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Selectman takes Exeter to court for access to information

Sunday News Correspondent

August 10. 2013 10:29PM

EXETER - A selectman refuses to back down after taking the town and Town Manager Russell Dean to court over allegations that the town, and Dean specifically, have shown a pattern of failing to promptly respond to requests for public records.

Francis Ferraro filed suit against the town and Dean last month after he said he wasn't given information he had requested pertaining to the costs and operation of a solar array installed at the town's wastewater treatment plant more than a year ago.

A former vice president of government affairs and communication for Wheelabrator Technologies, Ferraro, who retired in 2010, said he wants to see how successful the solar project is since the installation, but getting the information has proved challenging.

"I'm an engineer by education. I like looking at numbers. The first year has passed in the operation of the system, and I'd like to see how we're doing. I'm hoping it will do better than expected because then we'll save money," he said.

Ferraro said he has since received some of the information requested, but it only came after he filed his petition under the state's right-to-know law, RSA 91-A, in Rockingham County Superior Court on July 31.

While he has been given information, Ferraro said he still plans to move ahead with the court action because he wasn't given everything he requested.

"I regret having to take the action, but there has been a pattern of non-responsiveness on the part of the town. I didn't take this action lightly. I pondered over it for quite some time and decided someone had to take action on behalf of the citizens to make sure we have an open and transparent government," he said.

On Friday, Dean said he hasn't heard from Ferraro that the information he was given was "incomplete in any way."

"If I do, we would follow up," he said.

Dean said he feels the suit should be dropped and insists that the town has an "excellent" track record when it comes to right-to-know requests.

"Our office and other town offices have handled numerous right-to-know requests over the past three to five years. Our overall track record I would rate as excellent as far as our responses to legitimate requests. When further follow up is required on a request, we attend to that as well. If you looked over the volume of requests versus our responses, I don't think you would see a pattern of delayed responses or failures to respond," Dean said.

He added, "On occasion, someone will follow up with a further request after an initial request and we've clarified in that instance what has been asked for and then respond. Sometimes that process will take more than five business days, depending on what is requested."

According to the petition, the government records Ferraro sought were "immediately available" because they consisted of invoices from the electric company and the solar cell array vendor.

Ferraro's petition specifically cites RSA 91-A:4 IV, which states in part: "Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within five business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied."

Ferraro maintains the town failed to respond within the five days.

"Defendants have a record of delaying response or failing to respond to legitimate requests for government records," the petition said.

Ferraro's petition asks the court to impose penalties for the failure to comply with the right-to-know law. The petition specifically requests that Dean be required to reimburse the town for any legal fees or other costs associated with the request.

Dean would not comment on who should be responsible for the costs no the litigation. When asked about Ferraro's request that he reimburse the town for attorney's fees, Dean said he wasn't surprised by the request.

As for the success of the solar array, Dean said that after reviewing information, it appears the array is "doing what was intended."

"A grant paid for the installation of the structure, and the budget for electricity has not increased as a result of having the array in place, so overall I think we're doing just fine with it," he said.

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