Senate Bill 555 to establish an ombudsman under the Right-to-Know Law has been introduced in the N.H. Senate and assigned to the Senate Judiciary Committee. This bill is sponsored by Sen. Bob Giuda (R), Sen. Martha Fuller Clark (D), Rep. Jordan Ulery (r), Sen. Sharon Carson (R), Sen. William Gannon (R), Sen. Daniel Innis (R), Sen. Harold French (R), Rep. Gary Hopper (R), and Rep. Charlotte DiLorenzo (D). RTKNH supports this bill that was the result of last year’s RTK study commission.
SB555 is scheduled for a hearing by the Senate Judiciary Committee on Tuesday, January 23, 2018 at 10:15 a.m. in room 100 of the State House in Concord, N.H. The public is encouraged to attend and testify in favor of this bill.
This bill adds 3 new provisions to RSA 91-A:7 and then adds several new sections starting with RSA 91-A:7-a. The bill modifies RSA 91-A:7 to read as follows:
I. Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief. In order to satisfy the purposes of this chapter, the courts shall give proceedings under this chapter high priority on the court calendar. Such a petitioner may appear with or without counsel. The petition shall be deemed sufficient if it states facts constituting a violation of this chapter, and may be filed by the petitioner or his or her counsel with the clerk of court or any justice thereof. Thereupon the clerk of court or any justice shall order service by copy of the petition on the person or persons charged. When any justice shall find that time probably is of the essence, he or she may order notice by any reasonable means, and he or she shall have authority to issue an order ex parte when he or she shall reasonably deem such an order necessary to insure compliance with the provisions of this chapter.
II. In lieu of the procedure under paragraph I, an aggrieved person may file a complaint with the ombudsman under RSA 91-A:7-b and in accordance with RSA 91-A:7-c.
III. A person’s decision to petition the superior court forecloses the ability to file a complaint with the ombudsman pursuant to RSA 91-A:7-c.
IV. A person’s decision to file a complaint with the ombudsman forecloses the ability to petition the superior court until the ombudsman issues a final ruling or the deadline for such a ruling has passed.
The bill then adds these new sections after RSA 91-A:7:
91-A:7-a Citizens’ Right-to-Know Appeals Commission Established. There is established a commission to manage and oversee an alternative right-to-know complaint resolution process.
I. The members of the commission shall be as follows:
(a) One member of the senate, appointed by the president of the senate.
(b) Two members of the house of representatives, appointed by the speaker of the house of representatives.
(c) The attorney general, or designee.
(d) A member, appointed by the chief justice of the supreme court.
(e) The secretary of state, or designee.
(f) A representative of Right to Know NH, appointed by that organization.
(g) Ten citizen members, one from each county, no more than 4 of whom shall be current, local, county, state or federal employees or currently serving in any elected or appointed capacity with any political subdivision, public agency or public institution; and 10 alternate members, one from each county, no more than 4 of whom shall be current local, county, state, or federal employees or currently serving in any elected or appointed capacity with any political subdivision public agency or public institution; all appointed by the governor with advice and consent of the council.
II. The members of the commission shall serve without compensation, but shall be reimbursed for necessary travel and other necessary expenses. Legislative members shall receive mileage at the legislative rate when attending to the duties of the commission.
III. Legislative members of the commission shall serve a term coterminous with their term in office. The members appointed under subparagraph I(g) shall serve for a term of 3 years, except that the initial appointment of such members shall be for staggered terms of one, 2, and 3 years. No member shall serve more than 3 consecutive terms. No member under subparagraph I(g) shall be a current lobbyist or an attorney for any entity subject to this chapter, or an attorney for any organization representing the interests of such entity. Nor shall any such member be employed by any such lobbyist or attorney. The member appointed under subparagraph I(d) shall recuse himself or herself from any court proceedings involving appeals under this chapter. The members appointed under subparagraphs I (c)-(f) shall be advisory only members who shall advise the voting members on questions of law and existing policy governing RSA 91-A.
IV. The commission shall:
(a) Establish rules of procedure to accomplish the mission of the commission to make resolution of complaints under this chapter fast, easy, and inexpensive.
(b) Recruit, screen, and select ombudsman candidates, who shall serve at the will of the commission.
(c) Appoint an ombudsman and evaluate the ombudsman’s performance on a periodic basis, at least annually.
(d) Make recommendations to the legislature concerning proposed changes to this chapter.
(e) Create, and update annually, educational materials relative to this chapter.
V. The members of the commission shall elect a chairperson and a vice chairperson annually from among the voting members. The first meeting of the commission shall be called by the senate member. The first meeting of the commission shall be held within 45 days of the effective date of this section. Seven voting members of the commission shall constitute a quorum.
VI. The commission shall be administratively attached to the department of state.
VII. Beginning November 1, 2019, and each November 1 thereafter, the commission shall submit an annual report of its findings and any recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, and the governor. The report shall also include the total number of complaints received, the number of complaints received concerning public records and public meetings, the number of complaints received concerning state and county agencies, municipalities, school administrative units, and other public entities, the number of complaints in which a ruling was rendered by the ombudsman, the number of violations of each provision of this chapter found by the ombudsman, and the number of ombudsman rulings that were appealed to the superior court, including whether the appeal was from a complainant or a public agency or official, and whether the ombudsman’s ruling was sustained before the superior court.
91-A:7-b Office Established. There is hereby established the office of the right-to-know ombudsman to be administratively attached to the department of state under RSA 21-G:10. The ombudsman appointed by the commission established under RSA 91-A:7-a shall:
I. Be a member of the New Hampshire bar.
II. Have a minimum of 10 years full-time practice of law in any jurisdiction.
III. Be experienced with and knowledgeable of the provisions of this chapter, the federal Freedom of Information Act, and other states laws regarding right-to-know.
IV. Complete a minimum of 3 hours of continuing legal education courses or other training relevant to the provisions of this chapter.
91-A:7-c Complaint Process.
I. Any party aggrieved by a violation of this chapter shall have the option to either petition the superior court or file a signed, written complaint with the office of the ombudsman, established under RSA 91-A:7-b. Any signed, written complaint filed with the ombudsman shall attach, if applicable, the request served on the public agency or official and the written response of the public agency or official.
II. Once a complaint has been filed and provided by the ombudsman to the public body or public agency, the public body or public agency shall have 10 days to submit an acknowledgment of the complaint and an answer to the complaint, which shall include applicable law and a justification for any refusal to or delay in producing the requested information.
III. In reviewing complaints filed with the ombudsman, the ombudsman shall be authorized to:
(a) Compel timely delivery of records, regardless of medium, for confidential in-camera review.
(b) Compel interviews with the parties.
(c) Order attendance at hearings.
(d) Issue findings in writing to all parties.
(e) Order a public body or public agency to disclose requested records, provide access to meetings, or otherwise comply with the provisions of this chapter, subject to appeal.
(f) Make any finding and order any other remedy to the same extent as provided by the court under RSA 91-A:8.
IV. The ombudsman may draw negative inferences from a party’s failure to participate and comply with orders during the review process.
V. In implementing the provisions of this section, the ombudsman shall follow the procedures established by the commission.
VI. The ombudsman shall determine whether there have been any violations of this chapter and issue a ruling within 30 days following receipt of the parties’ submissions and, if applicable, the records following an in-camera review. This 30-day deadline may be extended to a reasonable time frame by the ombudsman for good cause. The ombudsman may also expedite resolution of the complaint upon a showing of good cause. Rulings on expedited complaints shall be issued within 10 business days, or sooner where necessary.
VII. The ombudsman shall access governmental records in camera that a public body or public agency believes are exempt in order to make a ruling concerning whether the public body or public agency shall release the records or portions thereof to the public. The ombudsman shall maintain the confidentiality of records provided to the ombudsman by a public body or public agency under this section and shall return the records to the public body or public agency when the ombudsman’s review is complete.
VIII. Nothing in this section shall affect the ability of a person to seek relief in superior court under RSA 91-A:7, I in lieu of this process.
91-A:7-d Appeal and Enforcement.
I. Any party may appeal the ombudsman’s final ruling to the superior court by filing a notice of appeal in superior court no more than 30 days after the ombudsman’s ruling is issued. The ombudsman’s ruling shall be attached to the document initiating the appeal, admitted as a full exhibit by the superior court, considered by the judge during deliberations, and specifically addressed in the court’s written order. Citizen-initiated appeals shall have no filing fee or surcharge. The public body or public agency shall pay the sheriff’s service costs if the public body or public agency, or its attorney, declines to accept service. Nothing in this section shall prevent a superior court from staying an ombudsman’s decision pending appeal to the superior court.
II. A superior court appeal of the ombudsman’s ruling shall review the ruling de novo.
III. If the ombudsman’s final ruling is not appealed, the ombudsman shall, after the deadline has passed, follow up with all parties, as required, to verify compliance with rulings issued.
IV. The ombudsman’s final rulings which are not appealed may be registered in the superior court as judgments and enforceable through contempt of court. If such action is necessary to enforce compliance, all costs and fees, including reasonable attorney fees, shall be paid by the noncompliant public body or public agency.
91-A:7-e Rulemaking. The commission, in consultation with the secretary of state, shall adopt rules pursuant to RSA 541-A relative to:
I. Establishing procedures to streamline the process of resolving complaints under this chapter.
II. Further qualifications and review of the ombudsman, established in RSA 91-A:7-b.
III. Content of educational materials under RSA 91-A:7-a.
IV. Other matters necessary to the proper administration of RSA 91-A:7-a through RSA 91-A:7-d.
The bill appropriates $48,000 for the new ombudsman.
The full text of the bill is available here.