The Nashua Legal Office - Case Study for the Abuse of the Attorney Client Privilege Exemption.

In June, I learned that the City legal office conducted Right-to-Know training for interested City employees. Learning about this during a deposition for my Right-to-Know lawsuit, my Attorney asked City Attorney Bolton to provide the training material. Attorney Bolton, provided no explanation and never provided the city training material.

On June 30, 2021, a citizen filed a RTK to request for this training material.  On July 7, 2021, City Attorney Neumann denied the request under exemption RSA-91A:5,IV – confidential attorney-client communications and work product.

The legal office considered materials to train employees on the law of open public records a secret. So much for transparency. The RSA 91-A has been a hotly contested and a costly issue in Nashua; public interest is high. One would think the Mayor would want to showcase that the City is training employees to understand the law and respond in a lawful manner. After all, the City had lost some recent RTK court cases.

I spoke with Aldermen June Carron in July and asked her to look into this matter and to please consider activating the City Municipal Records Committee. She provided no follow-up.

On July 5, 2021, I wrote to Attorney Bolton and asked if the training materials could be placed in the clerk’s office so I could inspect the records in City Hall. I filed a pro se RTK lawsuit and wanted to see this training material. Attorney Bolton fired back to my attorney claiming my attorney had the material (he did not) and that “if Ms. Ortolano appears at my office on Wednesday or any day she risks arrest.” Since his stroke in December 2021, Attorney Bolton has taken an even more hostile and aggressive tone. The material was not left in the clerk’s office for my review.

On July 6, 2021, I submitted a RTK request for the training material and on July 13, 2021, the City denied the material under exemption RSA 91-A:5, IV confidential attorney client communications and work product. I asked Attorney Leonard if she would assent to to a records review; she wanted to see the lawsuit first.

On July 8, 2021 I wrote to the Vice President of the NHRTK (New Hampshire Right-to-Know) Coalition to get feedback on the City’s response. I decided to file another pro se lawsuit on this denial and wanted to know if it was reasonable to request the court review the material to verify confidentiality. (This is called an in camera review).The NHRTK Vice President believed that the material was very likely not privileged and an in camera review was reasonable. I wrote up the lawsuit but did not submit it.

In one more effort to save court and citizen time and tax dollars, I contacted Alderwoman Elizabeth Lu and asked, in her elected capacity, if she would request the training material, and provide her opinion on the confidentiality of the materials based on the legal office exemption cited. She requested and received the materials and did not understand the reason for the City exemption. 

Ms. Lu was unable to ask the legal office to explain the basis for the exemption as she has been shut out of the legal office; Attorney Bolton refuses to provide legal advice to her.

In August, I contacted DPW Commissioner Tracy Pappas and asked if she would be willing to request the information as an elected official. She too received the confidential information and did not understand the city’s denial. I asked Commissioner Pappas if she would inquire with the legal office on this matter. She agreed and on August 18th emailed City Attorney Dory Clark.

Neither elected official disclosed the material to me.

On August 20, 2021, the City finally capitulated and provided the RTK training materials. It is now public information [1] [2] [3] [4] [5] [6]. On an interesting note, Attorney Neumann provided template response letters that employees could use to respond to citizen requests. Both template letters were for denials. This speaks volumes to the City position on open records. The Nashua Legal office trains employees under “right-to-NO”. 

It is absolutely ridiculous that the City would deny this material as attorney client information. This exemption is being abused by legal offices around the state and Nashua is the biggest offender. Hopefully, this case can be used in Concord this year to help change the law on the attorney-client privilege exemption.

Commissioner Pappas and Alderwoman Lu are two exceptional elected officials who were willing to represent the citizens who elected them. I know of no other Aldermen who would assist me. The efforts of these two elected officials (they are both up for re-election) who understand what service means, coupled with a few determined citizens caused the legal office to reverse the denial. Time and money saved; no costly, delayed, uncivil lawsuit necessary.