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NH Supreme Court deadlocks on whether governor’s office must turn over emails

photo of NH supreme court
Todd Bookman

After more than a year of deliberations, the New Hampshire Supreme Court has deadlocked in a case over what records the governor’s office needs to make public. The two-to-two ruling, with a recusal from Chief Justice Gordon MacDonald, means a lower court’s decision siding with Gov. Chris Sununu’s office will stay in place.

At issue are a series of emails between Sununu staffers, on private email accounts, and employees of the National Republican Redistricting Trust, a group led by former Wisconsin Gov. Scott Walker.

The emails were exchanged before and after Sununu vetoed a 2019 bill to create an independent redistricting panel.

Louise Spencer, with the progressive group Kent Street Coalition, sought the emails under New Hampshire’s open records law, but a Superior Court judge ruled that the emails sent before the veto were subject to executive privilege and the emails sent after the veto were not government records.

The state’s highest court heard oral arguments on the matter in September 2021. About 18 months later, the court issued a two-page order this week in which the justices announced they had deadlocked, without disclosing the individual votes. The order noted the decision doesn’t necessarily set a precedent, meaning the issue could come back before the court in the future.

New Hampshire governors from both parties have long argued that right-to-know law provisions apply narrowly when it comes to their communications.

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