By Mike Donoghue, Senior Correspondent
Local lawyer Nicholas “Nico” Seldon has filed a civil lawsuit against Municipal Manager Eric Duffy and the Village of Woodstock this week claiming they have failed to follow Vermont’s Public Records Act.
Seldon filed the lawsuit because he said he has been blocked three times from getting access to public records pertaining to Duffy placing Woodstock Police Chief Joe Swanson on paid administrative leave in October.
Seldon maintains Duffy has made some defamatory comments about Swanson, the lawsuit said.
Seldon, who is representing himself, is Swanson’s husband.
Seldon has asked for a state judge to compel Duffy and the village to produce all materials requested and to order the defendants to refrain from continuing to keep secret any written materials that are not attorney-client communications.
Seldon also plans to invoke a new provision under the Vermont records law that mandates parties improperly withholding public records to pay for the legal fees of the requester. Seldon has asked for an immediate court hearing.
Duffy placed Swanson on paid leave because he was considered a witness to a traffic incident involving Seldon and a second driver on High Street on Sunday, Oct. 13. The chief remains on paid leave this week despite the state police saying on Nov. 5 that no criminal charges would be filed.
Seldon maintains in the lawsuit that Duffy had made statements of contempt toward Chief Swanson for personal reasons and not his work performance.
The lawsuit also alleges that before Oct. 13 some village trustees and town selectboard members, including Susan Ford, Jeffrey Kahn and Seton McIlroy “have publicly advocated against Chief Swanson for purely personal reasons having nothing to do with Chief Swanson’s job performance.”
Also prior to the incident on High Street, “representatives of the Village of Woodstock have privately advocated against Chief Swanson for purely personal reasons having nothing to do” with the job performance of Swanson, Seldon wrote in his lawsuit.
Duffy declined to comment to the Vermont Standard concerning the claims in the lawsuit.
Seldon said he filed his first Vermont Public Records request with Duffy on Nov. 16. The request sought “any and all public records” made, written or received about Swanson between Oct. 13 and when the defendants eventually respond to the records request.
Seldon also asked for records made, written or received by any employee of the village or town about Swanson during the same time period.
Duffy responded Nov. 18 through the village attorney “with boilerplate attempts to obfuscate obligations under the Vermont Public Records Act,” Seldon wrote.
The response came from the Burlington law firm Stitzel, Page & Fletcher which represents many municipalities.
Seldon said he did not appreciate the response.
“Plaintiff informed Defendant Eric Duffy that his attempts to hide the ball are not legally permissible,” Seldon wrote in his lawsuit.
Attorney Matthew A. Bloomer, who is representing Duffy and the village, “disclaimed any obligation to admit or deny the existence of documents or to produce any documents within the three-day time limit,” Seldon said.
The Vermont Public Records Law actually requires the custodian of records to provide them promptly upon request. The law was amended a few years ago to better define promptly as immediately and without delay. The move was needed because record holders, especially from municipalities, were frequently withholding records and not making them available for inspection as required.
Court records show Bloomer, in his initial response to the request, claimed extra time would be needed to allow town and village employees “to search for and collect the requested records from various facilities, computers and devices.”
Bloomer also added, “Town and Village employees will need to search for, collect and appropriately examine a voluminous amount of separate and distinct records to determine their relevancy.”
Bloomer said he also thought the employees “will need to consult with us on, among other things, whether certain information cannot be disclosed by law and the applicability of exemptions.”
That is when Bloomer said the defendants would invoke an extra 10 days to respond, said Seldon, who rejected the request. Bloomer said the records would be available by the end of the day on Wednesday, Dec. 4.
Bloomer also requested Seldon further refine his request. Seldon did refine the request the same day (Nov. 18), but said the simple records request did not fall under the need for a 10-day filing extension.
Seldon insisted there was no need to search or collect records from field offices and there were not voluminous records to compile. He also said there was no need to consult with another agency.
“Rather this appears to be yet another attempt by Mr. Duffy to roadblock access to information in bad faith,” Seldon wrote in an email to Bloomer on the afternoon of Monday, Nov. 18.
“My request has an exceptionally limited scope and time period. Given how active this matter has been, I find it impossible to believe that Mr. Duffy does not already possess the universe of documents that are responsive to my PRA request…” Seldon wrote.
He ended his email response to Bloomer by telling him to have Duffy produce the public records by Thursday, Nov. 21.
Seldon sent a refined records request later on Nov. 18 to Duffy asking for “all written complaints and allegations that you personally have received regarding Joe Swanson” between Oct. 13 and when the response is filed.
Seldon offered advice to Duffy that he could limit his email searches by using three keywords: “Chief,” “Joe,” and “Swanson.” That would end any “supposed vagueness” that Bloomer had claimed, Seldon wrote.
“This PRA request does not alleviate your obligations to comply with my previous requests. Rather it is my intention to obtain highly important materials without being subjected to prejudicial delays,” Seldon wrote.
He said his request included all emails, text messages and voicemail messages about Swanson.
While Seldon could inspect public records for free, he wrote in his request he was willing to pay for copies. He also offered to stop at the town hall to collect the records if email didn’t work for Duffy and the village.
Seldon sent an email to Bloomer at 5:05 p.m. Sunday, Dec. 1 noting that Woodstock had missed the required deadline. He copied Duffy, the chairs of the village trustees and town selectboard.
The following day, Seldon filed his lawsuit in Vermont Superior Court in Woodstock. Seldon said because of the “unprofessional lack of response” he was getting from his elected officials, he was left with no choice but to move the case to court.
He said he asked Windsor County Sheriff Ryan Palmer to formally serve the lawsuit on Duffy because the manager had failed to respond to a request to waive formal service of the court papers.
A formal written response from the defendants will be due at court before the end of this month.