The following blog post is one of several that the New England First Amendment Coalition will publish during Sunshine Week, highlighting the need for government transparency and addressing freedom of information concerns throughout the New England states. When posted, these articles can be read here.
By David Saad | Right to Know NH
NOTABLE FOI LEGISLATION
HB 178 Commission to Study Right to Know Law Complaint Procedure (Passed in 2017)
SB 555 Establishing a Right to Know Law Ombudsman and Citizens Commission (Current)
New Hampshire’s Right to Know Law is meant to provide transparency and accountability in our government, but citizens often run into roadblocks attempting to get state and local agencies to live up to the letter and spirit of the law.
Many times, documents are withheld from disclosure, often without any detailed explanation. Public bodies and agencies also tend to err on the side of nondisclosure in matters that involve privacy or confidentiality of others. Citizens frequently feel documents are inappropriately withheld and there’s little recourse outside of expensive and intimidating litigation.
The Center for Public Integrity in 2015 evaluated the freedom of information laws of all 50 states as part of its State Integrity Investigation. In public access to information, New Hampshire earned an F grade and ranked 49 out of all 50 states.
Worse, when it came to the appeals process, the center gave New Hampshire a score of zero. The Right to Know Law, also known as § 91-A, requires all appeals to be made using the judicial system and the there is a high bar for the recovery of attorney fees and other costs.
This all comes as little surprise to right-to-know advocates in the state. In New Hampshire, the burden to resolve public record and open meeting disputes is nearly entirely on the citizen. Fortunately, there may be help on its way.
Last year, House Bill 178 established a 13-member commission to study ways to resolve public record and open meeting complaints as well as to reduce the cost of appeals for citizens, courts, municipalities and state agencies. After two months of meetings, the commission — whose members include a variety of different stakeholders, myself one of them — recommended establishing an independent ombudsman to be overseen by a new Citizens’ Right-to-Know Appeals Commission.
Senate Bill 555, currently being considered, will implement this recommendation. The bill needs our support.
An ombudsman will create a new and faster path to resolve Right to Know Law disputes. Citizens will have the option to either petition the superior court or file a signed, written complaint with a new ombudsman’s office. The ombudsman will process the complaint, acquire and review documents, and conduct interviews if necessary. He or she will determine if there has been a violation of § 91-A and issue a ruling within 30 days.
The ombudsman can order a remedy for a violation just as a court now can. Remedies would include providing the public access to meetings and compelling the disclosure of records. Either party may appeal the ombudsman’s ruling to superior court. Rulings not appealed may be registered in court as judgements to be enforced through the judiciary.
If established, an ombudsman will help to:
• Achieve a resolution, in many cases, without involving the courts. This will result in a reduction of court-related costs.
• Further level the playing field so all citizens can pursue their rights under the Right to Know Law without hiring an attorney.
• Reduce costs incurred by citizens, resulting in more opportunity to resolve Right to Know Law grievances.
• Streamline the resolution process greatly and reduce the time to achieve an outcome.
While hiring an ombudsman and establishing a new office is an added expense, there will be considerable savings to offset the costs to taxpayers. By avoiding litigation, municipalities and state agencies will often be spared court costs and attorney fees. In the recently settled case Porter v. Town of Sandwich, for example, the town paid more than $200,000 in attorney fees to the plaintiff, in addition to paying the legal fees it incurred itself.
In addition, the Citizens’ Right-to-Know Appeals Commission will:
• Provide necessary checks and balances and ensure sufficient oversight of the ombudsman.
• Improve right-to-know educational materials to increase compliance.
• Report annually to the legislature with a summary of complaints filed and recommendations for future changes to the law.
To maintain trust between the people and their government, the establishment of an ombudsman and citizen commission will be indispensable. They will help protect the right of citizens to access government records and to receive advance notice of open meetings, among many other rights afforded by § 91-A.
Senate Bill 555 has bipartisan support, but representatives need to hear from you. Please contact your New Hampshire legislators and ask them to make resolving right-to-know disputes faster, cheaper and easier for all citizens.
David Saad is president of Right to Know NH.
Above photo taken by Flickr user Patrick Gensel and used with permission under a CC 2.0 license.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
Major Supporters of NEFAC include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe, WBUR and Boston University.