Last spring, a case between residents and the Town and a former Select Board member resulted in national headlines. Last week the Telegram ran an update on the case, Barron v. Kolenda, after the Secretary of State’s office issued a letter ordering the Town to respond to a related records request.
I’m sharing that update with further details.
In 2023, the states’ Supreme Judicial Court took up the plaintiff’s appeal of the Superior Court’s decision. It ultimately ruled that Towns can’t enact or enforce comment policies that silence criticism from the public. In the ruling, the original case was remanded back to court for relitigation of the Barron’s charges against former Select Board Member Dan Kolenda.
As the Telegram wrote last week:
The civil case, which has been narrowed in scope since it was originally filed, will determine whether defendant Daniel Kolenda violated Barron’s civil rights and is liable for damages. . .
As part of the discovery process, Barron and the Town of Southborough have been going back and forth on a series of records requests.
On Monday, state Supervisor of Records Manza Arthur agreed with an attorney for Barron, Jeremy Silverfine, that the town had not provided an adequate response to some of the records she requested. Arthur ordered the town to provide the relevant records on a rolling basis.
Initially, the Town had complied with depositions and subpoenas for documents. But in February, the Town pushed back on subpeonas that attorneys argued went too far given that the Town is no longer a direct party in the lawsuit.
The lawsuit stems from Kolenda’s treatment of Louise Barron at a Select Board meeting in December 2018. (Kolenda cutoff Barron’s public comments and responded angrily when she rebuked the bard for repeated incidents of the Town breaking the law by violating Open Meeting Law requirements for timely posting of meeting minutes.)
In preparing for trial, the Barron’s attorney has issued subpoenas for documents that go beyond Kolenda’s actions at the time and the Town’s subsequent handling of the matter.
On February 9th, Town Administrator Mark Purple (the Town’s official “Records Keeper” for the purposes of public records requests) was served a subpoena for more documents. Some of the details they have sought information on relate to a former Town Recreation employee who resigned/was fired for alleged misuse of a Town credit card in 2019 and contracts and acquisition process for the Town’s purchase of IT equipment from the company Fortinet, Kolenda’s current employer.
On February 20th, the Town’s attorney responded with a letter stating that while Purple would comply with some of the document requests, he objected to others for several reasons. The letter claims that subpoena seeks more than producing existing records and instead expects the Town to also “research” information for the plaintiffs. Other objections included:
the grounds it is oppressive, overbroad and unduly burdensome. The Town of Southborough is no longer a party to this case. . .
it seeks documents neither relevant to the subject matter involved in the pending action, nor reasonably calculated to lead to the discovery of admissible evidence, nor proportional to the needs of this case. . .
it seeks the production of documents protected by the attorney-client privilege, that constitute protected attorney work product, and/or that were prepared in anticipation of litigation or for trial by or for the Town of Southborough or by or for the Town’s representatives.
In March and April, the lawyers went back and forth through filed legal motions over the documents. The Town’s legal representative wrote that the Town was being subjected to:
continued annoyance, oppression and undue burden and expense in violation of the Massachusetts Rules of Civil Procedure. . .
Enough is enough.
Barron’s Attorney countered that the requests are for a legitimate legal purpose intended to help prove their case:
The documents sought from the Town are specifically requested in order to demonstrate Kolenda’s bias and motivation for his assault against Mrs. Barron
The Telegram sums up:
Silverfine wrote that the documents related to Fortinet could establish Kolenda’s state of mind when he silenced Barron. She had been a critic of the town’s fiscal management and Kolenda’s “pet projects,” Silverfine wrote. He suggested that Kolenda may have silenced Barron out of fear that she would uncover some violation of the law.
According to his Linked In profile, Kolenda began working at Fortinet Senior Legal Counsel since October 2022 (close to three years after the incident at the Select Board Meeting that prompted the lawsuit and over two years after his term ended on the Select Board).
In addition to filing court motions, the plaintiffs apparently sought information through a public records request and petitioned the Secretary of State’s office this spring. That is the avenue that resulted in a ruling from Arthur in the Secretary of the Commonwealth’s office.
Arthur’s April 22nd letter referred to a March 6th records request and stated that the Town had not yet “provided the responsive records, nor cited an exemption for withholding records”. The letter ordered the Town to within 10 business days provide “an estimated date as to when it intends to complete the search and provide the responsive records” and “To the extent possible. . . provide responsive records on a rolling basis.”
I reached out to Purple to ask if the Town was complying or intended to appeal the decision with an explanation of why it should be exempt from the request. He replied that Special Counsel John Davis is handling the response, but didn’t specify what the response would be. I reached out to his office but have yet to hear back. (I will update this post when I learn what the Town’s official response is.)
Updated (5/3/24 12:25 pm): I forgot to include a link for the back and forth court motions. You can find those here.
