NORWICH — Resident Christopher Katucki, who runs a news blog called the Norwich Observer, filed another lawsuit against the town last month, citing five separate violations of the state’s Public Records Act.
Three alleged violations involve disclosure of quorum Selectboard emails and town meeting information from town clerk to the town manager with a copy to the Selectboard chair.
The second two counts involve a condition by the town manager for how Katucki may not share or publish the documents he has been provided without paying a fee of nearly $550.
As Norwich grapples with the lawsuit, town officials have questioned the advice they’ve received from legal counsel, citing potentially unnecessary redactions to the requested emails.
“Now we have a lawsuit on our hands. I don’t understand how we got there,” Selectboard Chairman Kimo Griggs said at a meeting last Wednesday.
This is not the first time Katucki has sued the town. The Selectboard is currently working to remediate several open meeting law violations brought forth by Katucki in April. And that came after the town settled a 2023 lawsuit from Katucki over open meetings.
The open meeting law violations were a result of email communications between a quorum of Selectboard members. The May lawsuit evolved from Katucki’s difficulty in securing those emails, among others, from the town.
Despite Norwich having acknowledged the recent violations, and adopting new policies, Katucki has asked for further remediation related to transparency. The town may have assuaged his concerns over open meeting law, but his concerns over public access to records devolved into a civil suit.
On Feb. 2, Katucki requested all written communications among or between Selectboard members from Jan. 1 through Jan. 31 of this year, and all written communications from the town manager to any Selectboard member during the same period, according to the complaint, filed May 4 in Windsor Superior Court.
Town Manager Brennan Duffy, as the custodian of public records, provided 317 pages of documents to Katucki, with over 150 redactions. Duffy denied an administrative appeal for the missing details.
From the court, Katucki requests an order that the town produce unredacted records and pay his legal fees, as well as declare that the exemptions were unlawful and that the imposed charge to share the records was not authorized under the Public Records Act.
Asked by Griggs at the May 27 special Selectboard meeting why he applied the redactions, Norwich’s attorney Bariah Smith of Burlington-based SP&F Attorneys, replied that he was simply following orders.
Smith explained that there are exemptions under the public records access law that allows for redactions or withholding of records, and the town manager asked him to apply all exemptions possible.
Aside from the number of redactions, some Selectboard members expressed concern over specific areas where Smith applied redactions. For example, in a January email exchange that ended up being a source of Katucki’s open meeting law complaint due to a quorum conversation, Selectboard members at the time deliberated on whether or not it was appropriate to propose an executive session for the next meeting regarding a personnel issue.
In the unredacted email thread — published to May 13 meeting minutes — Griggs, along with Selectboard member Matt Swett and former member Priscilla Vincent, all expressed reluctance or disapproval of holding an executive session at the meeting.
The redacted version of this conversation among members removed their concerns regarding the executive session, which Selectboard Vice Chairman Brendan Classon said he thought may have been an intentional request by the town manager.
“Were you instructed by the town manager to redact that exculpatory evidence, specifically their concerns about going into executive session and their cautionary guidance to each other, albeit outside the open meeting law guidelines?” Classon asked Smith.
“Yes, I believe,” Smith responded.
Duffy, via Zoom, spoke up to clarify that he never instructed Smith to apply redactions to specific records over others.
“What Mr. Classon seems to be alleging here is the town manager, myself, told Bariah he should go through and make it look better or worse for members of the Selectboard,” said Duffy.
Duffy insisted that the allegation was false.
As a reason for applying redactions, Smith pointed to 1 V.S.A. § 317, which lists over 40 circumstances that allow municipalities to withhold public records under the Public Records Act.
An exemption that Smith said applied to the email thread proposing an executive session involves situations where members provide opinion, speculation or advice.
“The reason for that is to allow for frank discussions among government officers to allow them to come up with some ideas that they might not otherwise say in public,” Smith said during the special meeting.
According to the exemption Smith referenced, denial to provide “records of interdepartmental or intradepartmental communications” is permitted for a town to the extent those documents include information preliminary to a policy determination or action.
“Counsel is effectively being asked to assess the merits of their own prior advice,” Katucki said in a May 24 email to the Selectboard summarizing his lawsuit.
Resident John Carroll, a former state senator and former chairman of the Vermont State Board of Education, argued in a public comment that the Selectboard is not a department, but rather a legislative body, and therefore email exchanges involving opinions are not protected by that specific provision.
Classon noted that the redactions span across 12 different matters, including various town projects and standard meeting procedures. He said that while Smith’s “credibility as a redactor” is concerning, the town manager is ultimately responsible for the manner in which public records are distributed.
Another part of the lawsuit involves a dispute over how the records were made available to Katucki and what rights he had to them.
While requesting possession of hundreds of pages of emails comes with a fee for staff time, reviewing such records is free of charge. Katucki, however, is not physically able to look at the documents in person at town hall due to his condition of Amyotrophic Lateral Sclerosis, commonly known as Lou Gehrig’s disease.
“I am essentially homebound, cannot communicate in real time and am confined to a power wheelchair. I have extremely limited use of my right hand and no functional use of my left hand,” Katucki wrote in a February accommodation request.
In the interest of accessibility, Duffy opted to make the records available via a ShareFile link, a secure online URL to access documents. When Katucki notified the town that his method of taking notes would be to screenshot the records, Duffy said that he may not distribute or publish them without paying a fee of $545.
The town produced an itemized breakdown of staff charges, citing approximately 16 hours of work by the town manager in producing the records at over $34 per hour between Feb. 2 and Feb. 20.
In a May 26 memo, Classon requested that Smith go through the merits of each individual claim and cost estimates, as opposed to generally stating that the town needs to fight the lawsuit.
“I would prefer to see the vital legal affairs of our Town in the hands of a law firm that I better understand and therefore, one that I trust more,” wrote Classon in his memo.
While the Selectboard did not take action Wednesday, Griggs expressed hope during the meeting that the town can settle the lawsuit “quickly and amicably.”
