Freedom of access complaint filed against Perry selectman -- The Quoddy Tides, Eastport, Maine

On Monday, March 26 (sic; February 26), Ronald Rosenfeld, M.D., of Perry filed a Freedom of Access appeal and complaint against Selectman David Turner and the Town of Perry. Rosenfeld's attorney, John Foster, filed the complaint in Washington County Superior Court. In a letter dated February 12, Rosenfeld had requested that Turner, chairman of the Perry Board of Selectmen, make available to him copies of public records and documents concerning the proposal of Quoddy Bay LNG to site a facility within the Town of Perry that were made or received by Turner.

Rosenfeld requested "all letters, e-mails or other written communications concerning the Quoddy Bay proposal made or received by any attorneys working for the Town of Perry from January 1, 2006, through the date on which you respond to this request." The Freedom of Access complaint also asked for "all contracts, agreements and proposals, together with all draft contracts, agreements and proposals, sent by selectmen or their attorneys to Quoddy Bay LNG or to the attorneys for that company regarding the Quoddy Bay [LNG] proposal from January 1, 2006, through February 5, 2007." The fourth request was for "all contracts, agreements and proposals, together with all draft contracts, agreements and proposals sent by Quoddy Bay LNG or its attorneys to the Perry selectmen or to the Town of Perry's attorneys regarding the Quoddy Bay proposal from January 1, 2006, through February 5, 2007." Rosenfeld wrote that he would accept electronic copies of the documents, but "that none of the foregoing requested documents be deleted from any computers, whether they be yours, your wife's, your employer's or the town's attorney's. I am putting you on notice that my right to receive and view the foregoing documents may become the subject of litigation, and any spoliation of the requested documents may subject you to legal penalties for destruction of evidence and/or criminal penalties for the destruction of property belonging to the Town of Perry." Rosenfeld closed the letter to Turner by writing, "Finally, as I understand it, the selectmen and their attorney met at least twice with Quoddy Bay representatives during the week of January 29, 2007, for the purpose of negotiating the terms of the proposal which is to be presented to the voters in March. I believe that the sessions between selectmen and Mr. Stumpfel alone may have been legitimate executive sessions, but I do not understand why the resulting sessions with Quoddy Bay to negotiate were also held in executive session and without notice to the public and the press." Rosenfeld asked for a reply from Turner within five business days.

Turner responded with an undated letter to Rosenfeld, stating, "The board of selectmen will discuss the release of the executive session material requested at our next meeting. We must vote to release this information, but I would anticipate the vote would be favorable. We will make this material available for inspection and copying shortly after the board of selectman meeting. Please be advised that the quantity of material may be more than you anticipate." Turner went on to explain that there were "16 binders of material at Eaton Peabody [town attorney] in addition to seven binders on FERC filings, five volumes for other LNG facilities and my documents fill one 24-inch file box."

Rosenfeld responded on February 21 to Turner, writing, "I am pleased that you feel the upcoming board of selectmen meeting [March 5] will vote to release 'executive session material.' However, your response does not address my request for all letters, e-mails, or other written communications; contracts, agreements, proposals, etc. I am reasonably certain that some of this material did not originate under the circumstance of an executive session. In Maine, failure to respond to a request is deemed a denial of that request. And the law gives me a fairly short time frame in which to appeal your denial." Rosenfeld again asked for the requested materials before February 26, "Otherwise, I will have to file a court action in order to protect my rights of appeal." On Monday, February 26, not hearing a response from Turner, Rosenfeld, through his attorney John Foster, filed the appeal and complaint.

Turner, in response to the lawsuit, said he was "out of town from February 14, two days after I sent him the response about the selectmen's meeting, until February 25. I was unable to respond to his last message." Turner said that he had received a summons to appear in court and he had referred the matter to the Maine Municipal Association (MMA). He also said that the town had Public Official Liability Insurance coverage, and he hoped that all legal fees would be handled by MMA at no cost to the town. Turner went on to comment, "Neither David Turner nor the Town of Perry has violated the FOAA provision of the law; the release of the information requires a vote of the board of selectmen. All executive sessions were posted properly, and the press was notified of each session. There was a legal representative at these sessions. Proper motions were made to go into executive sessions. We have released as much information as possible up to this time."