Right to Know advocate proves Nashua acted in bad faith

Once again, Laurie Ortolano proved in court that Nashua repeatedly violated the Right to Know of its citizens. But, for the first time, Ortolano also proved that Nashua officials violated the law in bad faith. Except for a technicality, the court would have likely slapped those officials with personal civil penalties of $250 to $2,000 plus court costs. Nashua was also enjoined from similar future violations of the law.

The court order in Laurie Ortolano v. City of Nashua, et al., 226-2022-CV-309, ran 50 pages and was issued on July 24 by Justice Charles H. Temple. In the order, the court found Nashua violated RSA 91-A repeatedly:

Failed 4 times to respond to a records request in violation of RSA 91-A:4, IV. Id. at 14, 22, 32, 42.
Failed to provide an adequate response to a records request in violation of RSA 91-A:4, VI. Id. at 18.
Failed to post minutes of meetings within 5 days in violation of RSA 91-A:4. Id. at 24.
Failed to post minutes consistently on their website or provide notice on their website where meeting minutes are posted in violation of RSA 91-A:2, II-b (a). Id. at 24.
Failed 4 times to post notice of a meeting in 2 places and failed to post notices consistently on their website or provide notice on the website where meeting notices are posted in violation of RSA 91-A:2, II. Id. at 16, 29, 37, 41.
Failed 2 times to post notice of a meeting consistently in violation of RSA 91-A:2, II-b (b). Id. at 19, 41.
Based on some of these violations, the court found "there is a strong basis to believe" that Director Cummings and possibly other Nashua officials acted in bad faith and could be forced to pay civil penalties:

To reiterate, for the reasons stated earlier, the Court finds that the City violated the RTK Law by:

(i) holding unnoticed and non-public DIC meetings on January 14 and February 11, 2022;

(ii) failing to post the minutes from the DIC meetings within five days on the City's website; and

(iii) failing to respond either adequately or at all to requests made pursuant to RSA 91-A by Ms. Ortolano.

After considering all the evidence, the Court is left with the inescapable conclusion that Director Tim Cummings and potentially other City officials were trying to hide these meetings from the public. See Porter v. Town of Sanbornton, 150 N.H. 363, 369 (2003) ("Bad faith involves more than mere bad judgment or negligence. Bad faith implies conscious wrongdoing. To carry the heavy burden of proving bad faith . . . one must demonstrate intent to injure or intent to disregard duties."

The antagonistic tactics employed by City employees from December 2020 to February 2021 evinced their intent to avoid the production of specific documents in a timely and reasonable manner to curtail citizens' ability to access DIC meetings. Here, there is certainly a strong basis to believe that certain City employees acted in bad faith. However, none of these individuals are named in Ms. Ortolano's lawsuit, and therefore the Court will not impose a penalty against individuals not named as a party to an action. Had these individuals been named as a parties, the Court would have seriously considered civil penalties in accordance with RSA 91-A:8, IV.

Beyond the strong basis of bad faith of these individuals, the court further enjoined Nashua from improperly posting all public meeting notices and minutes in the future.

To learn more about Right to Know New Hampshire go to https://righttoknownh.wordpress.com/