates to the transaction of official business, it wouldn’t matter if it were sent to an official Knox County account or a private account. It would be public record, in my estimation,” Owings said.

Turns out the Mayor was sanctioned for shady expenditures.


Petioner also cited -- and Respondents ignored -- In re Bd. of County Comm'rs, Court of Appeals No. 03CA0074, Court of Appeals of Colorado, Division Five, 95 P.3d 593; 2003 Colo. App. LEXIS 1151; 20 I.E.R. Cas. (BNA) 1399; 31 Media L. Rep. 2448, July 17, 2003:

"We need not address whether the e-mails have a demonstrable connection to the exercise of functions required or authorized by law because we conclude, for the reasons indicated below, that the e-mails involve the expenditure of public funds, and thus, are [*598] public records [**7] subject to disclosure under CORA."

First, Baker, an elected county official, and Sale, a county employee, are compensated by public funds. Baker and Sale sent many of the e-mails while they were working. An employee's use of work time involves the expenditure of public funds.

Second, the e-mails were sent on the "Metrocall" e-mail system purchased by the county for use by county employees. The county pays monthly fees to use this system. The use of this system to send sexually explicit e-mails or e-mails unrelated to county business is relevant to allegations that Baker misspent public funds, including improperly promoting and compensating Sale.

Third, Baker and Sale used county-owned computers to send e-mails to county-owned pagers over the Internet. The county expends public funds for the purchase, maintenance, and use of this equipment."

Clearly the employees involved in this case are not public bodies in and of themselves, either, and Colorado does not believe it to be an absurd result that individual statesmen are held subject to the law. If they need extra time to research or to respond to RSA-91A requests the law has a built-in valve to give them that extra time. Similarly, if they don't check their emails every five (5) days they have no business being in office then, do they?

Christopher King said...

KingCast goes to Senator Leahy on open emails issue.
Friday, October 31, 2008 9:13 AM
"Christopher King" kingjurisdoctor@yahoo.com
Add sender to Contacts
pmceachern@shaines.com, info@murdervictimsfamilies.org, Marta.Modigliani@dos.nh.gov, Andrew.Paparella@abc.com, Kelly.Ayotte@doj.nh.gov, Jeffery.Strelzin@doj.nh.gov, Joanne.Robbins@doj.nh.gov, graftonca@yahoo.com, ray.burton4@gte.net, John.Gallus@leg.state.nh.us,


Happy Halloween Martha.


31 October 2008
KingCast writes Senator Biden and VT Senator Pat Leahy on his Open Government Act vis a vis KingCast v. McLeod et al.

Anonymous said...

"Remove justice, and what are kingdoms but gangs of criminals on a large scale ?"
St. Augustine

Christopher King said...


Kind of like Kafka's "The Problem of Our Laws," yah.

Also, remember the RNC email debacle??

Senator Leahy on video.

UPDATE II: Sen. Patrick Leahy’s (D-VT) statement:

This Administration’s penchant for secrecy and disdain for oversight seems to know no bounds. It is troubling that so many senior White House officials, including Karl Rove and his former deputy Sara Taylor, were engaging in an effort to avoid oversight and accountability by ignoring the laws meant to ensure a public record of official government business. This extensive end-run around the laws leads one to wonder what these officials wanted to hide from the public and Congress.

This report indicates that Mr. Rove and Ms. Taylor were some of the heaviest users of these RNC e-mail accounts, and both officials have been linked to a project to fire several Department of Justice prosecutors that is currently the subject of congressional investigations. Now that we know more than 100,000 of Mr. Rove’s secret e-mails have not been destroyed, I hope the White House will respond to my request for any e-mails from his account that are relevant to the Judiciary Committee’s investigation. I look forward to Ms. Taylor searching the thousands of e-mails from her account in accordance with a subpoena she was issued last week.