RTKNH receives First Amendment Award

We couldn’t be more proud.  On Thursday night, October 5, 2017, the Nackey S. Loeb School of Communications awarded Right to Know NH its First Amendment Award. The award is given annually by the school to those who have “gone above and beyond to uphold” First Amendment Freedoms.

1sr amendment award group

RTKNH, including founding members and officers Harriet Cady, David Saad and David Taylor were honored at a gala at the Palace Theatre in Manchester for its work in advancing the public’s right to know in New Hampshire.

A 5 minute video about RTKNH was shown at the award ceremony followed by a speech by David Saad,  RTKNH president.

The keynote speaker was Garrison Keillor, creator and star of “A Prairie Home Companion” radio show, who spoke of everyday threats to our First Amendment rights, not least of which is our own indifference and reluctance to act.

Since it began in 2013, Right to Know NH has been devoted to strengthening the Right to Know law in New Hampshire.  Through legislative action, education outreach and mentoring citizens in obtaining public information, the grass roots organization has grown to become a notable advocate for open government in the state.

We are honored to be recognized by the Nackey S. Loeb School and are delighted that attorney and First Amendment specialist, Greg Sullivan, was also recognized with the school’s Pen and Quill award.

The Nackey  S. Loeb School of Communications’ mission is to “promote understanding and appreciation of the First Amendment and to foster interest, integrity and excellence in journalism and communication.”

Articles by the Union Leader and Concord Monitor provide more information.

 

Law Enforcement Transparency a Prerequisite to Accountability

Below is the testimony RTKNH submitted to the Commission on Law Enforcement Accountability, Community and Transparency (LEACT).

Dear LEACT Commission,

RTKNH is a nonprofit, nonpartisan citizen coalition working to improve access to New Hampshire state, county, and local government including all law enforcement agencies. We advocate to strengthen New Hampshire state laws, particularly the Right-to-Know law known as RSA 91-A, as well as Right-to-Know governmental policies. 

Part I, Article 8 of the New Hampshire Constitution and the Right-to-Know law are the fundamental prerequisites for a self-governing people. As the legislature made clear in the preamble to the Right-to-Know law: “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.” The Right-to-Know Law helps further our State Constitutional requirement that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”

As highlighted by a recent video by the New England First Amendment Coalition, the following issues exist in regards to achieving proper law enforcement accountability and transparency:

  • Lack of availability of law enforcement records which are public records per RSA 91-A
  • Excessive charges for copies of law enforcement records

 Availability of Records

The public has a right to records which helps them understand what law enforcement is doing on our behalf.  These records inform the citizens so they can hold public employees accountable for their actions.   For example, all video and audio recordings made by a law enforcement officer using a body-worn camera, which are not considered an invasion of privacy, should be available to the public.  Currently, most recordings are exempt from public disclosure.

Until recently, personnel records were categorically exempt from public disclosure.  The following recent NH Supreme Court Rulings now require a determination of whether certain personnel records will continue to be exempt based on a balancing test between privacy interests and a public’s interest in disclosure.

When it comes to the behavior of the law enforcement officers, in their official capacity, they should have no privacy or confidentiality interest in nondisclosure. Law enforcement officers perform vital functions on behalf of the public, and their misconduct creates the potential for considerable social harm.  Officers are trusted with one of the most basic and necessary functions of civilized society, securing and preserving public safety.

Disclosure of misconduct is in the public interest.  Yet, today, the names of law enforcement officers (150 in 2015 and 260 in 2019) who received due process and remain on the Exculpatory Evidence Schedule (EES) are shielded from the public’s right to know. 

All citizens have the right to know which officers have engaged in misconduct, what they did, and what is being done to prevent it from happening again. 

Law enforcement officers, by the nature of their duties and power, must be held to a higher standard.  That higher standard must include transparency regarding their misconduct.  Their conduct must be open to public scrutiny to allow for adequate checks and balances.  Transparency ensures bad behavior cannot hide behind a veil of secrecy.  Secrecy erodes the public’s trust and nurtures an environment which allows greater harm to those which law enforcement officers swear to protect.

Cost of Records

RSA 91-A:4(IV) allows law enforcement agencies to charge the “actual cost’ of providing copies of public records.  The City of Concord charges 25 cents for each page requested, which approximates a true actual cost.  However, many other law enforcement agencies charge exorbitant minimum rates for records, which greatly exceeds the ‘actual cost’ allowed by law.  For example:

Charging citizens such high fees to access records allows public agencies to construct toll booths along the information highway on route toward the truth.  These high fees are financial deterrents as citizens run out of money long before they can discover the veracity of law enforcement’s decisions and actions. 

In summary, as James Madison explained centuries ago: “The right of freely examining public characters and measures, and of free communication among the people, is the only effectual guardian of every other right.”

Only with full transparency can citizens freely examine the character and measures of law enforcement officers.  And transparency is a prerequisite for full accountability to the people

Please include transparency requirements in all of your recommendations.

[End of Testimony]

All citizens are encouraged to submit testimony by sending an email to LEACT@doj.nh.gov

NEFAC Webinar on How the NH Supreme Court Reshaped the Right-to-Know Law

  The New England First Amendment Coalition, Nackey S. Loeb School of Communications and the New Hampshire Press Association will present a free webinar June 26th 12-1 pm about recent decisions expanding the public’s right to know about government.   Attorneys Richard Gagliuso and Gregory V. Sullivan will discuss two positive decisions issued by the Supreme Court of New Hampshire earlier this month that will make it easier for the public to oversee its law enforcement agencies and hold police officers accountable for their actions.   Gagliuso of Bernstein Shur and Sullivan of Malloy & Sullivan were among the attorneys arguing for the public’s right to know in the cases.   In each case, the high court overruled a previous decision that categorically exempted from the state’s Right-to-Know Law any records related to “internal personnel practices.” With these rulings, that category of records is now more limited. A balancing test — rather than the more strict per se exemption — is now also required to determine if those records should be publicly released.   At stake in the cases was the public’s right to access certain law enforcement records. Seacoast Newspapers v. City of Portsmouth concerned the release of a 2018 arbitration decision about a fired police officer. In Union Leader Corp. v. Town of Salem, the court addressed a public records request for an audit report that included details about internal affairs complaint investigations.    Both the police union in Portsmouth and the Salem Police Department had cited a 1993 case Union Leader Corp. v. Fenniman to try to argue that the documents were exempt from the Right-to-Know Law, an earlier decision the court now says is flawed.

Registration and additional details for this free webinar are found here.

RTKNH meeting Saturday 6/20 @ 9 a.m

Right to Know NH will meet on Saturday, June 20, 2020 @ 9 AM by conference call. We will discuss the status of Right to Know (RSA 91-A) bills which have been submitted for the current 2020 legislative session, the impact of the Corona Virus State of Emergency declared by the Governor, and begin planning for bills for the next year.  The public is welcome to join us. If you’d like to join us, click on “Send us a message” under CONTACT US to the right and ask for the phone number to call.

Pandemic Muzzles the Public in Nashua

By Laurie Ortalano, a Nashua resident and member of Right to Know NH.

Everyone knows that the COVID-19 pandemic has changed our lives, at least temporarily. This includes how we, the public, participate in local politics. With the pandemic-induced changes to how local politics works, I am a little concerned about the health of public participation during these unusual times. Let’s take a look at why I believe our voices are not being heard as well now.

Ordinarily, we can all participate in any public meeting by simply attending. In most cases, signing in and standing to address a board during community input is standard practice. And in our open, democratic society, our words become part of the public record.

Since the closing of Nashua City Hall to the public two months ago, how does public input work now? The Nashua Board of Aldermen voted to only accept, not read, emails and placed them on file for all remote meetings. The Board’s pandemic position to acknowledge the email is a far cry from physical participation in a public meeting where press coverage and media viewership brings light to citizen comments.

The Board has adopted an even more interesting practice. A citizen’s email communication for public input must be receive one week prior to the Board meeting, otherwise it is tabled until the next meeting, two weeks down the road. So, the public can never have a voice on items to be acted upon in a meeting because their comments are always submitted too late. At a minimum, the Board should be making these emails available in a much timelier manner.

The Boards new rules on public comment is a strong indication of how muted our voices have become in Nashua’s city government. Ordinarily, the Board would provide up to 30 minutes for public comment; they have been running freely without any “interference” from the public.

On the other hand, board committees or city managers have the ability to submit reports to the board and have them immediately recognized on record. Nashua’s Board of Aldermen President Lori Wilshire simply suspends the rule, if there is no objection of the Board, and accepts into record the correspondence submitted. The Board is using The Mason Rules for Legislative Procedure to muzzle the public, rather than to keep order so all voices can be heard.

Alderman Ernest Jette and Alderwoman Elizabeth Lu have questioned why public emails are not being recognized in meetings. They are silenced by other Aldermen who are trying to train them in “the Nashua Way”. Push the public off and stifle them.

From my vantage point, Nashua’s politicians are using the dictum “never let a good crisis go to waste” to exploit and advance their own political agendas.   More so than ever, it is an important time for the public to keep a watchful eye.

RTKNH meeting Saturday 5/16 @ 9 a.m

Right to Know NH will meet on Saturday, May 16, 2020 @ 9 AM by conference call. We will discuss the status of Right to Know (RSA 91-A) bills which have been submitted for the current 2020 legislative session as well as the impact of the Corona Virus State of Emergency declared by the Governor.  This is also our annual meeting and we will vote for officers.  The public is welcome to join us. If you’d like to join us, click on “Send us a message” under CONTACT US to the right and ask for the phone number to call.

NEFAC, Loeb School Offering Free Classes About First Amendment, Open Government

The New England First Amendment Coalition and the Nackey S. Loeb School of Communications are offering two free online classes about the First Amendment and the public’s right to know about government during a time of crisis.

NEFAC’s partnership with the Loeb School to offer free online classes is the latest example of how the coalition is helping to protect the press and educate the public during the COVID-19 pandemic.

To participate in either or both classes described below, register for them and you will receive log-in information.

Freedom of Information Laws and Your Right to Know

April 23 | 7 p.m. – 8:30 p.m

Presented by Justin Silverman, NEFAC Executive Director

The motto “assume your government will be open, but be prepared to fight for it,” seems even more important at a time when we are depending on the government for information which will keep citizens healthy. After this class students will have a better understanding of why government transparency is needed in our democracy despite its tension with personal privacy and security interests.

Registration and more information here.

The First Amendment in Times of Crisis

April 29 | 1 p.m. – 2:30 p.m.

Presented by Gregory V. Sullivan, NEFAC Board Member

This class will serve as a First Amendment primer, highlighting examples from other times of crisis and focusing on defamation and freedom of speech. Students will learn about the First Amendment to the U.S. Constitution and the five freedoms it protects. During class, students will view examples from challenging times in U.S. history when constitutional rights were tested and landmark legal cases reinforced First Amendment protections.

Registration and more information here.

RTKNH meeting Saturday 4/18 @ 9 a.m

Right to Know NH will meet on Saturday, April 18, 2020 @ 9 AM by conference call. We will discuss the status of Right to Know (RSA 91-A) bills which have been submitted for the current 2020 legislative session as well as the impact of the Corona Virus State of Emergency declared by the Governor. The public is welcome to join us. If you’d like to join us, click on “Send us a message” under CONTACT US to the right and ask for the phone number to call.

NH Governor issues executive order to expand use of meetings by electronic means

Emergency Order #12 pursuant to Executive Order 2020-04, the following RSA 91-A meeting requirements are waived, effective immediately,  for the duration of the State of Emergency:

  • RSA 91-A:2,III(b) that a quorum of a public body be physically present unless immediate action is imperative
  • RSA 91-A:2,III(c) that each part of a meeting of the public body be audible or otherwise discernible to the public “at the location specified in the meeting notice as the location of the meeting, so long as the public body:
    • Provides public access to the meeting by telephone, with additional access possibilities by video or other electronic means;
    • Provides public notice of the necessary for accessing the meeting;
    • Provides a mechanism for the public to alert the public body during the meeting if there are problems with access; and
    • Adjourns the meeting if the public is unable to access the meeting.

The Attorney General has published guidance on how to hold emergency meetings.

View all Emergency Orders here

School Boards Acting Badly with Impunity

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THIS BLOG POST IS ONE OF SEVERAL GUEST EDITORIALS THAT WILL BE PUBLISHED DURING SUNSHINE WEEK (March 15 – 21), HIGHLIGHTING THE NEED FOR MORE GOVERNMENT TRANSPARENCY.  

By Donna Green

George Hoyt, a Milford resident, submitted a citizen’s petition to the Milford School Board calling for the resignation of the superintendent and the school board chairman. The petition was submitted on January 14 and according to reporting, the petition was properly completed. The Milford School Board did not place Hoyt’s petition on the school district ballot, nor did they tell Hoyt or his petitioners that they would not be placing it on the ballot. Hoyt learned this eight days after after he submitted his petition when he was notified by the Milford Town Moderator.

According to Hoyt, the Milford School Board meet in a three-hour nonpublic session where they decided not to place his petition on their ballot. Hoyt has received the minutes from this meeting which do not provide the board’s reasoning for this decision. Hoyt has made a Right to Know request for the district’s written legal opinion which he believes was discussed at this nonpublic session. He has also filed a complaint for violation of RSA 39:3 with the New Hampshire Department of Justice.

Right to Know New Hampshire has long fought for more robust nonpublic minutes and has supported the call for verbatim transcripts of secret meetings.

For the local reporting of this story, see

https://www.cabinet.com/news/cabinet-news/2020/01/30/milford-privately-nixes-petition/

Donna Green is a member of RTKNH. She can be emailed at righttoknownh@gmail.com

 

 

 

 

 

 

 

 

 

Guest Opinion: Keeping the Light on, During Sunshine Week, and always

To help celebrate Sunshine Week, Right to Know NH is publishing this quest opinion.

By Justin Silverman and Laura Simoes

When Dr. Ed Kois left his private practice after 30 years for a position at the Manchester VA Medical Center, he expected most of his new patients’ injuries to have occurred on the battlefield. Instead, he found many of them to have been caused by poor medical care.

Frustrated by the lack of improvements hospital administrators were willing to make, Dr. Kois and several colleagues in 2016 went public. They used whistleblower protections and the power of the free press to tell their story and shine a light on the deplorable conditions at the Manchester hospital. Just hours after The Boston Globe reported a story based on information provided by Dr. Kois, the federal government removed two top officials at the hospital and ordered a full review of the facility.

Dr. Kois died in 2019 and was posthumously honored by the Nackey S. Loeb School of Communications. His insistence on exposing government incompetence should be remembered as we celebrate Sunshine Week—a national celebration of transparency beginning March 15. Whether through whistleblowers like Kois or the use of state and federal freedom of information laws, knowing about our government is crucial to maintaining trust in public institutions.

This trust is essential to our democracy and increasingly, given the current coronavirus (COVID-19) pandemic, our safety. When government authorities provide guidance on how slow the spread of the virus, for example, we need to know the facts and data supporting their remarks. When difficult decisions are made regarding medical care or the curtailment of civil liberties, we ultimately need to know how these decisions were made and why. Only through this transparency can we understand for ourselves if government is acting in our best interest.

The need for trust in our public institutions is why we have whistleblower protections and the New Hampshire Right to Know Law. This law allows citizens to request certain records that can show us how our tax dollars are being spent and why public officials make the decisions they do. The law provides us, for example, payroll records of public employees, police logs, government expense reports, school construction plans and restaurant inspections. The law provides insight into how our government is working so we can know if and how it can be improved.

While Dr. Kois relied on his experience at the VA hospital to inform the community, other citizen watchdogs are using public records to expose questionable public policies. Nashua resident Laurie Ortolano’s use of property records and Right to Know Law requests recently led to an overhaul of the City’s assessing office. Hampton resident David Lang and the Professional Fire Fighters of New Hampshire used public records several years ago to show that public employee health insurance premiums were comingled with other funds. Local municipalities received millions of dollars in refunds as a result.

We are all capable of sharing these kinds of stories, but only if we take steps to strengthen our state’s Right to Know Law. We can do so by:

– Supporting efforts to establish a Right to Know Law ombudsman. Requesters have few remedies when denied public records. An ombudsman would resolve disputes and provide citizens recourse outside an often costly and time-consuming legal process.

– Resisting additional fees. A bill was recently proposed in the state legislature that would have allowed agencies to charge citizens for records that exceed a certain time to produce. Such fees can be prohibitive to many citizens and they undermine the spirit of public record laws. This information, after all, is already owned by the public.

– Demanding transparency. As a New Hampshire resident you are entitled to public records. While the majority of public employees act in good faith, there are some who will abuse exemptions in the Right to Know Law to deny you the right to learn about government. Don’t accept “no” for an answer. Dig in and fight for the information you’re entitled to under the law.

Lastly, consider this Sunshine Week as a reminder of our year-round obligation to government transparency. The burden is on all of us — not just those like Dr. Kois — to fight secrecy each and every day. Trust in public institutions relies on our ability to shine sunlight wherever we find shadows.

Justin Silverman is executive director of the New England First Amendment Coalition.

Laura Simoes is executive director of the Nackey S. Loeb School of Communications