State's highest court denies request for Sununu emails
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Mar. 1—CONCORD — The state's highest court, in unusual fashion, upheld a lower court ruling and denied a liberal activist access to emails from Gov. Chris Sununu's office under the state's Right-to-Know Law.
The justices tied, 2-2, on the matter of whether the emails of staffers on private accounts were public records and whether they would fall under the claim of an executive privilege for the governor and his staff.
Louise Spencer, a co-founder of the Kent Street Coalition, sought communication that Sununu staffers had with the National Republican Redistricting Trust that former Wisconsin Gov. Scott Walker led to learn if the emails played a role in Sununu vetoing in 2019 a bipartisan bill to create an independent redistricting commission.
Supreme Court Chief Justice Gordon MacDonald did not take part in this case, presumably because he served as Sununu's attorney general at the time of these emails.
In its brief ruling, the four justices did not identify how they voted other than to confirm they were evenly divided on the question.
Citing the court's past precedent and the U.S. Supreme Court's own practice, they said the tie vote meant the decision of the lower court was affirmed because it could not be overturned.
Merrimack County Superior Court Judge John Kissinger had ruled Sununu's office was exempt from the Right-to-Know Law.
Kissinger had 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 had urged the high court in this case for the first time to weigh in on a governor's claim to executive privilege.
Tie vote has no 'precedential weight'
In 2002, the high court had denied an open records request regarding Gov. Jeanne Shaheen but had never taken a position on whether the governor could claim executive privilege.
"I think this is the appropriate opportunity for the court to address its view regarding executive privilege," Ramsey said during oral arguments in September 2021.
This decision while affirming the lower court does not create its own "precedential weight."
This means it does not bind a future Supreme Court from coming to a different finding regarding these legal questions.
At issue were 11 emails that two staffers for the governor had with ex-Gov. Scott Walker's office.
Sununu vetoed redistricting commission bills in 2018 and 2019.
Legislative sponsors made changes in 2019 to satisfy Sununu's objections from 2018, and said they were surprised at his second veto.
Two weeks after that 2019 veto, Walker wrote an op-ed column praising Sununu's decision.
Ramsey said the emails were not government documents, but communications with private parties about "political messaging" because the aides at that time, Christopher Elms and Benjamin Vihstadt, also did volunteer work for the governor's election campaigns.
Spencer's lawyer, Katherine Anthony, said Sununu had a right to claim a privilege when it came to deliberations with office staff, but that should not extend to "external party" contacts with staffers.
She argued even if Sununu's office was exempt from the Right-to-Know Law, these records should have been 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."
