Superior Court Hears Right-to-Know Case

A superior court judge heard arguments from both sides of a on Dec. 15, and will soon decide whether or not documents involved with a teacher's resignation earlier this year will be made public.

Roy Frazel, a former Concord resident, filed the court case against Concord School Superintendent , after she refused his request for documents and information in July. An attorney for Rath filed a motion to dismiss, stating that much of what Frazel was asking for was not public information.

In the case, which lasted about 40 minutes, Judge Richard McNamara listened to arguments from both sides, often making specific points or clarifying issues from the bench, in the middle of testimony from those involved in the case. McNamara also seemed to side with Edward Kaplan of Sulloway and Hollis, the attorney representing Rath, on some points.

Frazel requested the documents because he believes they will show that Concord High School teacher was pressured to resign from her job of more than two decades after becoming involved in the fight to save two historic school buildings from demolition.

In his petition, Frazel requested any and all emails on the school district’s server that included his name, minutes from a non-public meeting held on Dec. 20, 2010, information about statutes used against Higgins, and information to prove the validity of letter produced by Concord High School principal .

During his testimony, Frazel read from a memorandum from the attorney general that outlined what public records were, in language that was slightly different than the wording of the actual laws. He said interpretation of the language that certain documents were public, even if the school district said they were not. For example, Frazel said, the emails he was requesting were used to intimidate Higgins into resigning her position, he claimed.

“They were taken, printed, shown to this teacher, and that was the number one reason why she was forced to resign from the Concord School District,” he said. “[The emails] were actually to and from me.”

According to Frazel, former School Board member Laura Bonk told Higgins that there was a meeting that was being held with school board members and Rath to discuss firing Higgins. He said Bonk called the meeting “unethical.”

McNamara said that if the attorney was present, the meeting would be proper and the information did not have to be disclosed under 91-A, the state’s right-to-know law.

“That meeting was with counsel, is that not in dispute?,” McNamara asked.

Frazel said that according to the attorney general’s reading of the law, the school board would need to meet in public first beyond entering into non-public session even with an attorney. He noted that the school board’s calendar listed the meeting as “non-public,” so it wasn’t a private meeting with counsel but a meeting.

McNamara countered that the attorney general’s notice was helpful for guidance but he was stating his position, not necessarily the law.

Frazel said he was seeking meeting minutes which would indicate who was at the meeting and the topic being discussed, not necessarily attorney-client privileged information.

When Frazel tried to explain why he was asking for information about a statute that was reportedly used against Higgins, keeping her from binding arbitration, Kaplan interrupted, saying it was inappropriate to mention anything Higgins said since he would not have the ability to cross-examine her.

“The individual he is commenting on is not in the courtroom,” he stated.

“If they would agree to release her from her confidentiality agreement, I’m sure I could get her here within 10 minutes,” Frazel said.  

“It’s your burden, not their burden, to provide evidence,” McNamara said.

McNamara asked if this was in the original request for information and Frazel said it wasn’t. But he added that he had exhausted all opportunities to work with the district to get information. School officials, he said, told him to go to court.

McNamara also asked about the Connolly letter and said it seemed as if Frazel was asking the school district to create information for him. Frazel countered that the letter was a public document since it was used in a personnel matter against Higgins, claiming that she was abusing sick leave. He said there should be an electronic timestamp on the server showing when the letter was created.

School attorney responds

Kaplan pointed to specific exclusions in 91-A that protected information and documents between officials and attorneys away public view. He also challenged some of Frazel’s assertions.

“Many of his interpretations are incorrect,” he said.

Kaplan said Rath didn’t attend the Dec. 20, 2010, meeting. Calling it “a non-meeting,” Kaplan said school district attorney was in the courtroom and would testify that the non-meeting “was about procedures that board members could follow in the event that a teacher elected to go forward with a public or non-public termination hearing.”

“The concern was what they were going to do in connection with possible student testimony, at this hearing,” he said. “How would we protect the kids in the event of the hearing requested to be public … There were absolutely no discussions of the merits of the case … This is routinely done and it needs to protected so that clients can meet with their counsels.”

McNamara agreed with Kaplan.

“There are no minutes because there wasn’t a meeting,” Kaplan added, reading from the statute stating that attorneys didn’t need to schedule or do anything to inform the public when they are meeting with their clients.

McNamara asked about the use of the emails that were used to discipline Higgins and Kaplan said, “He should have asked for those emails but he didn’t.”

Kaplan said his petition asked for any emails with his name on the server that existed in July 2011. However, according to Kaplan, Frazel’s name didn’t exist on the server during the time period when Frazel was emailing Higgins and when he requested the emails. Kaplan added that the school district printed out all the email interaction between Frazel and Higgins and had them in the courtroom.

“You can look at them if you like,” Kaplan said to McNamara, “but they weren’t on the server.”

Rath then testified that when she received the request, she talked to the IT team and asked them how she could fulfill the request. The IT team reportedly told her that they couldn’t search the system without checking every mailbox. Rath told the team to search her mailbox and Higgins’ mailbox for Frazel’s name and the IT team did not find his name on the server.

Rath said previously, she received a complaint about a teacher misusing the district’s email account according to acceptable use policy. She had the IT team search the emails and found emails between Higgins and Frazel, and segregated them from the server. Kaplan asked if during the one year time period between when Higgins was emailing with Frazel and his request, had the server been changed, and she said, “Yes.”

Surprised, Frazel stated, “Am I to understand that the emails that I requested are here? They are actually in this courtroom?”

McNamara said the position of the school district was taking was that they were removed from the server so they technically were not requested properly.

Kaplan added that the emails were not accessible under 91-A because they were not public records. However, McNamara asked for clarification on why, if they were used as a way of reprimanding a teacher. Kaplan said they weren’t used to terminate Higgins and were not used in any body or board or a hearing. He said even if they were presented in such a way, he would still fight their release.

“This individual was not terminated,” he said. “There was no use of any emails that led to any individual’s termination in the Concord School District. Merely because an individual might consider the personal record in finally reaching a conclusion, with their counsel, to resign from the district, doesn’t turn a file of material into a public record.”

Kaplan said if Frazel re-filed, he would still deny the request, and the two could go through another court proceeding.

Frazel challenged the assertion but McNamara stated, “I think what he’s saying is that you didn’t ask for the right documents … the documents weren't on the district server.”

Frazel countered that he made more than one request for the emails and they were not just related to emails being on the server. He said he asked for the emails that were used to “railroad” Higgins into resigning. Frazel said he asked for every single email that was ever on the server.

"They have them right here in court," he said.

Kaplan then countered that the second request by Frazel wasn’t considered a 91-A request but instead, a threat, since Frazel stated in the email that he didn’t want the emails to become public and would hold Rath personally responsible if they did. Frazel said he was upset at the time he wrote the email, it wasn't meant to be a threat.