This blog post is one of several that will be published during Sunshine Week, highlighting the need for more government transparency.
The Center for Public Integrity, a 2014 winner of the Pulitzer Prize, evaluated New Hampshire’s Right-to-Know Law and that of all 50 states as part of the broader 2015 State Integrity Investigation. New Hampshire ranked 49th, only beating out Wyoming by 1 point for the worst score.
While the citizen’s right to access government records and meetings is enshrined in Part I Article 8 of the New Hampshire constitution and further defined in the Right-to-Know Law (RSA 91-A), the following shortcomings in the Law are the major reasons for New Hampshire receiving a Failing grade.
Lack of Access to Records
The Governor’s Office is excluded from the agencies subject to the Right-to-Know Law.
Even our elected representatives and senators who need timely and accurate information in order to faithfully execute their official responsibilities sometimes can’t get it. For example, the Governor refused to provide departmental spending reports to the Chair of the Senate Finance committee which limited their ability to provide proper budgetary oversight.
Also, a governmental agency can exempt private sector information from disclosure as the right-to-know law explicitly offers a broad exemption to confidential, commercial, or financial information. According to the report, there is evidence that government entities tend to invoke this clause when faced with requests for information relating to contracting and public service delivery, even though courts have sought to limit the exemption when it comes to information relating to these activities.
Public agencies have been inconsistent in how long they take to furnish records and the costs they impose. In 2015, a court found that the office of the state attorney general — which is responsible for providing guidance to all other government entities in abiding by the Right-to-Know Law, violated the law by not producing records in a timely manner. While agencies are, by law, allowed to charge requestors the “actual cost” of producing a copy, in practice agencies have imposed a wide range of copy fees up to $1 per page.
“Let the people know the facts and the country will be safe” – Abraham Lincoln
There is no government agency responsible for monitoring compliance nor enforcement of the Right-to-Know Law. When a citizen believes that a violation of the Right-to-Know has occurred they are on their own to fight for a resolution. Furthermore, the only option for enforcement is through the court system. Filing a lawsuit in court is intimidating, time consuming, and costly for all parties involved. For the average citizen, this represents a significant barrier to exercising their rights. It’s a long, arduous, and costly struggle which the individual citizen must endure even though, in most cases, all citizens are direct benefactors of one person’s lawsuit.
When a citizen goes to court and wins a case, they often cannot recover all their expenses because the law sets a high bar for the recovery of attorney fees and other costs. Such fees are only awarded when a government agent “knew or should have known” that they violated the law.
To help address these shortcomings in the law, for the last several years Right to Know New Hampshire (RTKNH) has supported several bills for the establishment of a Right to Know (RTK) commission to review cases of denied access to public records or meetings so going to court would be the last resort instead of the only resort.
Establishing a RTK commission would help to level the playing field so that all citizens, regardless of their financial means, can exercise their rights to resolve their alleged RTK violations. This commission would reduce the costs and burden placed on the citizen resulting in greater public access and a streamlined resolution.
Unfortunately, each of these bills failed in the House including this year’s bill HB1413 which would have established a commission to study less costly alternatives than going to court.
RTKNH has worked to address many of the reasons why New Hampshire’s Right-to-Know Law received an F grade. We work with the state legislature to strengthen the RTK law, help citizens exercise their right to know, and provide helpful resources through our blog for anyone interested in this fundamental right.
This year, RTKNH authored 2 bills that passed through the House and are currently awaiting a vote by the Senate. House bills HB1418 requires public bodies to maintain more detailed minutes of nonpublic meetings. House Bill HB1419 requires that meeting minutes contain a record of each member’s vote for all actions. If passed by the Senate, both bills will provide greater government transparency.
“ I am sure the mass of citizens in these United States mean well, and I firmly believe they will always act well whenever they can obtain a right understanding of matters” – George Washington
To celebrate sunshine week, join Right to Know New Hampshire and help us shine more light on the workings of local, county, and state government throughout New Hampshire.
David Saad is president of Right to Know New Hampshire and can be emailed at firstname.lastname@example.org.