Members of panel, left to right: Mark Hayward, Union Leader; David K. Taylor, Right to Know NH; Greg V. Sullivan, NEFAC; Lisa English, NH Asst. AG; Hon. William Delker, Superior Court Justice; Gilles Bissonette, NH ACLU. (Steve Bolton, Nashua Attorney, not shown.)
These are the remarks by David K. Taylor of Right to Know NH tonight at the Sunshine Week Panel discussion sponsored by the Nackey Loeb School and New England First Amendment Coalition.
Right to Know NH is a citizen’s group working to strengthen the Right to Know across our state. The biggest way we do that is through bills to change the Right-to-Know Law, RSA 91-A. Since we were formed in 2013, we have proposed a handful of bills each year.
Our first bill was a mess. Throughout 2013 we met monthly, going through all of RSA 91-A, word for word, proposing lots of changes. We combined the more than 20 changes into one bill, HB 1156. To our frustration, the House amended it, to throw out all our changes and replace them with a handful of changes to weaken the law. We had to work hard in the Senate to get it killed. Not a good start.
The lesson we learned that first year was to take smaller steps in a few separate bills. This strategy has been more successful.
Each year since 2014, Right to Know NH has proposed, at least in part, a few bills, and each year at least one of those bills have been signed into law. In 2015, 2 out of 3 became law. In 2016, it was 2 out of 4. In 2017, it was 4 out of 5. Last year, it was 1 out of 9. This year, we had a part in 4 bills, and all 4 are still alive.
Here are some of the new provisions in these bills that became law:
– votes to seal non-public minutes must be taken in public, (2015 HB108)
– non-public minutes have the same requirements as public minutes, (2016 HB1418)
– non-public minutes must record how each member voted on each action, (2016 HB1419)
– minutes must record who made and who seconded each motion. (2018 HB1347)
Another one of our bills that passed, encourages meeting notices and minutes to be posted consistently on the web. It only applies to those towns and agencies that already have a website and chose to use the web for this. So, we’d like it to be stronger, but it is a step forward. (2017 HB170)
One bill that passed encourages members of public bodies to help enforce the Right-to-Know Law during a meeting. This provision encourages members to object when they think the law is being violated. If they ask, this objection must be recorded in the minutes, so the public can easily see it. We actually hope that this objection would start a discussion by the public body at the meeting, leading them to fix the violation instead of continuing on. The incentive to object, is the member would not be subject to a personal fine under the law for the violation. (2017 HB460)
Another bill passed, to make it easier for citizens to enforce the Right-to-Know Law in court. A common mistake for citizens who go to court without a lawyer, is to assume that documents filed with a petition will be taken as evidence. Formally, they must ask the court to admit the evidence. This provision makes the court take these documents as evidence unless there is an objection. It effectively changes the evidence from opt in to opt out. This bill also requires a response to a petition to be filed a head of the court date. In my own case, for example, I was handed the answer as I walked into court, so I didn’t even have time to read it before the trial started. This provision makes sure that won’t happen again. (2017 HB252)
We’ve had some repeated failures, too, of course, for example: posting of agendas, notices posted more than 24 hours in advance, and, minimal records of non-meetings.
Two other bills that passed, are part of 2 long-term fights: the first deals with free inspection of records. 2015 HB138/HB606 The second seeks an alternative to going to court to enforce the Right-to-Know Law. (2017 HB178)
In 2015, we proposed a bill to make inspection of records free. (HB138) This is a fundamental goal for Right to Know NH. That year other bills sought to make electronic records free. (HB606) Our bill was combined with these others, and unfortunately, the language got muddled, and courts have since interpreted the language, differently than intended. The fight for free inspection of records continues this year. HB286 was voted to pass 20-0 out of committee and we are hoping that strong support will continue on the floor of the House and into the Senate. However, last year a similar bill, was killed in the Senate.
The big Right-to-Know bill this year is actually multiple bills, all trying to establish an ombudsman to enforce the Right-to-Know Law. This effort started back in 2014, when Harriet Cady of Right-to-Know NH proposed a grievance commission, as an alternative to going to court. This idea failed in 2014 and again in 2015. In 2016, a bill failed that called for a study commission of the idea. In 2017, another bill passed to establish that study commission. That study lead to a bill last year to establish an ombudsman. That bill failed, but lead to the multiple similar bills this year, one in the House, HB 729 and one in the Senate SB 313. Both of these bills have been amended, passed out of committee and on the floor, and are now in the Finance committees.
In the near future, I see 3 major themes for Right-to-Know bills: 1) the ombudsman, 2) bureaucratic obstacles to records, and 3) electronic records.
Though it has been a long fight, there is now a strong consensus in New Hampshire that an ombudsman is the best alternative to court. Both of the ombudsman bills this year will sunset in 4 years. So, even if one passes this year we will need a new bill in 4 years to keep it going. This is also a big change, albeit a good change, so I’m sure we will need smaller bills in the meantime to make it run smoothly.
I’ve already mentioned free inspection of records. Charging for inspection is just one way some towns and agencies make it hard to access records. There are other common obstacles: high copy costs, needless delays, interpreting records requests narrowly, and so on. Delays and unexplained or apparently unjustified denials for records are the most common complaint citizens ask Right to Know NH about.
An idea to address one of these obstacles, is in the federal Department of Justice guidance for FOIA requests. The guidance is that they should make a good faith effort to steer a badly worded request toward readily accessible records. That is, if they don’t have exactly what you asked for, but they do have something you might find useful, they should give you that option. Each of these obstacles is an opportunity for future bills.
The last fertile theme I’ll bring up is access to electronic records. More and more records are electronic, many from beginning to end. A decade ago, RSA 91-A was revised to deal with electronic records. However, this revision did not recognize the internet, and technology has continued to advance quickly.
Electronic records have lots of complexities compared to paper: metadata, file formats, copying to media including the internet, cyber security, redaction, publishing on the web, and many more.
Metadata is information embedded inside electronic records. An example of useful metadata is a formula in a spreadsheet. A spreadsheet with active formulas can allow a citizen to easily try out what ifs. A counter example of metadata are tracked changes in a document. These could be considered a record of internal deliberations in an agency, not subject to public disclosure under executive privilege. But, what if that document is distributed to a quorum of a public body with those changes still tracked. At that point, those changes may become subject to disclosure. In general, may a citizen request metadata? How is metadata redacted? How does an agency even know what metadata is in a record?
There are similar complexities related to file formats such as how does a citizen get electronic data from a proprietary formatted database. Different formats provide different levels of usefulness. For example, an electronic spreadsheet is very different than a paper printout of that spreadsheet or even a PDF. Can a citizen request a specific format? What formats might be available for a particular record? What if the citizen doesn’t have the software needed to read a particular format?
The questions go on: What is the actual cost of copying electronic records? What are the costs of copying over the internet? How can electronic records be effectively redacted but remain in a useful format? How can electronic records be made available for inspection? How do we encourage more electronic records to be published on the web?
We are going to have more questions as electronic records become more pervasive and more advanced. We need to identify, understand, and prioritize these issues so we can propose bills to ensure that public access to governmental records gets stronger in New Hampshire.
The Right to Know Law is meant to provide transparency and accountability in our government, but citizens often run into roadblocks attempting to get public bodies and agencies to live up to the letter and spirit of the law.
RTKNH receives citizen complaints from across the state as we are a resource people turn to when they feel their public officials are not lawfully responding to their right to know requests. In 2018, we received 68 inquiries. This was a 15% increase over 2017.
In 2015, the Center for Public Integrity, winner of the Pulitzer Prize, evaluated the freedom of information laws of all 50 states as part of its State Integrity Investigation. In the Category of Public Access to Information, New Hampshire earned a grade of F, and ranked 49th out of 50 states. In the category titled “In practice, citizens can resolve appeals to access to information requests within a reasonable time period and cost,” New Hampshire received a score of 0.
Those findings summarized what many Right to Know advocates already knew. In NH, the burden to resolve Right to Know complaints is very high for citizens because one has to file a petition in Superior Court.
Senate Bill 313 was created based on the recommendations of the 13 member Legislative Right-to-Know Study Commission created by the passage of HB 178 in 2017.
After 2 months of meetings, a cross representation of stakeholders, including the NHMA, unanimously agreed that citizens need a grievance resolution process which is easier, cheaper, faster and results in less cost for all parties. Establishing an independent Ombudsman and a Citizens’ Right-to-Know Appeals Commission was the unanimous recommendation after considering a number of alternatives.
While there is a cost to hiring the Ombudsman there will be considerable savings to offset the costs to taxpayers. By avoiding litigation, public bodies and agencies will often be spared court costs and attorney fees. In the court case of Porter v. Town of Sandwich, the town paid more than $200,000 in attorney fees. The town of Tuftonboro paid over $20,000 in legal fees and lost their Right-to-Know lawsuit. Last year, several State Representatives were forced to file a lawsuit against the Coakley Landfill Group because that group failed to provide documents requested under the Right-to-Know Law. Again, tax dollars were spent on legal fees to resolve this complaint.
While the Ombudsman will resolve the complaints, the Appeals Commission will serve a critical role which includes establishing policies and procedures for the Appeals process and educating interested parties on the Right-to-Know Law to increase awareness, compliance, and minimize future violations. The Commission will also compile statistics and make recommendations to the legislature concerning proposed changes to the law.
Please contact your legislators and ask them to support SB 313 which creates a low cost, speedy, credible, and impartial grievance resolution process for citizens and public bodies.
RTKNH testified in support of HB 153 which will make some police disciplinary records public when the officer has discharged his weapon, or was found guilty of sexual assault or dishonesty which includes perjury, false statements, filing false reports, and destruction/falsifying/concealing evidence.
Below is the testimony by David Saad, President RTKNH provided to the House Judiciary Committee on January 23rd.
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.”
The determination of whether certain records should be exempt often comes down to a balance between privacy interests and a public’s interest in disclosure. The courts use the following 3 steps to evaluate whether disclosure constitutes an invasion of privacy:
- Is there a privacy interest at stake that would be invaded by the disclosure?
- Would disclosure inform the public about the conduct and activities of its government?
- Balance the public interest in disclosure against the government’s interest in non-disclosure and the individual’s privacy interest in non-disclosure.
Police officers should not have a privacy interest with respect to their official conduct.
When it comes to the behavior of the police in their official capacity, especially when it concerns misconduct, there is no privacy or confidentiality interest in nondisclosure. Police officers perform vital functions on behalf of the public, and their misconduct creates the potential for considerable social harm. Police officers are trusted with one of the most basic and necessary functions of civilized society, securing and preserving public safety.
Disclosure of police misconduct is in the public interest. Per RSA 651-B:1, if an officer is found guilty of sexual assault as defined in RSA 632-A, he could be required to register as a sexual offender because “the protection of the public would be furthered”. Shouldn’t their disciplinary records be public for the same reason?
Police, 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 to insure bad behavior cannot hide behind a veil of secrecy, erode the public’s trust, or bring harm to those they swear to protect.
RTKNH testified in support of HB 286 which will change the Right-to-Know Law to insure records can be inspected at no cost.
Below is the testimony by David Saad, President RTKNH provided to the House Judiciary Committee on January 23rd.
In 2015, 3 bills (HB 138, HB 656, and HB 606) were introduced. HB 138 stated “No fee shall be charged to make a governmental record available for inspection.” HB 656 stated “No fee shall be charged to view public records either in-house or online.”
As stated in the House Record (HC19):
Rep. Michael J. Sylvia for the Majority of Judiciary. The people’s right to access governmental records is an important function of RSA 91-A. Maintaining transparency of government is one of our constitutional duties. HB 606 incorporates similar concepts which were presented in three bills all addressing access to governmental records under RSA 91-A:4 IV; HB 606, HB 138 and HB 656. All three sought to make clear that there should be no fee charged for the inspection of records made available under 91-A. HB 606 as amended, also includes access to online records without a charge.
The final result was HB 606 which stated “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form”.
The goal of this bill was to “prohibit a public body or agency from charging a fee for making a governmental record available for inspection or from charging a fee for inspection of such record.”
After several lawsuits which tested this new language, the courts have ruled that costs can be charged even when someone only wants to inspect a record. In Taylor v. SAU 55 and Salcetti v. Keene, if an electronic record is transferred internally within an agency to make the record available for inspection, a charge is allowed because that scenario falls outside the definition of “delivery without copying”.
Also, when a paper or electronic record requires redaction, often public bodies will redact a paper copy of the record and charge copy costs to make the redacted version available for inspection.
This bill adds language to achieve the original goal of HB 606 which is that when a person only wishes to inspect a record, that record, in whatever format it may exist, after any lawful redactions have taken place, will be made available for inspection at no cost or fee.
Please make it perfectly clear that citizens shall not have to pay to inspection a governmental record.
RTKNH testified in support of HB 396 which will change the Right-to-Know Law and require citing the specific exemption when record requests are denied.
Below is the testimony by David Saad, President RTKNH provided to the House Judiciary Committee on January 23rd.
RTKNH receives citizen inquiries from across the state as we are a resource people turn to when they feel their public officials are not lawfully responding to their right to know requests.
In 2018, we received 68 inquiries. This was a 15% increase over 2017. An overwhelming majority of these inquiries are the result of record requests which are denied or delayed. In many of these instances, the public officials do not provide an adequate explanation for the denial or delay. Without an adequate explanation, citizens feel their record requests are being stonewalled, they are unable to exercise their right to know, and they lose trust in their government.
The existing law does state that when record requests are denied, the denial must be “in writing with reasons”, however, this language is too vague. Often, public officials simply state that the records are exempt from disclosure and provide no further explanation.
Without a statement of the specific exemption relied upon for the denial, the citizen has little confidence that the public official has completed the necessary due diligence to identify the lawful exemption for each record withheld from disclosure.
Article 8, Part 1 of the NH Constitution states that our government is “at all times accountable to” the people. Being accountable should include providing a sufficient and lawful explanation when information is being withheld from the people.
Author: David Saad, RTKNH President
Last year, SB 555 was drafted in response to the recommendations of the 13 member Legislative Right-to-Know(RTK) Study Commission created by the passage of HB 178. I was one of the 13 members on the Study Commission. I was also one of the members tasked with writing the Final Report published by the Study Commission and I contributed to the drafting of SB 555.
After 2 months of meetings, the study commission unanimously agreed that citizens needed a grievance resolution process which is easier, cheaper, faster and results in less cost for all parties. Establishing an independent Ombudsman and a Citizens’ Right-to-Know Appeals Commission was the recommendation after considering a number of alternatives.
While HB 103 includes some of the original language of SB 555, the bill includes many changes which violate the recommendations of the commission. Specifically, this bill:
- Adds a $300 fee to file a complaint with the Ombudsman and removes the language that citizen’s initiated appeals shall have no filing fee or surcharge. The Study Commission recognized the need to ‘provide the public with an easier, less expensive… process to resolve complaints’. The $300 fee is higher than the cost to file a petition in court so it more expensive not less expensive. Any fees should be nominal since many times the citizen is fighting to prove a RTK violation which is a violation against all citizens and in the public interest.
- Eliminates citizen oversight of the Ombudsman. The Study Commission agreed that the Ombudsman should be established with oversight by a citizen’s Right-to-Know Appeals commission. The Right-to-Know Appeals commission would serve a critical role which includes establishing policies and procedures for the Appeals process and educating interested parties on the Right-to-Know Law to increase awareness, compliance, and minimize future violations. They will also compile statistics and make recommendations to the legislature concerning proposed changes to the law.
- Attaches the ombudsman to the department of justice. The Study Commission spent a great deal of time deliberating on the need for the utmost need for impartially by the Ombudsman. The study commission believed the Attorney General’s Office would not be a viable option since the Attorney General’s Office represents state agencies in Chapter 91-A disputes and the Attorney General’s Office itself is the recipient of many right-to-know requests which would be a conflict of interest. For these reasons, and out of concern for citizen’s perceptions, the study commission determined the Attorney General’s Office may have difficulty performing the impartial role of grievance resolution.
RTKNH strongly supports the need for an ombudsman to handle Right-to-Know complaints, however, we oppose HB 103 because it goes against several of the recommendations of the Study Commission.
The majority of Right-to-Know complaints have to do with records requests either being delayed, denied, or records being redacted without sufficient justification for the redaction. Bill LSR-2019-0403 addresses the issue by requiring the public body to furnish reasons, in writing, for the delay or denial of records. When records are denied, it further requires the specific exemption relied on for the denial. Currently, many public bodies error on the side of denying records because they don’t have to justify their denial to the citizen. This bill requires them to justify, in writing, why they are denying records.
Rep. Charlotte DiLorenzo, Sen. Bob Giuda, Rep. Robert Renny Cushing, Rep. Jordan Ulery, Rep. Timothy Horrigan, Rep. Kurt Wuelper, and Rep. Jason Janvrin have sponsored this bill (LSR 2019-0403). Please contact your legislator and ask them to sign on as a cosponsor for LSR 2019-0403.