Let the Sun Shine on New Hampshire Government

The following blog post is one of seven 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 Gregory V. Sullivan

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This is Sunshine Week. Organizations dedicated to promoting open and transparent government will be sponsoring educational programs and initiatives designed to educate the public regarding the importance of easy public access to the workings of our government.

One such organization, OpentheGovernment.org, a partner of the New England First Amendment Coalition, states in its mission statement:

“We believe that transparency is essential to ensuring integrity and accountability in the operation of our governing institutions. We believe that openness helps to ensure that policies affecting our health, safety, security and freedoms place the public good and well-being above the influence of special interests. Making government as open as possible also fosters confidence in representative government and encourages public participation in civic affairs, an essential feature of our form of government. For all these reasons, OpenTheGovernment.org seeks to advance the public’s right to know and to reduce unnecessary secrecy in government.”

In a 1913 Harper’s Weekly article, entitled What Publicity Can Do, U.S. Supreme Court Justice Louis Brandeis famously stated that “sunlight is said to be the best of disinfectants.” He later wrote, that “if the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.’’

In New Hampshire, legislators are debating and considering numerous  bills designed to amend our Right to Know Law, RSA 91-A. The preamble to that law holds that “openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” Some of the proposed legislation, including a bill creating a “Right to Know Grievance Commission,” and one making the governor subject to the Right to Know statute, deserve support from those respecting the mandate of Part I Article 8 of the New Hampshire Constitution:

“All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”

House Bill No. 646 was tabled by a vote in the House last week. If passed, it would have a negative effect on the public’s right to know what the government is up to. It proposes allowing public agencies to charge fees to those requesting copies of public records in addition to the actual cost of photocopying the records. Chapter 91-A already allows public bodies and agencies to charge a reasonable fee for photocopying requested records. This bill, if passed, would spread shadows and clouds over records that historically have been subject to the light of public scrutiny, a light essential to an informed citizenry. Rep. Michael Sylvia (R-Belmont), who spearheaded opposition to the bill, wrote in the minority report:

“While compliance with 91-A carries a cost to public bodies, these costs serve as an incentive to streamline records management to control costs. In the balance, we have a constitutional duty to maintain transparency in government; this bill would be a step in the wrong direction.”

Government officials should be seeking ways, through the use of new technologies, such as computers and scanners, to make public records more readily accessible, and not making it more difficult and expensive to get them.

One proposed bill would allow public bodies to establish a quorum if members are present “by a combination of physical presence and by means of telephone or electronic communication.” How the public could interact with a public official “present” through electronic communication needs to be further explored and clarified. Will members of the public also be attending and participating electronically?

Another proposal would allow public bodies to go into executive session to “meet” with legal counsel, when discussing written communications from counsel, without counsel being actually present. That amendment would provide officials with a needless opportunity to avoid the dictates, spirit and intent of the open meeting provisions of the law. Having counsel actually present during “meetings” with counsel helps insure that the discussions do not extend beyond the parameters permitted in such non-public meetings.

Our nation’s founding  fathers, and the drafters of New Hampshire’s constitution, all recognized the sacrosanct and paramount importance of freedom of speech and freedom of the press. Part I Article 22 of the New Hampshire Constitution reads:

“Free speech and liberty of the press are essential to the security of freedom … They ought therefore to be inviolably preserved.”

It has been written, however, that the values of free speech and press are rendered less meaningful without a corresponding and supporting right to know what the government is up to. While New Hampshire has made great strides in insuring that its citizens are able to know what the government is up to, we all must remain committed to preserving that right and in expanding, not diminishing, the light of public scrutiny. As Justice William O. Douglas so eloquently stated many years ago:

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be most aware of change in the air, however slight, lest we become unwitting victims of the darkness.”

Gregory is a member of NEFAC’s Board of Directors and an instructor at the Nackey S. Loeb School of Communications.

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