What would you do if a huge warehouse and distribution center was being developed on an old golf course in your neighborhood? You’d get involved, of course! You’d go to meetings and ask for public records about the project. What would you do if your town stonewalled giving you key public records? You’d have to take your town to court.
This is where several citizens of Hudson who informally call themselves SaveHudsonNH are now. And with the money behind such a big project, this Right-to-Know case is far from typical. Their case started pro se, without a lawyer, but quickly got too complicated.
Some aspects of the Hudson case are typical. They asked for email records and is often the case Hudson did not provide the attachments. Of course, for a big building project, the key details are in those attached studies and plans. So, not getting the email attachments means they don’t have the details they need to hold Hudson and the developer accountable and make sure the interests of the citizens of Hudson are kept in mind. And, they didn’t get emails from lots of personal email accounts used by many Hudson officials evaluating the project.
A typical Right-to-Know case is pro se and doesn’t involve any discovery. There are no depositions or subpoenas for records. Discovery can be imposing and expensive, which is why Hudson and the developer are needlessly pressuring the citizens of Hudson with discovery against them.
Further, there are a flurry of complicated motions back and forth, making the case more complicated and again more expensive. Right now, there is a hearing scheduled for November 1, 2021 for 6 different pending motions: Motion to Compel, Motion to Amend Complaint, Motion to Dismiss, Motion for Evidentiary Hearing, Motion for Rule 29 Protective order, and Motion for Summary Judgment.
While this case in Hudson is more complicated than the typical Right-To-Know case, it highlights that going to court to get access to public records is always a burden. This is just another example of why Right to Know NH is supporting House Bill 481 to add a Right-to-Know Ombudsman to keep these cases out of the courts and provide greater access for all citizens at less cost to everyone.
The State of Emergency declared by the Governor is no longer in effect as of June 12th.
This means the emergency order which was in effect regarding allowing electronic meetings are no longer in effect.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.
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
Above: N.H. RTK Study Commission members at final meeting. Seated, left to right, Rep. Jordan Ulery, Sen. Bob Giuda, Harriet Cady. Standing, Lisa English, Mark Derby, Rep. Charlotte DiLorenzo, Rep. Gary Hopper, Mark Hounsell, David Saad, Christine Hilliard for Gilles Bissonnette.
A New Hampshire commission report recommends a new ombudsman to more easily and cheaply resolve complaints under the Right-to-Know Law, RSA 91-A. The Commission to Study Processes to Resolve Right-to-Know Complaints was required to file its report by November 1, 2017. The Commission was formed under RSA 91-A:8-a by passage of HB 178.
The ombudsman will be a professional attorney. He or she will review and investigate complaints filed by citizens alleging violations of the Right-to-Know Law. The ombudsman will have the power to review confidential records in camera and issue an order detailing his or her results, including applying RSA 91-A remedies such as disclosing records or levying fines.
The ombudsman will be hired by a new Citizens’ Right-to-Know Appeals Commission. This new Commission will oversee and supervise the ombudsman as well as report annually on Right-to-Know complaints and recommendations for changes to RSA 91-A.
The RTK Study Commission was lead by co-chairs Sen. Bob Giuda and Rep. Jordan Ulery. Sen. Giuda presided over most meetings and drove the committee to complete its report by the deadline. Sen. Giuda also pledged to file a bill in the Senate to implement the recommendations in the report. The report also recommends improved training on the Right-to-Know Law and lower fees.
The complete report is available here.
As detailed in an article published by the Union Leader, lawyers for the city of Manchester told city officials they cannot charge a fee when people use their own equipment to copy or photograph public records.
According to the Right-to-Know Law RSA 91-A:4 “Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, including minutes of meetings of the public bodies, and to copy and make memoranda or abstracts of the records or minutes so inspected…”
Furthermore, the law only allows for copy fees “If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency.”
In summary, per the Right-to-Know Law the public may inspect and make copies using their own equipment (i.e. a cell phone) without charge.
Our Right-to-Know Law is failing. The Center for Public Integrity, winner of the Pulitzer Prize, evaluated the freedom of information laws of all 50 states as part of its broader 2015 State Integrity Investigation. New Hampshire ranked 49th, a mere one point ahead of Wyoming which holds the worst score.
Our government belongs to us. Enshrined in Part 1 Article 8 of the New Hampshire Constitution, we have the right to know what our government is doing on our behalf. Right to Know New Hampshire continues to fight for improvements to the Right-to-Know law (RSA 91-A) to make our government more open, more accessible, and more accountable. I offer the following three ideas for legislative changes which would make it easier for us to exercise our right to a more open and transparent government.
First, no fees to inspect government records. The records of our government belong to the people and a citizen should not be charged fees to look at any record. Consider a citizen or news reporter who notices something odd like a decision of a board that came out of nowhere or an expenditure that does not seem to be in the public’s best interest. Through public records, they investigate to identify illegal decisions made by public officials or to root out public corruption. Why should the person requesting records pay fees when the records 1) already belong to the citizens, 2) they contribute to the public’s understanding of government’s activities, and 3) they inform voters of how elected officials and public employees are conducting business on our behalf? Charging citizens a fee to access records gives public agencies the ability to construct toll booths along the information highway on route toward the truth. Many citizens would run out of money long before they reached their destination.
A representative government is dependent upon an informed electorate. Everyone is entitled to public information regarding the official acts and affairs of government. Providing citizens with such information is an essential government function and should be an integral part of the routine duties of public officers and employees. House Bill 606, which is currently being considered by the House of Representatives, makes it explicitly clear that nothing may be charged to inspect a governmental record. I urge everyone to support passage of this bill as it would insure that inspection of our records is freely available to all.
Second, there should be a record when all public boards meet. Public boards across the state continue to meet in complete secrecy. When boards meet with an attorney or negotiate with a union they don’t have to do any of the usual things for public meetings: they provide no public notice, the meeting is closed to the public, and no record is kept. At the very least, a basic record should exist that states a meeting took place to provide a paper trail while still respecting confidentiality. House Bill 1417 would have outlawed the veil of secrecy that surrounds these meetings, but the billed was killed in the House.
Third, improve enforcement of the law. A law is only as good as the enforcement mechanisms in place to insure compliance. The Right-to-Know law leaves it entirely up to individual citizens to enforce compliance, and this enforcement can be done only through the courts. For most citizens, filing a lawsuit in court is intimidating, time consuming, costly and represents a significant barrier to exercising their right to know. It’s a long, arduous, and financial struggle in which the citizen bears the sole burden, yet when a public official or public employee diminishes government transparency by violating the law we all lose.
Attempts over the last few years to establish an independent arbiter that would hear citizen complaints and mediate them outside of a courtroom have failed to pass the legislature. New Hampshire desperately needs an independent arbiter to free up the courts and help citizens enforce their right to know without indebting themselves in the process.
I call on all citizens, public officials, and legislators to work with Right to Know NH to put forth legislation that will bring the letter of the Right-to-Know law closer to the spirit of the law and help all citizens freely exercise their right of access to government meetings and records.
David Saad is President of Right to Know NH, a nonpartisan organization dedicated to improving adherence to and strengthening the Right-to-Know Law (RSA 91-A).
This article was also published in the Union Leader.
This blog post is one of several that will be published during Sunshine Week, highlighting the need for more government transparency.
The Center for Public Integrity, a 2014 winner of the Pulitzer Prize, evaluated New Hampshire’s Right-to-Know Law and that of all 50 states as part of the broader 2015 State Integrity Investigation. New Hampshire ranked 49th, only beating out Wyoming by 1 point for the worst score.
While the citizen’s right to access government records and meetings is enshrined in Part I Article 8 of the New Hampshire constitution and further defined in the Right-to-Know Law (RSA 91-A), the following shortcomings in the Law are the major reasons for New Hampshire receiving a Failing grade.
Lack of Access to Records
The Governor’s Office is excluded from the agencies subject to the Right-to-Know Law.
Even our elected representatives and senators who need timely and accurate information in order to faithfully execute their official responsibilities sometimes can’t get it. For example, the Governor refused to provide departmental spending reports to the Chair of the Senate Finance committee which limited their ability to provide proper budgetary oversight.
Also, a governmental agency can exempt private sector information from disclosure as the right-to-know law explicitly offers a broad exemption to confidential, commercial, or financial information. According to the report, there is evidence that government entities tend to invoke this clause when faced with requests for information relating to contracting and public service delivery, even though courts have sought to limit the exemption when it comes to information relating to these activities.
Public agencies have been inconsistent in how long they take to furnish records and the costs they impose. In 2015, a court found that the office of the state attorney general — which is responsible for providing guidance to all other government entities in abiding by the Right-to-Know Law, violated the law by not producing records in a timely manner. While agencies are, by law, allowed to charge requestors the “actual cost” of producing a copy, in practice agencies have imposed a wide range of copy fees up to $1 per page.
“Let the people know the facts and the country will be safe” – Abraham Lincoln
There is no government agency responsible for monitoring compliance nor enforcement of the Right-to-Know Law. When a citizen believes that a violation of the Right-to-Know has occurred they are on their own to fight for a resolution. Furthermore, the only option for enforcement is through the court system. Filing a lawsuit in court is intimidating, time consuming, and costly for all parties involved. For the average citizen, this represents a significant barrier to exercising their rights. It’s a long, arduous, and costly struggle which the individual citizen must endure even though, in most cases, all citizens are direct benefactors of one person’s lawsuit.
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.
To help address these shortcomings in the law, for the last several years Right to Know New Hampshire (RTKNH) has supported several bills for the establishment of a Right to Know (RTK) commission to review cases of denied access to public records or meetings so going to court would be the last resort instead of the only resort.
Establishing a RTK commission would help to level the playing field so that all citizens, regardless of their financial means, can exercise their rights to resolve their alleged RTK violations. This commission would reduce the costs and burden placed on the citizen resulting in greater public access and a streamlined resolution.
Unfortunately, each of these bills failed in the House including this year’s bill HB1413 which would have established a commission to study less costly alternatives than going to court.
RTKNH has worked to address many of the reasons why New Hampshire’s Right-to-Know Law received an F grade. We work with the state legislature to strengthen the RTK law, help citizens exercise their right to know, and provide helpful resources through our blog for anyone interested in this fundamental right.
This year, RTKNH authored 2 bills that passed through the House and are currently awaiting a vote by the Senate. House bills HB1418 requires public bodies to maintain more detailed minutes of nonpublic meetings. House Bill HB1419 requires that meeting minutes contain a record of each member’s vote for all actions. If passed by the Senate, both bills will provide greater government transparency.
“ I am sure the mass of citizens in these United States mean well, and I firmly believe they will always act well whenever they can obtain a right understanding of matters” – George Washington
To celebrate sunshine week, join Right to Know New Hampshire and help us shine more light on the workings of local, county, and state government throughout New Hampshire.
David Saad is president of Right to Know New Hampshire and can be emailed at email@example.com.
Right to Know New Hampshire has authored and submitted to the New Hampshire House of Representatives, three bills to bring the letter of the right to know law closer to the spirit of the law. These bills, which amend the Right-To-Know law (RSA 91-A), will help to increase public disclosure and improve government transparency.
House Bill 2016-H-2581 requires the content for nonpublic meeting minutes meet the same minimum standard as public meeting minutes. Historically, some public agencies have skirted the spirit of the right to know law by producing nonpublic minutes with less content than their public minutes counterparts. This bill will now require that both public and nonpublic minutes meet the same minimum content requirements including the names of members present, persons appearing before the governmental agency, a brief description of the subject discussed and all final decisions made. With few exceptions, the public has the right to know who attended and what transpired during a nonpublic meeting. This bill will increase your ability to exercise that right and to know the actions of your government.
House Bill 2016-H-2582 requires that when a vote is taken during a nonpublic meeting, the minutes of that meeting shall record all votes such that each member’s vote is recorded, so you, the voter, will know how your elected officials are representing you. The law is currently vague in regards to how votes are to be recorded during nonpublic sessions, allowing for the possibility that the exact voting record of each public official is not recorded. Since the public is excluded from nonpublic sessions, any degree of secrecy in the way that our government officials vote diminishes government transparency, and accountability. With this bill, the exact vote of each public official is required to be recorded in the meeting minutes.
House Bill 2016-H-2580 requires that when a quorum of the public body convenes for the specific purposes of strategy or negotiations related to collective bargaining or for consultation with legal counsel, a record of the meeting must be kept. The record only contains minimal information such as meeting place, date, time, and the people in attendance. Currently, the law does not require any record be kept of such meetings. Having no record of such meetings raises concerns among the public that our government is conducting business in secret. A simple record that a meeting took place does not jeopardize the privileged nature of these meetings, but does help to remove the veil of secrecy and provide a greater level of public disclosure and government transparency.
Government transparency is a not a partisan issue. It is a core value in a democracy and helps voters make informed decisions. Yet, when our state, counties, school districts, and municipal government agencies meet behind closed doors, government transparency becomes limited. While there are some legitimate reasons why these agencies may exclude the public from attending nonpublic meetings, these meetings should still be sufficiently documented to ensure a record is kept of all actions and discussions which occurred during nonpublic meetings. These three bills will help advance the greatest possible public access to the actions, discussions, and records of all public bodies.
Citizens have the right to access the documents and proceedings of their government.
Part I, Article 8 of The New Hampshire Constitution states that government should be open, accessible, accountable, and responsive. RSA 91-A, known as the Right-To-Know Law states “Openness in the conduct of public business is essential to a democratic society.” The purpose of the Right-To-Know Law “is to ensure the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” Government transparency is a prerequisite for government accountability.
Please help us protect our rights to an open and transparent government by contacting the House of Representatives Judiciary Committee
(email: HouseJudiciaryCommittee@leg.state.nh.us ), and asking them to support all three bills.
To learn more about how you can further help RTKNH improve our rights for an open and transparent government, email us at firstname.lastname@example.org
Chalk one up for the citizens of New Hampshire. The right of citizens of our state to know what their government is doing got one step stronger this year thanks to the efforts of Right to Know NH. Governor Hassan signed HB108 into law. This bill moves a key vote from private to public meetings, holding public officials more accountable. This is the first bill initiated by RTKNH that has been signed into law.
Prior to HB108, the Right-to-Know law was silent about where a public board could vote to seal minutes of a non-public meeting. Sealing the minutes keeps them private, locking up what happened at the private meeting. If the vote to seal is recorded in the sealed minutes, then how public officials voted is also hidden so there is no accountability. Some boards routinely take this vote in secret while others routinely do it in public. HB108 requires all public bodies to take this vote in public. Public bodies may still deliberate about whether to seal minutes in nonpublic sessions in case the details of the deliberation may improperly disclose confidential information. HB108 takes effect January 1, 2016.
HB108 was initiated by RTKNH and found bipartisan support from both Representatives and Senators. The bill was sponsored by Rep. Horrigan (D) of Strafford 6 and co-sponsored by Rep. Wall (D/R) and Rep. M. Smith (D), both of Strafford 6 as well as Sen. Boutin (R) of District 16. RTKNH greatly appreciates the work of these Representatives and Senators in support of the rights of citizens on this bill. RTKNH also appreciates the work of the House and Senate Judiciary Committees chaired by Rep. Rowe (R) of Hillsborough 22 and Sen. Carson (R) of District 14. Both the NHMA and the NHSBA supported HB108 as well saying it would answer a question many towns and school districts ask them about.
While HB108 is the first bill initiated by RTKNH to become law, it is not the first fight taken on by this group. HB108 originally also included language to enhance the contents of non-public meetings, but that was stricken by the House. This year we also initiated HB138 that would have ensured free access to inspect public records, but that was killed by the House as it was subsumed by HB606 and eventually re-referred to the Senate Judiciary Committee. It may come back up next year. In 2014, RTKNH sponsored 2 bills, HB1156 and HB1591. HB1156 included many changes to strengthen the law, but it was amended substantially by the House and killed by the Senate as we supported. HB1591 proposed a new commission to make it easier and cheaper to enforce the Right-to-Know law, but that was killed by the House. Especially buoyed by our first success, RTKNH will continue to work to strengthen the rights of New Hampshire citizens through more open government.
Founded in early 2013, Right to Know NH is a non-partisan citizens group promoting open government in New Hampshire. We advocate to strengthen NH state laws, particularly the Right-to-Know law known as RSA 91-A, as well as Right-to-Know policies at the local level. We educate citizens on their Right to Know and public officials on how they can provide greater access to their constituents. We serve as a resource on Right to Know in our state with the goal of making government better. RTKNH maintains a blog at righttoknownh.wordpress.com with practical information about the Right to Know in our state and can be contacted directly through our blog or at email@example.com. As a citizen group, we invite new members interested in protecting and enhancing open government.
To: Honorable Members of the House Judiciary Committee
Re: SB 243
My name is David Saad. I live in Rumney NH and for the last 3 years I have served on the Rumney Planning Board.
I ask you to oppose SB 243 which makes changes to the right-to-know law section RSA 91A:3.
RSA 91-A Preamble states: “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.”
Often, the most important issues to citizens and taxpayers are also the most controversial and divisive. At times, the citizens and taxpayers may be at odds with their elected officials. This democratic process plays itself out during open and transparent public meetings.
However, SB 243 jeopardizes this openness and accountability to the people because this bill would allow any single member of the public body to draft a letter simply stating that they have a claim or threaten litigation against a citizen/taxpayer and effectively, that single member of the public body can now require that all future discussions regarding that topic be done in a nonpublic session, even if that single member has no intention of ever filing any claim. Thus, a single member of the public body can force discussion of any controversial topic into nonpublic session as long as they are willing to make a claim and put it in writing.
For example, if a taxpayer feel that municipal funds are being misspent and publicly criticizes a public official for misappropriation of funds, the official can now draft a letter threatening to sue the taxpayer because of their public criticism and effectively squelch any further discussion of the misappropriation of funds issue during public meetings. Thus, a pen and piece of paper is all that is needed to subvert the public’s right to know.
SB 243 lets public officials with something to hide do just that.
Please uphold the spirit of RSA 91-A and insure the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people by opposing this bill.