Constitutional Law

House Counsel David Frydman ignores request for Fraud Counsel or Interim Study and says they have no emails on HB 1428 because they were deleted.

By Christopher King

1. Said "an individual legislator's emails are not a public record and not available pursuant to a Right-to-Know request," and that "[Speaker Noreli] deleted those e-mails after reading them and they are not longer available in the office's computer system."

2. He did not address the request for Fraud Counsel so I will send him a copy of this post asking for a response to that request.

3. He did not address my request to file this post with the Interim Study Committee so this post also therefore asks for a substantive response to that.

Here is what Bill Kenney and I sought; read it in the comments.

The problem with his response is that it cites no legal authority whatsoever (compare generally Judicial Watch, Inc. v. United States DOC, 29 Media L. Rep. 1146) and seems to stand in opposition to HB 1408 which had already been in motion well before she deleted the emails. Obviously it was introduced prior to HB 1428, probably about 20 bills earlier if I were to take wild guess. And whether they are deleted or not, I want them. Generally we know that the files are still obviously available on the hard driver/backup/mirror so then the only questions is can the Speaker show by clear and convincing evidence that the public interest is best served by not disclosing the record as clearly outweighing the public interest served by disclosure of the emails. These are public emails to public employees in their official capacity about a public issue involving public monies Attorney Frydman so I ask you to evaluate your response to me by the end of April, 2008. After that point I may file suit at any point in time.

III-a. Governmental records created or maintained in electronic form shall remain accessible for the same retention or archival periods as their paper counterparts. Methods that may be used to accomplish this requirement include, but are not limited to, copying to microfilm or paper or to durable electronic media using standard or common file formats.

III-b. A governmental record in electronic form shall no longer be subject to disclosure pursuant to this section after it has been initially and legally deleted. For purposes of this paragraph, a record in electronic form shall be considered to have been deleted only if it is no longer readily accessible to the public body or agency itself. The mere transfer of an electronic record to a readily accessible ?deleted items? folder or similar location on a computer shall not constitute deletion of the record.

So then is it your position Attorney Frydman that you can just delete the files and avoid providing them to me? This is a crucial issue and I find it hard to believe that Speaker Norelli would just delete these emails. Further if she deleted them they should still be in the deleted items folder. I would wonder why the Speaker would go to the lengths of further deleting them from the deleted files that would seem ridiculous in light of the fact that there is an interim study going on; shouldn't emails from the public have been made a part of the file?

I like my chances in Court on this if I chose to file an Action and I may do just that when Defendants Ayotte and Franconia give me the money they owe me from 07-E-268 but first I will await your further response, and of course Kelly's check when Judge Vaughn gives her an amount to pay, which will likely happen in early May or even late April.

Full post as published by Chris King's 1st Amendment Page on April 24, 2008 (boomark / email).