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: Chris King's 1st Amendment Page

KingCast presents on the eve of Franconia Selectman election: A Decision on the Merits in KingCast v. Ayotte and Town of Franconia, 07-E-268.

By Christopher King

The Decision is 31 pages long. Kelly took some hits. I'm not done reading the Decision. That will take me a day or two to digest and let it sink in. Sure I lost some things I think I could have won on but that's okay. What I did win, is huge. I will pick at this Decision like a fine piece of warm pecan pie with Hagen Dazs French Vanilla Ice Cream a la mode.
Regarding the video of the 5/11 dash cam:

[KingCast] may copy the original video under supervision of custodial police authority.

And the AG's office got dinged for failing to provide protocol regarding homicide investigations:

"The Court has reviewed the cases and affidavits on which the Attorney General's office relied in originally denying the Petitioner access to its protocols for investigation of a homicide and finds that such withholding was not justified."

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As KingCast requested, the State was ordered to provide some Affidavits as to the validity and depth of their purported searches for information, which is good:

As to the Troy Watts Complaint against Bruce McKay (here it is, and to KingCast one of the 3 most important issues) the Court wrote:

In this case, the Petitioner has demonstrated several positive indications of materials that were not located in the search, including Attorney Watts' statement as to the existence of his complaint against Officer McKay, and a document that may be the requested police report, inadvertently disclosed (KingCast is in possession of what appears to be a police report that Franconia claimed not to have!)

The Franconia Defendants must therefore undertake another search, since this search lacks indicia of reasonableness. In order to establish to the Court that the Town has undertaken an adequate, reasonable search, affidavits by any personnel involved in the search should describe the locations searched, as well as the terms and results of any computerized searches. After a reasonable and adequate search, the Court will be able to determine whether RSA 91-A was or was not violated, even if the documents cannot be found.

Given the lack of New Hampshire precedent on this subject, it would be inappropriate for the Court to grant the Petitioner's motion for declaratory judgment under the Federal cases requiring an affidavit detailing a good-faith search. The declaratory judgement motion is accordingly not ripe. The Court will consider the Petitioner's Motion for a declaratory judgment after the respondents provide either an affidavit describing the search, or the documents themselves.

Note: KingCast placed Defendant and the entire Free World on notice of the case law of Truitt v. Dep't of State and Kean v. NASA long ago in the now-infamous "Dog can't eat your homework" post. The Court was most gracious to allow them one last chance. Let's see what they do with it.

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Also, the State is Ordered to provide many documents from Bruce McKay's personnel file for in camera inspection.

I will listen to the hearing again (available on YouTube by searching Franconia511 channel) but I could SWEAR that I heard Attorney Mullen specifically tell His Honor that he was at the time of hearing providing ALL of the personnel file for his in camera inspection AT THAT TIME.

I will listen to the audio again this evening for further explication and identify the salient portion of the hearing right here in a link right here.

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In my estimation the court did not fully address my argument that Franconia's initial outright denial of any of Bruce McKay's personnel file was a violation of RSA 91-A/FOIA.

That one's going upstairs for certain.

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Also, regarding the 150+ responses to the Franconia Recovery and Reconciliation Committee, I had publicly acknowledged in the audio of the hearing and in the Pleadings that the documents are not yet public record because they have not been provided to the Town for the PAST 9 MONTHS despite promises to do so. The Court denied my request for production and stated that the proper remedy was to seek an appeal rather than continued jurisdiction.

I am now picking and choosing the KingCast issues for appeal, and I'm sure the State is looking at its options as well.

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As for assessment of costs and fees, the court ordered further briefing on those issues. At this point I will remind the entire Free World that Punitive Damages have been awarded in FOIA cases, and as RSA 91-A follows FOIA, the possibility exists for such an award in the case at bar. All of that law is thoroughly briefed and argued and may be heard in the YouTube/KingCast/Franconia511 audio.

That is all for now.

I have a lot of motorcycles to sell --yah, I'm Internet Manager at Best Cycle and #1 seller last month and this month and hope to rock that trend coming into the busy season so I can replace the Clydesdale (RIP) -- and I've a lot of work to do on this and many other cases.

Related post: Capleton, Oliver Ruff, some of Liko's Friends and KingCast are all living in the Danger Zone.

Namaste.

Full post as published by Chris King's 1st Amendment Page on March 10, 2008 (boomark / email).