Court Throws Out Lawsuit Against School Superintendent

A judge has thrown out a right-to-know lawsuit against Concord School District School Superintendent stating that many of the documents were protected and the plaintiff didn’t file his requests correctly.

In a five-page decision issued on Dec. 28, 2011, Judge Richard McNamara denied each request forwarded by Roy Frazel, a former Concord resident and colleague of Barbara Higgins, a former high school teacher and now, Concord School Board member.

Frazel sought copies of emails on the school district’s server that contained his name, minutes from a non-public meeting held in December 2010, information about a state statute the district reportedly planned to use against Higgins before she resigned, and the properties of an electronic document to indicate that it was authentic. He said he was making the request in order to prove that the district “railroaded” Higgins out of her job.

McNamara wrote that Frazel “while not specifically citing 91-A” in the first three requests – information about the meeting, notes about a meeting between Rath and his ex-wife, and copies of the emails – he was informed by the superintendent appropriately by stating there were no public documents available to him.

The meeting, Rath stated, was not a public meeting but a consultation with legal counsel that is not accessible under 91-A, and the judge agreed with her.

In the case of the emails, Rath told Frazel that she had no emails in her inbox with his name on them. The judge ruled that since the emails had been removed from the server and segregated, due to potential litigation, Rath had complied with the request correctly when Frazel had asked for emails from the server and not emails that had been segregated.

“It is true that if he had requested the documents on a ‘litigation hold,’ (Rath) would have stated that they do exist and would have responded while reserving the right to claim that these documents are not government records but rather personal e-mails between (Frazel) and Ms. Higgins,” the judge wrote. “However, the Court need not decide this issue because it finds that based on the undisputed testimony, (Rath) complied with (Frazel’s) request for ‘all the documents on the Concord School District’s server.’”

McNamara also ruled that it was reasonable for Rath to perceive that follow up emails by Frazel were threats, not requests, despite the fact that Frazel had requested emails that had ever been on the server.

As for a verifying the authenticity of the letter, McNamara stated that 91-A does not request the school district to create new governmental records to answer a question. A ruling from earlier in the year also stated that 91-A does not request a public body to “compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency,” he wrote.

Responses to the verdict

In an email, Rath stated that she was “glad that the court found that our response was lawful and appropriate,” but did not offer any other comment.

Frazel said he was shocked by the ruling especially the determination that his second email was considered a threat and not a request. He said in email correspondence, Rath “pretended the emails did not exist" noting that there wouldn't be "emails on her account with my name on it because I never responded to her before ... and that's not what I asked her for ... I was asking for the emails on the server.” Frazel said it was also frustrating since the district’s attorneys brought prints of the emails into court on the day of the hearing, and could have satisfied his request by just giving them to him.

“They didn’t have to research and find them,” he said. “They knew where they were. It was ridiculous.”

While Frazel said he was disappointed with the results of the case, he plans to press on and will fine-tune his request, in order to get at some answers.

“It’s as I expected,” he said. “I’m going to ask for it differently.”

Higgins, who was not involved in the right-to-know request and has refused to discuss anything about her previous employment due to a gag order that was a part of her resignation agreement, refused comment for this story.