Recently, Gov. Sununu signed into Law HB481 to establish the office of the right-to-know ombudsman and creates a simpler, less expensive, and faster alternative process to resolve complaints under RSA 91-A.
As an alternative to filing a petition in court, a citizen may file a written complaint with the office of the right to know ombudsman. The ombudsman will then require the public body/agency to provide an answer to the complaint within 20 days citing any justifications for their refusal to or delay in producing the requested governmental records, access to meetings open to the public, or otherwise comply with the provisions of the Right-to-Know Law (RSA 91-A).
In reviewing the complaint, the ombudsman is authorized to:
(a) compel delivery of governmental records to the ombudsman within 30 days for review,
(b) compel interviews with both parties and order attendance at hearings within a reasonable time, if hearings are necessary
(c) Within 30 days after the receipt of responses from both parties, provide written notice of any findings and order any other remedy to the same extent as provided by the court under RSA 91-A:8.
This bill has a sunset clause and will automatically be repealed on July 1, 2025.
RTKNH would like to thank the following sponsors of this bill: Rep. DiLorenzo, Rock. 17; Rep. Langley, Hills. 8; Rep. G. Sanborn, Graf. 6; Rep. Hopper, Hills. 2; Rep. Cushing, Rock. 21; Rep. M. Smith, Straf. 6; Rep. Weyler, Rock. 13; Rep. Ulery, Hills. 37; Sen. Rosenwald, Dist 13; Sen. Giuda, Dist 2
Additional Background Information:
The origins of this bill come from the recommendations of the 13 member Legislative Right-to-Know Study Commission created by HB 178.
The Study Commissions Final Report can be read at http://www.orol.org/rtk/rtknh/2017-10-31-HB178-Commission-Report.pdf
Governor Chris Sununu signed HB471, into law on 8/25/21 and it becomes effective 9/25/21. This law allows the Department of Justice to voluntarily maintain a list of current and former law enforcement officers with complaints and misconduct records known as the exculpatory evidence schedule (“EES”). This schedule will be a public record available under the Right-To-Know law. This bill also requires police disciplinary hearings to be open to the public unless certain confidential information may be revealed.
Governor Chris Sununu signed HB108, into law on 7/30/21. This law:
I. Requires that for meetings in nonpublic session where the minutes or decisions were determined to not be subject to public disclosure, a list shall be kept which shall include certain information. The list shall be made available for public disclosure.
II. Exempts materials falling within the attorney-client privilege or attorney work product doctrine from the provisions of RSA 91-A.
III. Establishes a committee to review authorizing governing bodies of municipalities to hold virtual meetings and to study remote access to meetings under RSA 91-A.
The State of Emergency declared by the Governor is no longer in effect as of June 12th.
This means the emergency order which was in effect regarding allowing electronic meetings are no longer in effect.
All public meetings must now be conducted according to the requirements outlined in RSA 91-A. Specifically,
- Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting.
- Each part of a meeting required to be open to the public shall be audible or otherwise discernable to the public at the location specified in the meeting notice as the location of the meeting.
- No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
Below is the testimony RTKNH submitted to the Commission on Law Enforcement Accountability, Community and Transparency (LEACT).
Dear LEACT Commission,
RTKNH is a nonprofit, nonpartisan citizen coalition working to improve access to New Hampshire state, county, and local government including all law enforcement agencies. We advocate to strengthen New Hampshire state laws, particularly the Right-to-Know law known as RSA 91-A, as well as Right-to-Know governmental policies.
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.”
As highlighted by a recent video by the New England First Amendment Coalition, the following issues exist in regards to achieving proper law enforcement accountability and transparency:
- Lack of availability of law enforcement records which are public records per RSA 91-A
- Excessive charges for copies of law enforcement records
Availability of Records
The public has a right to records which helps them understand what law enforcement is doing on our behalf. These records inform the citizens so they can hold public employees accountable for their actions. For example, all video and audio recordings made by a law enforcement officer using a body-worn camera, which are not considered an invasion of privacy, should be available to the public. Currently, most recordings are exempt from public disclosure.
Until recently, personnel records were categorically exempt from public disclosure. The following recent NH Supreme Court Rulings now require a determination of whether certain personnel records will continue to be exempt based on a balancing test between privacy interests and a public’s interest in disclosure.
- 2019-0135, Seacoast Newspapers, Inc. v. City of Portsmouth
- 2019-0206, Union Leader Corporation & a. v. Town of Salem
When it comes to the behavior of the law enforcement officers, in their official capacity, they should have no privacy or confidentiality interest in nondisclosure. Law enforcement officers perform vital functions on behalf of the public, and their misconduct creates the potential for considerable social harm. Officers are trusted with one of the most basic and necessary functions of civilized society, securing and preserving public safety.
Disclosure of misconduct is in the public interest. Yet, today, the names of law enforcement officers (150 in 2015 and 260 in 2019) who received due process and remain on the Exculpatory Evidence Schedule (EES) are shielded from the public’s right to know.
All citizens have the right to know which officers have engaged in misconduct, what they did, and what is being done to prevent it from happening again.
Law enforcement officers, 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. Transparency ensures bad behavior cannot hide behind a veil of secrecy. Secrecy erodes the public’s trust and nurtures an environment which allows greater harm to those which law enforcement officers swear to protect.
Cost of Records
RSA 91-A:4(IV) allows law enforcement agencies to charge the “actual cost’ of providing copies of public records. The City of Concord charges 25 cents for each page requested, which approximates a true actual cost. However, many other law enforcement agencies charge exorbitant minimum rates for records, which greatly exceeds the ‘actual cost’ allowed by law. For example:
- NH State Police charges $ 25.00
- Berlin charges $20.00
- Sandown charges $15.00
- Derry and Somersworth charge $10.00
Charging citizens such high fees to access records allows public agencies to construct toll booths along the information highway on route toward the truth. These high fees are financial deterrents as citizens run out of money long before they can discover the veracity of law enforcement’s decisions and actions.
In summary, as James Madison explained centuries ago: “The right of freely examining public characters and measures, and of free communication among the people, is the only effectual guardian of every other right.”
Only with full transparency can citizens freely examine the character and measures of law enforcement officers. And transparency is a prerequisite for full accountability to the people.
Please include transparency requirements in all of your recommendations.
[End of Testimony]
All citizens are encouraged to submit testimony by sending an email to LEACT@doj.nh.gov
Emergency Order #12 pursuant to Executive Order 2020-04, the following RSA 91-A meeting requirements are waived, effective immediately, for the duration of the State of Emergency:
- RSA 91-A:2,III(b) that a quorum of a public body be physically present unless immediate action is imperative
- RSA 91-A:2,III(c) that each part of a meeting of the public body be audible or otherwise discernible to the public “at the location specified in the meeting notice as the location of the meeting,” so long as the public body:
- Provides public access to the meeting by telephone, with additional access possibilities by video or other electronic means;
- Provides public notice of the necessary information for accessing the meeting;
- Provides a mechanism for the public to alert the public body during the meeting if there are problems with access; and
- Adjourns the meeting if the public is unable to access the meeting.
The Attorney General has published guidance on how to hold meetings during the State of Emergency.
View all Emergency Orders here
Governor Sununu signed HB 286 into law on July 10th.
HB286 changes the Right-to-Know Law (RSA 91-A) so that no cost shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.
This bill was drafted by Right to Know New Hampshire (RTKNH).
BILL SPONSORS: Rep. Sylvia, Belk. 6; Rep. McLean, Hills. 44; Rep. Spillane, Rock. 2; Rep. Wallace, Rock. 33
This change takes effect January 1, 2020.
Governor Sununu signed HB 396 into law on June 21th.
HB396 changes the Right-to-Know Law (RSA 91-A). When a request for a governmental record is denied or portions of the record are redacted, the public body must provide a written statement of the specific exemption authorizing the withholding of the record and/or redactions along with a brief explanation of how the exemption applies to the record withheld and/or redactions made.
This bill was drafted by Right to Know New Hampshire (RTKNH).
BILL SPONSORS: Rep. DiLorenzo, Rock. 17; Rep. Cushing, Rock. 21; Rep. Horrigan, Straf. 6; Rep. Ulery, Hills. 37; Rep. Wuelper, Straf. 3; Rep. Janvrin, Rock. 37; Rep. Morrison, Rock. 9; Sen. Giuda, Dist 2; Sen. Carson, Dist 14
This change takes effect January 1, 2020.
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.) Watch the video here.
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.
Governor Sununu signed HB252 into law on June 26th.
Any person aggrieved by a violation of the RTK law may petition the superior court for injunctive relief. This bill states that “Subject to objection by either party, all documents filed with the petition and any response thereto shall be considered as evidence by the court. All documents submitted shall be provided to the opposing party prior to a hearing on the merits. ”
This bill was drafted by Right to Know New Hampshire (RTKNH).
BILL SPONSORS: Rep. M. Smith, Straf. 6; Rep. Sylvia, Belk. 6; Rep. Berch, Ches. 1; Rep. Horrigan, Straf. 6; Rep. Cushing, Rock. 21; Rep. Hoell, Merr. 23; Rep. Backus, Hills. 19; Sen. Lasky, Dist 13
This change takes effect January 1, 2019.