NH Supreme Court asked to define governor's executive privilege
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Sep. 28—CONCORD — Both sides in a legal dispute over open records asked the state's highest court, for the first time, to spell out when Gov. Chris Sununu can claim executive privilege to keep documents secret.
Louise Spencer, a liberal activist and co-founder of the Kent Street Coalition, sued Sununu's office over email contacts his staffers had with a national Republican political action committee before and after Sununu vetoed a 2019 bill to create an independent redistricting commission.
The suit maintained Sununu's office shouldn't be exempt from the state's Right-to-Know Law.
Even if it was exempt, the suit argued these records should be released in keeping with the state Constitution's Part One, Article 8, which holds the "public's right of access to governmental proceedings and records should not be unreasonably restricted."
"The governor does not need to engage in secretive communications with partisan operatives," said Katherine Anthony, managing counsel with American Oversight, a Washington-based non-profit and non-partisan group that supports lawsuits over open records.
A lower court judge ruled Sununu's office was exempt from the Right-to-Know Law.
Merrimack County Superior Court Judge John Kissinger further decided these emails were not governmental records and, as such, should be private under the governor's inherent executive privilege and his right to secrecy when it comes to deliberations within his office.
Assistant Attorney General Jennifer Ramsey urged the New Hampshire Supreme Court to address executive privilege in deciding the case.
"I think this is the appropriate opportunity for the court to address its view regarding executive privilege," Ramsey said.
She noted federal courts have ruled the president and his staff are exempt from the Freedom of Information Open Information Act.
Supreme Court Associate Justice Patrick Donovan pointed to the case's significance.
"You have given us a tall order, it would seem," he said.
Ramsey said the state Constitution clearly intended the governor's office to be exempt from the Right-to-Know Law, just as the Supreme Court and the Legislature are.
"The governor and his personal staff should be excluded, otherwise you are impairing an executive office protected under the Constitution," Ramsey said.
The Legislature has chosen to adopt rules which make its deliberations over legislation public, she noted.
The state's highest court in 2002 denied a records requests under the Right-to-Know Law made of then-Gov. Jeanne Shaheen's office, but it's never weighed in on a governor's executive privilege.
11 emails at issue
At issue are 11 emails that two staffers for the governor had on private email accounts two years ago with the office of former Wisconsin Gov. Scott Walker.
In 2019, Walker was finance chairman of the National Republican Redistricting Trust, which coordinated the GOP's 50-state redistricting effort.
Sununu vetoed redistricting commission bills in 2018 and 2019.
Legislative sponsors made changes in 2019 to satisfy Sununu's objections from 2018, and they were surprised at his second veto.
Two weeks after that 2019 veto, Walker wrote an op-ed column praising the decision.
The following January, Walker came to New Hampshire for a reception with GOP lawmakers. Walker said the state Legislature, and not an independent panel, should be redrawing election districts every 10 years.
Ramsey said those emails were not government documents, but communications with private parties about "political messaging" as both Sununu staffers, Christopher Elms and Benjamin Vihstadt, also did volunteer work for the governor's election campaigns.
Anthony said Sununu has a right to claim a privilege when it comes to deliberations with office staff, but that shouldn't extend to "external party" contacts with staffers.
Extending the privilege could extend to any contact a Sununu's staffer might have with a lobbyist trying to influence pending legislation, she said.
"Communications with a partisan organization with its own interest would not be 'candid, objective advice,'" Anthony said.
Spencer's lawyer further maintained the governor's policy of having staffers delete all unnecessary emails after 30 days was also unconstitutional.
But Ramsey said Spencer's lawyers didn't make the email deletion policy part of the original lawsuit, so that issue wasn't properly before the Supreme Court.
