Secret Approval, Shifting Stories, and the Temerity to Seek Sanctions

Secret Approval, Shifting Stories, and the Temerity to Seek Sanctions

This case never should have existed.

It arose from a government agreement that was never lawfully approved, was defended through a series of false and misleading representations, and ended with the Town of Newmarket and its lawyers having the temerity to ask that the citizen who uncovered those defects be sanctioned and forced to pay their legal fees.

That sequence alone should trouble anyone who cares about open government in New Hampshire.

The Problem Began With a Simple Question

After signing a settlement agreement with the Town of Newmarket, I attempted to confirm that the agreement had been lawfully approved by the Town Council, as required by law. I searched for public or nonpublic meeting minutes approving the agreement.

There were none.

No notice.
No meeting.
No vote.
No record.

I made a Right-to-Know request because I did not want to be a party to a government contract formed in secret. That request should have prompted disclosure or correction. Instead, it triggered a cascade of false and misleading statements that would continue for more than a year.

August 28, 2023: “No Records Exist”

On August 28, 2023, Town Manager Stephen Fournier denied my Right-to-Know request, stating that no records existed showing Town Council deliberation or approval because the matter involved attorney-client consultations.

That statement was false.

Later filings by the Town and its attorneys admitted that emails existed involving Town Council members and Town legal counsel concerning approval of the agreement. Emails are records. Privilege does not erase their existence.

This was not a technical mistake. It was a categorical denial that the Town later abandoned when confronted with the record.

The Story Changes: Approval by Email, Not a Meeting

When the denial was challenged, the Town—through its attorneys at Donahue, Tucker & Ciandella (DTC)—changed course. In its answer to the Right-to-Know Ombudsman, the Town admitted that the settlement decision:

“was not conducted at a Town Council meeting, but was the product of Town Council email responses to the Town’s legal counsel.”

That admission directly contradicted the August 28 denial and conceded collective deliberation and approval outside any noticed meeting—precisely what New Hampshire’s Right-to-Know Law forbids.

Emails Are Records—Until They’re Not

Having admitted approval by email, the Town then asserted that those same emails were “not public records” because they were privileged.

That position misstates the law. Privileged records are still records. They may be withheld or redacted, but they do not cease to exist. The Town cannot deny the existence of emails, rely on them to claim approval, and then argue they are not records at all.

This was not confusion. It was inconsistency deployed as strategy.

Approval Without Any Lawful Process

Despite admitting there was:

• no public meeting,
• no nonpublic session,
• no notice,
• and no recorded vote,

the Town insisted it was “inaccurate” to say the Town Council had not approved the agreement.

Approval, however, requires a lawful process. There was none.

When this contradiction was exposed, the Town minimized the violations as merely “technical” and argued that citizens could not prove prejudice from secret deliberations. That argument turns the law on its head. The Right-to-Know Law exists because secrecy itself is the harm.

Citizens are not required to prove what would have happened had the law been followed.

Ratification by Lawsuit: An Extraordinary Theory

The Town then advanced an extraordinary proposition: even if the agreement was never lawfully approved, it was later “ratified” simply by filing suit to enforce it.

Under this theory, a public body may:

• bypass statutory approval requirements,
• conceal the process from the public,
• and then cleanse the illegality through litigation—

all without ever holding a lawful meeting.

That is not transparency. It is retroactive justification.

From Bad Faith Conduct to a Demand for Sanctions

Against this backdrop—false denials, shifting explanations, mischaracterization of records, and novel legal theories—the Town and DTC accused me of bad faith, vexatiousness, and harassment, and demanded attorney fees and sanctions.

No evidentiary hearing was held.
No findings of bad faith were made.
The Supreme Court issued no written opinion endorsing the Town’s narrative.

Yet the Town asked to be paid anyway.

That is the most revealing part of this case.

A public body and its lawyers may:

• deny records later admitted to exist,
• change factual explanations when challenged,
• minimize statutory violations as “technical,”
• and avoid evidentiary scrutiny—

and then accuse the citizen who objected of acting in bad faith.

That inversion of accountability is itself evidence of bad faith.

Why This Matters to New Hampshire

If public agencies may act this way—and then seek sanctions against citizens who insist on transparency—the Right-to-Know Law becomes a weapon against the public rather than a safeguard for it.

This case never should have been brought. It should have ended the moment it became clear that the agreement at its center was never lawfully approved. Instead, it became a cautionary tale about how far some institutions will go to defend secrecy—and how quickly they will accuse others of misconduct to avoid accountability.

The real question is not why a citizen objected.

It is why a public body, confronted with its own inconsistent record, believed it was entitled not only to enforcement—but to punishment.