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KingCast Supplemental Motion to Reconsider: Why was Bruce McKay on medication, and why was he allegedly subject to attorney client privilege?

By Christopher King

Here is the linked version at Scribd.com.

I. The documents identified by Petitioner are not exempt by RSA 91-A:5.

Immediately after mailing his Limited Motion for Reconsideration Petitioner retrieved a letter from Franconia Counsel Dan Mullen, in which he essentially claims that all of documents in Bruce McKay?s personnel file are exempt. Defendant writes

?We believe Item P should not be disclosed because it contains medication information and thus it would be an invasion of privacy. Moreover, the document is protected by Attorney/Client privilege. Items TT and UU should not be disclosed because the documents are an internal personnel investigation and are exempt pursuant to RSA 91-A:5.?

The first thing that is striking is the fact that Bruce McKay was on some sort of medication. If it?s medication for a skin condition that?s one thing. But if he was on psychotropic drugs the public is entitled to know that because that would have an influence on, and be related to his performance on the job.

Moreover, Defendant does not offer an Affidavit or description of the document or how and why it is purportedly privileged. Unless there is some sort of pending litigation and the communication is between Bruce McKay and counsel pursuant to litigation, it?s not privileged and must be produced for the general public. In re Grand Jury Subpoena, 274 F.3d 563 (1st Cir. Mass 2001).

?The work product rule protects work done by an attorney in anticipation of, or during, litigation from disclosure to the opposing party. The rule facilitates zealous advocacy in the context of an adversarial system of justice by ensuring that the sweat of an attorney's brow is not appropriated by the opposing party.?

There hasn?t been any litigation involving Bruce McKay, so the documents are ipso facto not subject to privilege. The burden of proving the existence of the attorney-client privilege is on the party asserting the privilege. United States v. Cardiges, 881 F. Supp. 717 (New Hampshire District, 1995) Defendants had better be prepared to offer some serious explanations before this turns into a Federal Case.

Lastly, to be clear, the documents Petitioner has filed with the Court, as identified herein and previously identifed as Appendix Attachments KS 111 through 115, inclusive, do not fall within any exemption. They are simply training and job evaluaton reports. [KingCast note: Some of them are used as art for this post, which goes back to the Three Blind Mice post].

Petitioner thanks this Honorable Court in advance for its consideration of these matters that are quite complex in nature.

Full post as published by Chris King's 1st Amendment Page on March 12, 2008 (boomark / email).