BAR HARBOR — The Town Council is issuing a request under the Freedom of Access Act (FOAA) to members of last year’s General Government Subcommittee of the Warrant Committee for documents and correspondence. The decision, taken in a 6-1 vote Tuesday, comes after only one of five subcommittee members provided documents in response to a more informal request sent Feb. 7.
Town attorney Ed Bearor said if the documents the council is asking for exist, they are public documents. The council asked for “all documents, emails and correspondence, Facebook, Text Messages, or other Social Media that you have or had in your possession that involve Article 12 or 13 between the dates of February 1, 2017 thru June 30, 2017, to assure that ordinances and open meeting laws are being followed.”
“These are three or more people serving on a public body who are meeting and discussing public business,” Bearor said. “If they were meeting to talk about whether to withdraw from Afghanistan, we wouldn’t be having the conversation.”
Bearor also said a conversation between three members of a committee via email could be considered a meeting. Emails between two members of a committee could be construed as a public document.
Councilor Matt Hochman said he was frustrated and confused by the responses of the subcommittee members.
“If there was nothing inappropriate in the documents, they are still public documents, and they should be turned over,” Hochman said.
Councilor Paul Paradis said the council has not accused anyone of anything with the request.
The request is to Jake Jagel, Donna Karlson, Seth Libby, John Kelly and Jonathan Eno. Libby is included even though he already supplied documents because several councilors said the formal request should not exclude him.
The request will be sent to Eno and Karlson through their legal counsel.
Town Manager Cornell Knight said Wednesday that the town is issuing a FOAA request to ensure that the members of the committee comply with the request. He said Bearor recommended a FOAA request but was not concerned about the initial, informal request.
“It was an informal way, but I’m not so sure it was an incorrect way,” Knight said. “The town attorney was okay with a public body asking for documents from another town committee.”
The FOAA request will be made under Knight’s name. Bearor explained that the council filing a request could be awkward because the language of the FOAA says “a person” has the right to inspect and copy public records.
Councilor Gary Friedmann, who cast the only vote not to file a request, said filing this request would not likely “advance constructive discussion.”
“I think we made our point,” Friedmann said. “We asked for the documents, they don’t want to turn them over, let the public decide. Even if we FOAA them, they still aren’t going to show us anything that’s self-incriminating.”
Paradis said that the Warrant Committee and other boards should be held to the same standard as the Town Council.
“When people ask for documents from us, we produce them, and we’re held accountable,” Paradis said. “I don’t think we should expect anything less from our boards or committees.”
Once the FOAA request is filed, recipients have five working days to acknowledge the request. If a recipient refuses to turn over documents, an appeal could be made to any superior court, which could issue an order to release the documents.
Art Greif, Karlson’s attorney and husband, responded to Knight’s request on Feb. 11 saying Knight did not cite “any express authority” to make the request and Karlson does not frequently use email or social media.
Knight responded in a Feb. 14 email that Warrant Committee members were subject to FOAA requests and that he had received emails from Karlson in the past.
In an email to the Islander send March 5, Greif contended that both the “investigation of elected officials” the request represents and the executive session held Feb. 6 to discuss the Blanchard zoning lawsuit may have violated state law, since the first request for documents came after that session.
The council “held an executive session concerning the ‘investigation’ of a ‘group of public officials’ without allowing the ‘person charged or investigated to be present at an executive session’ as … the Freedom of Access Act mandates,” Greif wrote.
Jagel said in a Feb. 12 email that he would not be able to respond to Knight’s request by the Feb. 21 deadline.
“The timing of your request clearly conflicts with my ability to fulfill my responsibilities as a Warrant Committee member and Chair of the General Government Subcommittee to review the proposed budget and proposed Land Use Ordinance amendments and make recommendations to voters within legal deadlines mandated by the Charter,” Jagel wrote.
He also asked Knight to explain the ordinances that he believes the subcommittee breached.
Kelly also responded to Knight’s request on March 5. He said that he did not have any public records to turn over. Kelly said that he read the 49-page selection of documents that Knight posted on the town’s website, in which he is named once by Carol Chappell and copied three times as a member of the ferry terminal property advisory committee.
“Remarkably, I cannot find any grounds or understand any reason why the Town Council, or you as Town Manger, would include me in the investigation of ‘certain citizens serving on the Warrant committee who have actively worked behind the scenes to influence the position taken by this committee,’” Kelly wrote.
Eno, through his attorney William Dale, complied with court instructions earlier in the year to supply documents in the zoning lawsuit to which he is a party. But neither Eno nor Dale has responded to the more recent request from the town, sent Feb. 7, according to Knight.
Dale did not reply to the Islander’s request for comment by press time.