HB365 Testimony
Below is testimony given, by several RTKNH members, to the House Judiciary Committee in support of HB365.
Deborah Sumner of Jaffrey NH
I ask you to vote in support of HB 365.
I am a former reporter, who, 30 years later, still has a copy of the Keene Sentinel guidelines on right-to-know. The law’s purpose, as the NH Supreme Court has said, aims to “provide the utmost information to the public about what its government is up to.”
And, access to that information is tied to fundamental freedom of speech and press rights as given us by Part I, Art. 22 of our NH Constitution and the First Amendment in the US Constitution.
“Accessibility of information assumes and encourages a community of people free to think as it chooses and act according to its collective will.” Petition of Keene Sentinel,136 N.H. 123 (1992).
My issue was ballots as public records. I followed similar cases in Colorado and Vermont where courts agreed that ballots (and ballot images) were public records, accessible to the public after election results were certified.
NH law had specifically exempted ballots from RSA 91-A in 2003, at the request of the Secretary of State. But in extensively researching NH legal precedent and how other states had dealt with the same question, I believed the court would agree that the public’s interest trumped the state’s stated interest in exempting them.
With the state’s increasing reliance on electronic voting results that are not overseen by election officials or the public (as they are in the dwindling number of towns that publicly hand count all ballots), I was confident that the records I sought were essential to give the public assurance that government was protecting our fundamental right to vote and have that vote counted and reported accurately. Under the circumstances, there was no other way to hold our local or state election officials accountable and make sure they were fulfilling their duty to us.
I tried to get members of the press to file the legal action and tried to find pro bono legal help. Then, because the pro se plaintiff in Vermont prevailed in his state Supreme Court, I took a deep breath and plunged in to argue my case against the NH Attorney General. The state, of course, had access to public funds and resources.
The Vermont Supreme Court said, “In adopting the [Public Records Act], the Legislature reaffirmed the fundamental principle of open government that public officials `are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.””
Surely NH courts would say the same.
The public and I lost our case. I learned a lot. Would there have been a different outcome if I’d had a lawyer? Would the state have been willing to settle the case before it went to a judge? I’ll never know.
IF an attorney who believed in the merits of my case (there was at least one) and I had had the assurance attorney’s fees would be reimbursed if we won, would the attorney have been willing to take the risk and represent the public’s interest? Would I be done with this issue and ready to move on to my next challenge?
Because this issue involves several fundamental rights protected by both state and federal constitutions, I can take it to federal court, but I wouldn’t do that without an attorney. My understanding is that federal lawsuits do award attorney fees to litigants who had had no recourse except the legal remedy in order to protect their fundamental civil rights. My town (as ballot custodian unless ballots are sent to Concord for a recount) would have to reimburse those fees, even though the state exempted ballots from public records law. That doesn’t seem fair to me, or my town’s taxpayers!!!!! I continue to look for a better way.
RSA-91-8 protects against “frivolous” lawsuits. Complaints under RSA 91-A are filed to ensure public officials follow the public meeting and public records requirements and are indeed fulfilling their legal duties to the public.
I don’t know of anyone who has filed a public records/open meeting case in court who has liked doing it, who didn’t feel it was necessary as a last resort because of stone walling public officials. Those who have nothing to hide and do the public’s business honestly, openly and ethically have no reason to fear lawsuits. Those who have something to hide, do. Making the governmental entity responsible for legal fees and costs if the plaintiff prevails provides an incentive for public officials to follow the laws and to try and settle legitimate differences out of court (preferred).
Reimbursing attorney fees for successful Right-to-Know cases helps level a very badly tilted playing field in Right-to-Know cases and hopefully serves as a deterrent for certain public officials who didn’t learn from their first experience (of spending public money to reimburse the plaintiff). Next time, we hope, they will choose to follow the law.
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David Taylor of Durham NH
Thank you very much for allowing me to testify on bill HB365 today. I support this bill. I am David Taylor of Durham and I served for 12 years on the Oyster River School Board.
There is no money in Right-to-Know cases. When approached, most lawyers require about $5,000 up front to take a case. This is too much for most people. So, people either give up, or try to handle the complexities of going to court by themselves.
The primary reason lawyers are reluctant to take Right-to-Know cases, is the chance of recovering attorney’s fees from violators is low. The chance is low because of the “know or should have known” provision. Not only does this require the plaintiff to prove they knew they were violating the law, but it usually requires a New Hampshire Supreme Court precedent on the specific statutory language. Given the even greater costs of an appeal, this makes the chance even smaller.
Attorney Rick Gagliuso of the New England First Amendment Coalition said at the New Hampshire Sunshine Week panel last year, that this is the greatest impediment to the Right to Know in our state. In the discussion that followed even Speaker Jasper agreed this provision should be removed.
The “know or should have known” condition was specifically cited in the Center for Public Integrity failing grade report given to our state. They said “the bar for recovering attorney fees and other costs is dauntingly high” because of this language.
Please vote that HB365 ought to pass.
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David Saad of Rumney NH
My name is David Saad. I live in Rumney NH and I currently serve on the Rumney planning board. I am also the President of Right-to-Know New Hampshire.
I ask you to support HB 365 which makes changes to the right-to-know law section RSA 91-A:8.
Currently many citizens are forced to file lawsuits pro se as the bar to recouping attorney fees is too high. Even when a violation is proven, full attorney fees are not awarded because the defendant can claim some level of ignorance of the law in order to avoid paying them. For the average citizen, this represents a significant barrier to retaining legal representation since their chances of collecting all attorney fees are greatly reduced.
“Ignorance of the law is no excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.” – Thomas Jefferson
The Legislature works judiciously to pass laws which supports the public’s right to know. However, passing laws alone is not enough. The laws must be understood, and followed by public bodies, agencies, government officials, employees, and the general public. Also, the penalties for failure to follow the law must provide adequate deterrents to increase compliance.
I assert that knowing and understanding the Right-to-Know Law is so fundamental to the proper operation of governmental bodies and the proper conduct of government officials and employees that we should demand that all public bodies/agencies and their employees know how to properly conduct the people’s business regarding access to governmental records and meetings. However, from my experience, many public officials do not fully understand and follow the RTK law.
I believe the main reason for their ignorance is that the penalty for their ignorance is minimal.
Always awarding attorney fees when a violation of the law is proven will create a more equitable deterrent against violations ultimately leading to greater compliance.
Please pass this bill and remove ignorance as a valid defense against the awarding of attorney fees for Right-to-Know law violations.
Right to Know NH 
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