Somerville’s tax collector has taken fellow town officials to court over what he claims was their failure to fulfill his request for public records regarding long-term planning for the town’s broadband network.
Jon Amirault alleged in his complaint, filed June 5 in Lincoln County Superior Court, that the former and current chair of the Somerville Municipal Broadband Board did not comply with Maine’s Freedom of Access Act when they responded to his request in May.
And Amirault’s lawsuit does more than just allege that Sharon Reishus, the former broadband board chair, and Douglas Shartzer, the current chair and former secretary, did not produce all records responsive to the request. It accuses the two of purposely concealing the records — or being so incompetent in their roles that they never did the kind of work that Amirault expected they would have done.
“At issue here is not just access to documents, but the credibility of a governance process that oversaw a multimillion-dollar infrastructure buildout,” his complaint concludes. “The Plaintiff does not merely question whether responsive records exist — he asserts that they **must**, based on the scale, nature, and funding structure of the project. Their absence defies not only legal expectations, but the most basic standards of the project.”
In their answer filed July 2, Shartzer and Reishus denied the allegations through their attorney, Trevor R. Brice of Lewiston law firm Skelton Taintor & Abbott.
Brice is Somerville’s town attorney, according to Shartzer, and he is representing Shartzer and Reishus even though Amirault is also a town official.
Shartzer had to convince Brice to represent him and Reishus, in part by threatening the select board to sue the town if it failed to provide its officials with legal representation, he said in a telephone interview Wednesday.
Shartzer and Reishus said in their answer they “complied with every aspect” of Amirault’s request under the requirements of the Freedom of Access Act, commonly known as FOAA. They also asked that Amirault’s complaint be dismissed with prejudice, meaning it would not be able to be filed again.
“I basically just gave him everything,” Shartzer said. “I gave him open transparency. I said, ‘Here’s every file that we’ve ever done.’ Meeting minutes — everything. So, if it’s not in there, it doesn’t exist.”
The lawsuit was first reported July 24 by The Lincoln County News.
The lawsuit, in which Amirault is representing himself, stems from a May 3 FOAA request that Amirault sent to Somerville’s town clerk.
Amirault, a Somerville resident who also lists his official capacity as tax collector in his court filings, asked for records “related to the long-term maintenance planning, financial forecasting, infrastructure depreciation, and cost modeling beyond year five of the municipal fiber network” from the Somerville Municipal Broadband Board, according to the complaint.
The town has been building a municipally owned fiber network, a $1.6 million project fully paid for with state and federal grants from the National Telecommunications and Information Administration and Maine Connectivity Authority, the town’s website says.
The project was expected to be completed this spring; Reishus said in a telephone call this week that the final steps to transfer ownership to the town were expected to happen soon.
Reishus, who was board chair until June, initially told Amirault that some of the documents he requested did not exist as such planning had not been done yet, the complaint says. Reishus also told Amirault that ultimately the town’s select board was the custodian of the requested records, although Shartzer was able to provide them, according to an email attached to the complaint.
After some back and forth, Shartzer sent Amirault a digital file containing various records related to the project, according to the complaint and attached exhibits. Amirault wrote in his complaint the digital folder was “massive (and) disorganized.”
“If you can’t find what you are looking for in these documents, it doesn’t exist,” Shartzer wrote in an email to Amirault, which is contained in the court file.
Both Shartzer and Reishus agreed that it seems the motivation of the lawsuit is about more than simply access to public records.
“We tried to be cordial with somebody who’s a town resident and taxpayer,” Shartzer said this week. “We gave him everything — and he was pissed about it.”
He also said he found the complaint “ridiculous” because presumably Amirault would have access to the records already through his position at the town office.
“We’re a small town,” Reishus said in a separate interview. “This guy had questions. He could just ask us.”
Amirault, who said he has been tax collector since January and has been emergency management director for two years, largely declined to discuss his case, citing the ongoing litigation.
Amirault did say his complaint was not filed in his official capacity and did not name the town of Somerville as defendant.
“These requests and court filings were done on my own time and at my own expense and by my own right and of my own free will,” he wrote in an email Thursday.
Amirault is asking the court to declare that Shartzer and Reishus are in violation of the FOAA; order production of a certified search report; compel production of any and all responsive records; issue a finding that the records’ absence is inconsistent with the scale and nature of the project, if they do not exist; enjoin further obstruction or misrepresentation of FOAA duties by Shartzer and Reishus; award the reimbursement of Amirault’s legal fees; and issue an affirmation that public officials are bound to the laws around public records and funds.
It appears, however, that much of what Amirault is asking is more than what a judge can do in an appeal like this.
The FOAA gives broad access for people to access government records that do not fall under the hundreds of exemptions scattered throughout state statutes. But an agency or official is not required to create a record that does not exist.
The law allows a government agency’s denial or refusal to inspect or copy a public record to be appealed to the Superior Court.
Even then, the relief outlined in statute is generally limited: “If a court, after a review, with taking of testimony and other evidence as determined necessary, determines such refusal, denial or failure was not for just and proper cause, the court shall enter an order for disclosure.”
A court may also award legal fees to a prevailing plaintiff, but only if it finds that the government agency denied the request in bad faith.
And that kind of ruling is extremely rare. It is believed that the first time a judge awarded legal fees in a FOAA request appeal was in 2022, in an appeal of the Maine County Commissioners Association Risk Pool’s withholding of records about a settlement payment in an excessive force lawsuit brought by a Kennebec County jail inmate. The Maine Supreme Judicial Court later upheld the ruling.
Prosecutors may also seek civil penalties if a government officer or employee “willfully violates” the public records law.
A status conference in Amirault’s case was held at the Lincoln County courthouse in Wiscasset last week, court records show.
Shartzer said he and Reishus have made an offer to settle the lawsuit, which involves producing three files for Amirault that he said were already contained in the large folder he provided in response to the request. He said, as of Wednesday, he had not yet heard back from Amirault.
Reishus said she expects Amirault to withdraw the complaint or a judge to dismiss it.
“What we think is not fair,” Shartzer said, “is that the taxpayers are footing the bill to defend us against (a) town employee that has access to the records.”
