The town has again denied a public records request sent to it by the state.

“Our board met with town counsel last Tuesday night,” said Select Board Chairman Joshua Terenzini on Wednesday, referring to the Nov. 27 regular Select Board meeting. “Up for discussion we had the public records request.”

He said based on the fact the information being sought is related to a lawsuit the town has filed against two contractors it believes built a rail spur over town-owned water infrastructure, the board opted to deny the request.

Town Attorney Kevin Brown, of the Middlebury firm Langrock Sperry & Wool LLP, said in an email Wednesday the board’s reasons for denying the request on appeal were the same ones it used to deny it the first time, those being that they’re related to ongoing litigation.

The discussion was held in an executive session that lasted a little over half an hour.

Brown didn’t immediately respond to questions about what the next step would be now that the appeal has been denied.

In October, the board voted to file a lawsuit against two Poultney companies, RA Filskov & Sons Inc. and Filskov Brothers Inc. The lawsuit was filed in Vermont Superior Court, Rutland County Civil Division. The town says the companies built a rail spur over a waterline and manhole cover the town owns. This was done on behalf of Vermont Rail System, with which the town claims its attempts to contact have been unsuccessful.

Both companies have denied doing the work with which the town takes issue.

In late October, John Dunleavy, senior assistant attorney general for the Vermont Agency of Transportation, emailed Town Clerk Kirsten Hathaway asking her for “Inspection reports, maintenance records and engineering assessments of the town-owned Pipes, from January 1, 2003, to the present. Also, any records confirming that or questioning whether the Town-owned Pipes actually were installed as shown on the Windcrest Road Sewer Extension plans and the specifications referenced therein.”

He also wanted records on a 1975 agreement between Vermont Railway Inc. and the town that would let the town put water lines on land owned by the state that was being leased to the rail company.

Brown reviewed the request and responded to Dunleavy, denying him the records as they’re part of the lawsuit.

Dunleavy appealed to Terenzini and made several points, among them that the Legislature has said public records requests are to be interpreted liberally in favor of release and that the records he’s seeking predate the incident that gave rise to the legal matter. He further argued that the request wasn’t an attempt to circumvent the court’s information-sharing procedures — given the Agency of Transportation isn’t involved in the lawsuit — and that the agency wants the information because it’s concerned about the safety and status of infrastructure.

Dunleavy said via email Wednesday that he only recently learned of the town’s decision and hadn’t had the chance to discuss it with the Agency of Transportation.


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