On Tuesday the Senate Judiciary Committee heard testimony on HB178. This bill establishes a study commission on resolving Right-to-Know complaints. HB178 was previously passed by the House Judiciary Committee.
David Saad, President of RTKNH, appeared at the Senate Judiciary Committee hearing and testified in support of the bill.
Here is his written testimony:
To: Honorable Members of the Judiciary Committee
I ask you to support HB 178 to establish a commission to study complaints.
The Right-To-Know Law ensures openness and visibility into the actions, decisions, and records of government, therefore we have a right to know what decisions they are making, when they make them, and why they arrived at a given decision. Violations of the law diminishes our access to this information and creates an environment where misuse of power can flourish and distrust of government grows.
Should a citizen feel the law has been violated, currently, enforcement of the law falls squarely on the citizen’s shoulders. Costs and legal complexities associated with filing a petition in court is a financial and emotional burden, and for some it’s simply prohibitive. Additional costs are also born by public bodies and the courts. Regardless of who wins or loses the lawsuit, the taxpayer is burdened with a great deal of the total expense. To reduce these costs to the taxpayers, this study commission will study ways to reduce both the number of and the expense of resolving complaints.
Some of the alternative ways other states resolve right to know complaints include the use of:
- Independent Arbiters
- Advisory Councils
- Public Access Counselors
- Attorney General’s Office
- Compliance Boards
- Ombudsman Office
The appeals boards currently operating in NH (i.e. Tax and Land Appeals, Water Council, etc) also provide a framework and track record for success in resolving complaints.
These and other options should be reviewed for their merits with the goal of establishing a less costly procedure for resolving right to know complaints.
THIS BLOG POST IS ONE OF SEVERAL GUEST EDITORIALS THAT WILL BE PUBLISHED DURING SUNSHINE WEEK, HIGHLIGHTING THE NEED FOR MORE GOVERNMENT TRANSPARENCY.
Author: David Taylor
When push comes to shove, size matters. In court, size is measured in attorney’s fees. The one with the more expensive lawyer more often wins. It’s not fair, but it’s reality. With Right to Know, it’s often an average citizen against a municipal government. Spending taxpayer’s money, the city has the advantage.
It’s actually worse. Since Right to Know is such a basic right, a right to just get information, there isn’t any money in it. When an average citizen asks a lawyer to take a Right to Know case, they have to come up with thousands of dollars up front because the lawyer knows he’s got little chance of winning attorney’s fees. More often than not, this forces the average citizen to drop the suit, or brave the courts on his or her own. This stacks the odds against the average citizen.
This year, Right to Know NH tried to tip the balance back toward the citizen. After all, government works for the citizen. RTKNH proposed HB365 to remove a hurdle for citizens to recover attorney’s fees, which would lead to more lawyers being more willing to take on cases, and more citizens successfully defending their basic right.
The Right-to-Know Law only awards attorney’s fees if the city “knew or should have known” that they violated the law. In practice that is a high bar. If the city’s attorney said the city acted on his legal advice, then they win. If the N.H. Supreme Court hasn’t ruled on the specific statute, then they win. If the statute changed within the last year, then they win. A score card by the Center for Public Integrity a year ago flagged this specific provision as one of the main reasons New Hampshire got an F – and the second worst grade of all 50 states.
HB365 sought to remove “knew or should have known,” so that if a city violated the law, then they would pay attorney’s fees. Remember, ignorance of the law is no excuse. But, on a very close vote of 168 to 172 on reconsideration, HB365 was finally defeated in the House just last week.
As a result, the law remains tipped against the average citizen and New Hampshire will keep it’s F grade. Right to Know NH will continue to fight for the average citizen in the future. But, we need your help. Get engaged, assert your rights, raise your voice, and help tip the balance back in your favor the next time a bill like HB365 is up for vote.
David Taylor is Vice President of Right to Know New Hampshire and a resident of Durham. He can be emailed at firstname.lastname@example.org
Our government belongs to us. Part I Article 8 of the NH Constitution articulates the citizen’s right to know what their government is doing. This right is further codified in the Right to Know(RTK) Law (RSA 91-A).
Yes, citizens have the right to know what their government is doing on our behalf. But, when that right is violated, the citizen’s ability to enforce that right is severely limited because of a number of enforcement barriers that exist. These enforcement barriers are:
- There is no government agency responsible for monitoring compliance or enforcing the Right-to-Know Law. When a citizen believes the law has been violated, enforcement of the law falls squarely on the citizen’s shoulders.
- The only option for enforcement is through the court system.Costs and legal complexities associated with filing a petition in court is a financial and emotional burden, and for some it’s simply prohibitive. Last year, the Center for Public Integrity gave New Hampshire an F and the second lowest grade in the nation on Public Access to Information. The state ranked 49 out of 50. A key factor in that was the lack of any formal mechanism for appealing an agency’s rebuff of information requests. In such cases, a citizen’s only recourse is the court system.
- 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.
These enforcement barriers effectively function as toll booths along the enforcement highway on route toward the destination of equitable resolution and compliance with the Right to Know law. Many citizens simply run out of time and money long before they reach their destination.
This year, Right to Know NH authored three bills which have been introduced into the current session of the New Hampshire legislature to address these enforcement barriers.
HB178 establishes a commission to study processes to resolve right to know complaints. The objective of the commission will be to make recommendations which will:
- Encourage resolution of right-to-know complaints directly between citizens and public agencies and bodies.
- Reduce the burden and costs of right to know complaints on all parties including the citizens, courts, public agencies, and taxpayers
- Increase awareness and compliance with the right-to-know law to minimize violations.
Several other states have established independent arbiters to help resolve right to know complaints and minimize costs for all parties. This commission is a good first step towards the establishment of an independent arbiter to hear and resolve complaints which would allow for a streamlined and less costly resolution alternative to our court system. Testimony in support of this bill can be found here.
HB252 helps citizens who choose to enforce their rights through the courts by simplifying some of the rules regarding the admission of evidence by self-represented litigants. As many citizens cannot afford the thousands of dollars required to hire legal counsel, they must petition the court themselves. To ease the burden on all parties, this bill will simplify the legal process by allowing the petition to also function as a request for admission of evidence. This bill also requires that the response by the defendant be provided several days prior to the court date allowing the petitioner sufficient time to process the response and adequately prepare for the hearing. This change also saves time which is critical since Right to Know petitions are given high priority on the court calendar resulting in very short court imposed deadlines. Testimony in support of this bill can be found here.
As Thomas Jefferson said, “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.” Our organization agrees and HB365 will ensure that citizens will be able to recoup all legal expenses incurred when they win in court by no longer allowing ignorance as a valid excuse for not paying attorney fees. The penalties for failure to follow the law must provide adequate deterrents to increase compliance. 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. With taxpayer money backing the governmental entity, this bill will also create a greater incentive for public bodies to settle Right to Know complaints before going to court. The failing grade given to our state by the Center for Public Integrity was due in part because “the law sets a high bar for the recovery of attorney fees and other costs”. This bill lowers the bar by removing ignorance as a valid defense against the awarding of attorney fees. Testimony in support of this bill can be found here.
Our fourth bill, HB460, improves compliance by requiring that alleged violations that occur during a meeting and are identified by a member of the public body shall be recorded in the meeting minutes. When a member of a public body witnesses a violation of the Right-to-Know law during a meeting, they are put in a legally precarious position. If they speak up and the violation is not corrected, they could become a party to any legal action filed because of the alleged violation and suffer the consequences of personal liability including civil fines. Alternatively, the member could decide to leave the meeting and not be a party to any violation of the law. However, should they leave the meeting, they would be in no position to monitor and attempt to minimize the negative impact of the violation or thwart any further violations. This bill will provide that a member who reports open meeting violations will have immunity from personal penalty regarding the violation they reported. The objective of this bill is to allow a board member to continue to fulfill his or her duty on the board while having their alleged violation entered into the record. Testimony in support of this bill can be found here.
Please contact your representatives and ask them to support these bills. Let’s work together to shine more light on the workings of local, county, and state government throughout New Hampshire.
HB365 was voted 10-8 as ought to pass by the House Judiciary Committee. This bill allows lowers the threshold to award attorney’s fees. The majority report on the bill from the committee was written by Rep. Dan Hynes:
This bill amends RSA 91-A:8 to mandate attorney’s fees whenever a petitioner is successful in a 91-A lawsuit at superior court. Under the present law, attorney’s fees can only be awarded if “the court finds that the public body, public agency, or person knew or should have known that the conduct engaged in was in violation of this chapter.” As determined in the methodology related in the bill’s fiscal note: “The Department of Justice reports that during the past two years, 10 lawsuits have been filed under RSA 91-A. The state was ordered to pay attorney’s fees in one matter during the last two years, in the amount of $9,348. Other litigants unsuccessfully sought attorneys’ fees but the court denied the fees because it could not conclude the state knew or should have known there was a violation of the statute.” Since attorney’s fees have been awarded only once (10% of the time), there is little incentive for the government to provide required information under the right to know law. In many circumstances it would appear cost effective for the government agency to deny the request and hope the person does not pursue litigation. Even if the person is ultimately successful, the government agency will not have to make that person whole by paying their attorney’s fees. This bill would encourage the government to provide information under the right to know law. If the government does not properly respond to a right to know request, there is additional accountability. Presumably, more lawyers would take right to know cases and more cases would be filed. The present law already has adequate protection for the government entities. Under RSA 91-A:8, II: “The court may award attorney’s fees to a public body or public agency or employee or member thereof, for having to defend against a lawsuit under the provisions of this chapter, when the court finds that the lawsuit is in bad faith, frivolous, unjust, vexatious, wanton, or oppressive.” If passed, this law would likely only allow fees to the petitioner where they hire an attorney, not where they proceed pro se. Under Rule 3.1 of the Rules of Professional Conduct for lawyers: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Presumably, there should not be any increase in frivolous litigation as the current laws already effectively prohibit such conduct. It would not be appropriate to allow either party to recover attorney’s fees if they are successful in litigation. This would have the effect of even fewer litigants pursuing complaints if they are likely to have to pay thousands of dollars in the event their lawsuit is not successful.
The minority report on the bill from the committee was written by Rep. Sandra Keans:
The minority of the committee believes this bill is unnecessary and may in fact have unintended consequences. Since the passage of the original right-to-know law there have been changes to strengthen it almost every year, either by the legislature or the court. Plaintiffs currently can make a showing to the court that they deserve reimbursements of their costs if they prevail. Under this legislation, if they win, they would always be reimbursed. That is not true for your local community. That plaintiff may be just a citizen or a huge corporation. Your community would need to appropriate money to cover. Also, through the years, as word of suits become published, more and more communities are training employees to recognize valid requests in response.
This bill now goes to the full House for a vote on the regular calendar on February 9, 2017.
HB123 was voted 15-0 as ought to pass by the House Municipal and County Government Committee. This bill no longer requires notice for continued ZBA meetings. The report on the bill from the committee was written by Rep. Carolyn Matthews:
Since current law is silent on the process for continuing and noticing hearings of the Zoning Board of Adjustment (ZBA), towns are legally vulnerable when the ZBA must continue a hearing, and also vulnerable when they choose not to re-notice. This bill spells out that ZBA’s may continue a hearing and need not re-notice the hearing by mail to abutters. The committee believes that this procedure, which is the same procedure in statute for the planning board, makes sense and that abutters are protected in a similar fashion as with planning board hearings that must be continued.
This bill now goes to the full House for a vote on the consent calendar on February 9, 2017.
HB109 was voted 12-5 to be inexpedient to legislate by the House Judiciary Committee. This bill exempts local building plans from public disclosure. The majority report on the bill from the committee was written by Rep. Kurt Wuelper:
This bill seeks to protect privacy rights, primarily to special security data in building plans, by removing them from the public’s right to know under the right-to-know law. The committee heard about citizens’ need to know about buildings plans to ensure fair application of tax assessments, public safety codes, occupancy permits, etc. That law already exempts “other files whose disclosure would constitute invasion of privacy,” and the committee believes that such detailed security data could be protected by that language or by redaction.
This bill now goes to the full House for a vote on the regular calendar on February 9, 2017.
David Taylor of Durham NH, a member of RTKNH, submitted testimony to the House Municipal and County Government in opposition to HB123.
Here is his testimony:
Honorable Members of the House Municipal and County Government Committee
My name is David Taylor. I live in Durham, NH and I served for 12 years on the Oyster River School Board. I oppose HB123. Thank you considering this testimony.
There are several reasons I oppose HB123. The first is that it is not needed. The courts many years ago in 1980 decided that a meeting that is continued to a time and place stated at the original meeting does not require further notice. Here is the case that established this precedent: Town of Nottingham v. Harvey, 120 N.H. 889, 894 (1980):
Second, even though the courts have decided that a continued meeting does not require further notice, the purpose of the Right-to-Know Law of providing the greatest possible access to the public is best served by providing further notice when it is reasonable to do so. If a person couldn’t make the first meeting, but sees a notice for the continuation, they might attend what they can. So, it is best not to write into statute this provision so that boards will err on the side of greater notice.
Third, the bill goes too far because it allows any continuation, even an unreasonable one, to be allowed. Clearly there is a difference between a meeting continued to a few days from now, and one that is continued weeks or months from now. The language of this bill does not place any reasonable limit on the continuation.
Fourth, there is nothing special about a ZBA. Every type of public body at all levels of government may need to continue a meeting. Some of these other bodies also have special notice requirements beyond those provided for all public bodies in the Right-to-Know Law. However, any provisions about continuing meetings should be in RSA 91-A.
I hope you will consider my concerns about HB123 and vote that it is inexpedient to legislate.