40 years fighting for our right to know

THIS BLOG POST IS A GUEST EDITORIAL.  

Author: Harriet E. Cady

I am writing this in response to Sunshine Week in NH and the country.  As we have just had town and school meetings in the majority of towns I am well aware of information withheld from the voters.

As a citizen who has won some and lost some right to know cases, my skin had to thicken because of the personal attacks you take in order to make the public officials obey the law.  The oath they take appears to mean nothing to many elected officials but rather their idea of what is right or even what they think is right taking precedence over citizen’s rights or the laws.

In 1974 I took my school board to court for violating the Right-to-Know law because they refused to give my Learning Disabled son an IEP behind closed doors.  I was shaking in my high heels to think I was having to talk with and answer the Judge’s questions, refute the school’s attorney, who I must say wasn’t able to do much against the minutes they kept which proved my case.  Just had to have the Judge review their non public minutes and show the letter they had the Superintendent send to me.

But now for the most heart breaking part, the public officials who have with a vengeance attack any citizen who dares to take them to court for violating their oath.  The lies they tell the community about you as a person and how you have “Cost” the towns taxpayers so much in legal fees and most citizens don’t even ask officials the question “if you obeyed the law would the citizen have taken you to court?”

Although RSA 91-A protects citizens Right to Know it is left to the citizen and newspapers to enforce the law.  There is nothing to stop the lies the leadership in the community will tell people what a bad person you are and since they are elected leaders, most often they are believed without question.

So what do we do? Are we the only ones to enforce the law?  Do we let them violate it until something really bad happens?  How about a person who commits suicide after being made to look horrible for asking questions of the officials at their meetings? Is the loss of his life enough?

Unfortunately I don’t have an answer for how many people have suffered the tales told by elected officials who don’t like being sued under the Right-to-Know Law.  However, I do know the people who avoid me for daring to enforce my rights and who have listened to false tales about how I have cost the taxpayers $500,000.  Actual costs have been nearer $50,000 for the lawyer who defended the town in the 6 cases of which I won 4.

Not once have I heard anyone say back, “Well if they broke the law how could she make them obey the law other than going to court?”  Will we ever get an Attorney General who can enforce our right to know when a citizen brings proof of violations?  Why does the Attorney General’s office have a division of Public Integrity if not to make elected officials obey the state’s statutes?  Once again, a business owner who dared to post the truth about our right to know has seen retaliation by people stating others shouldn’t do business with her.  So even though 40 years ago the Office of Civil rights found the school violated my son’s educational rights, and the court found they violated the Right-to-Know law, officials are still not obeying the Right-to-Know law and the person who stood up for her rights has become a victim with attacks on her business.  Guess that will fix us who dare to question those who ask to be elected by us so they can serve and who take an oath to uphold the laws of the state of NH and the NH and US Constitution.   First we must pay the taxes for the lawyer to defend them and then take the communities condemnation for daring to make an elected official do that which they took an oath to do!   How dare we ask them to obey the law and adhere to what they swore to do!

Harriet Cady is a founding member of Right to Know New Hampshire and a resident of Deerfield.  She can be emailed at righttoknownh@gmail.com

Sunshine Week enthusiasm grows

Last week citizens across the country and New Hampshire took part in Sunshine Week by celebrating their rights to an open government.

Sunshine Week has ended but enthusiasm for a more open and transparent government continues.

During Sunshine Week, Right to Know NH (RTKNH) participated in the following events and radio broadcasts:

EVENTS:

Training and panel discussion on the Right-to-Know Law organized by the New England First Amendment Coalition and hosted by the Nackey S. Loeb School of Communications and held in Manchester.

 

Training and workshop on the Right-to-Know Law organized by the Nashua Telegraph and InDepthNH.org and held in Nashua.  More details here.

RADIO:

NH public radio:  N.H. Needs Independent Arbiter To Hear Complaints

Girard at-Large:  David Saad on Right to Know NH

RTKNH looks forward to taking part in Sunshine Week again next year and encourages all members of the public who are interested in open government to attend future sunshine week events.  In the meantime, join RTKNH and help us advocate for a more open and transparent government.

Our right to know what our government is doing lasts only as long as our vigilance to insist on it. For RTKNH every week is Sunshine week.  Let the sun shine!

 

 

Letter to newly elected public officials

To improve compliance with the Right-to-Know law (RSA 91-A), all newly elected officials should receive information on the Right-to-Know law to educate them on their responsibilities to insure an open and transparent government.

After town elections, Todd Selig, administrator for the town of Durham NH, informs all town council members about the Right-to-Know Law.   His letter below, serves as one example of how officials can proactively educate other officials to improve compliance with the Right-to-Know law.

Letter sent to officials:

Dear Members of the Council and Soon to Be Members of the Council,

I annually send this introductory email to the new Council with a little bit of information concerning email and public meeting protocol in light of the Right-to-Know law (RSA 91-A).

Public Meetings

RSA 91-A requires that all public meetings are open to the public with very few exceptions. A public meeting, even those that are non-public, must be posted in advance so that the public is aware that the public’s board is planning to meet, where it will be meeting, and a general sense of what will be discussed. This allows members of the public to attend the meeting if they desire to listen to or observe the proceedings.  Town Council meetings must by Town Charter be posted 48 hours in advance of a meeting.  All other boards, committees, and commissions must provide for 24 hours posting.

What is a Meeting? 

It is the convening of a quorum (or in the case of the Durham Town Council a majority for the purpose of the Right-to-Know law) of a public body, “whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate contemporaneously,” for the purpose of discussing or acting upon any public business. RSA 91A:2, I.  This includes work sessions.

What is NOT a Meeting?

The law makes it clear that certain gatherings of public officials are not meetings subject to the Right to Know law (see RSA 91-A:2, I). They include:

  • Chance, social, or other encounters “not convened for the purpose of discussing or acting upon . . . matters [relating to official business] if no decisions are made regarding such matters”
  • Strategy or negotiations relating to collective bargaining
  • Consultation with legal counsel

Email Communications

In Durham we have adopted a very open policy with respect to public access to communications. To this end, it is important for you to know that emails that you send to the Town Office will be made available for public inspection upon public request. In addition, ALL emails that I send to one member of the Council, unless they are of a purely personal nature with no local government significance (such as illness, family matters, etc.), are copied to all other members of the Council. This keeps everyone on the same page with the same information.

In addition, ALL email communication that I send to the Council is also copied to Jennie Berry and placed into a file for public and media inspection. Informational emails that you send to me (without also copying the full Council) are not placed in the public binder unless I specifically respond to them ­although they could be requested by a member of the public at any time.  To fully comply with changes to the Right to Know law made in 2008, any emails sent to me in which all or a majority of Councilors are also copied will be placed in our public folder.  If for some reason an email circulates among a majority or the full Council in which I am not copied, please take it upon yourself to ensure we receive a copy of that transmittal for placement in the public folder.

Please know that anything you put in an email and send to the Town could potentially show up the next day in Foster’s, the Union Leader, or any other media publication if a local reporter was to visit, call, or email the Town Hall and request a copy which does sometimes happen.  Residents, developers, and local businesses also request copies of email streams from time to time and these are subject to public disclosure unless the subject is specifically exempted by the Right-to-Know law (i.e., legal correspondence, personnel information, etc). 

In this day and age of lightning-speed email, Facebook, and other on-line communication — great concern has existed as to whether ongoing and deliberate two-way communication between a majority of members of the Council does in fact constitute a public meeting — and an illegal one that has not been posted at that. In Durham, we have historically taken the position that such electronic communication does constitute a public meeting. Changes to the Right to Know law in 2008 are consistent with Durham’s historical interpretation.

Communications Outside a Meeting

RSA 91-A:2-a, limits the use of communications outside a public meeting held in compliance with the law.

  • No deliberations outside a public meeting.Public bodies may deliberate on matters of official business “only in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III” ­ (i.e., only in properly noticed public meetings).  This does not mean that any mention of a matter of official business outside a public meeting is illegal; however, it is illegal for the body to deliberate on such a matter outside a meeting – i.e., to discuss the matter with a view toward making a decision.  This includes discussions by email and other electronic means!  The intent of the law is that such matters should be deliberated in public.
  • No circumvention of the spirit or purpose of the law.  Communications outside a meeting, “including, but not limited to, sequential communications among members of a public body,” shall not be used “to circumvent the spirit and purpose of this chapter.”  This is intended primarily to prevent public bodies from skirting the “meeting” definition by deliberating or deciding matters via a series of communications, none of which alone involves a quorum of the public body, but which in aggregate include a quorum.

To ensure that the Council does not inadvertently have any illegal meetings, we have opted over the last several years to keep two-way email and electronic communication between all Councilors to a minimum. I have tried to craft a few concrete examples to illustrate this situation more clearly below.

Example #1: Examples of Problematic Email Communication between Councilors:

Councilor 1: Is there consensus that the Town should purchase land parcel XYZ for a price of $1,000,000?

Councilor 2: Absolutely.

Councilor 3: Yes.

Councilor 4: Full speed ahead!

Councilor 5: Go.

Councilor 6: Buy it now while the getting is good!

Councilor 7: I vote yes.

Councilor 8: I vote yes.

Clearly, a trend is evolving in which a majority of members of the Council are one by one lending support to a decision — but without the public’s knowledge that a discussion is taking place. This type of email interaction would be a violation of state law.  The discussion should take place at a public meeting.

Example #2. Examples of Problematic Email Communication between Administrator and Council:

Administrator: What does everyone think about developing an ordinance that prohibits pink colored houses in Durham?

Councilor 1: Great Idea.

Councilor 2: I hate pink. Good going. Long overdue.

Councilor 3: As long as my house is grandfathered!

Councilor 4: Super.

Councilor 5: As soon as possible this reform is needed.

Again, public business is being conducted and “discussed” electronically without the public’s knowledge. This would be a problem. The topic would be more appropriately discussed at a public meeting of the Council.

Example 3: Example of Appropriate Communication between Administrator and Council:

Administrator: I am planning to take action XYZ that is within the Administrator’s authority per Charter and wanted to let the Council know of the pending action so that if there are any concerns, these can be brought to my attention in a timely way.

Councilor 1: I have a concern.

Administrator: Thank you for expressing your concern. We will schedule this for discussion at the next public meeting of the Council.

Example 4: Example of Appropriate Communication between Councilors:

Councilor 1 to All Councilors: Madam Chairperson. I want to schedule a discussion for the next meeting dealing with topic Y because it is very important  for a variety of reasons impacting our community.

Chairman: We will put topic Y on the agenda for the next meeting so that all Councilors may weigh in on the subject and so that the public will be informed of the issue. Thank you for the suggestion.

Please do not hesitate to contact me if you have further questions in regard to Right-to-Know law issues.

Todd

 

Training on RTK law now available

Right to Know New Hampshire (RTKNH) has put together a presentation on the Right-to-Know law.  This is a comprehensive review of the Right-to-Know law and covers governmental records, minutes, public and nonpublic meetings, and violations.

RTKNH is available to provide a right to know training class to your group.  The training class includes our presentation on the Right-to-Know Law.  To schedule our training class for your organization or citizen’s group, contact us.  To contact us, please click ‘Send us a message’ on the right side of this page.

Additional training materials can be found on our blog under the Training menu option.

Right to Know – a public official’s perspective

We wrap up Sunshine week with a guest editorial from Todd Selig, administrator for the town of Durham NH.  Mr. Selig took part in the Sunshine Week panel discussion at the Nackey Loeb Center last monday.  He made these comments to those in attendance.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” – Declaration of Independence July 4, 1776.

The Declaration continues with a long list of grievances against the King …

“He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.”

This is clearly the nexus of the Right to Know Law, the rules surrounding meetings and public records.

“He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.” 

An illustration of why public wages and benefits are available for public disclosure!

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

I am probably one of the few “swarms of Officers” presently in a position to harass our people, at least in Durham, but in all honesty, the work I do, and the the work our local elected and appointed officials undertake, is typically not intended to “eat out people’s substance,” but rather to serve our communities, our cemetery trustees, our parks & recreation commissions, our county, or our state, and a long list of other boards, committees, and commissions from 234 towns and cities across NH.

But how do we know that?  How do we know that our officials are in fact doing the public’s business?  The answer lies in the Right-to-Know Law, a statutory framework that ensures that what government does, and more precisely what our government officials do, is done in public, in the light of day, for all to see and understand.

I would argue that the vast majority of elected and appointed officials get involved with government because they care, they want to make a positive difference, and they want to serve their communities in useful ways.

So we have two juxtaposing concepts in play here.  On one hand, we have people getting involved to largely do what they perceive to be good for community.  On the other, we want to ensure that the work those individuals are doing is ultimately accountable to the very people they serve.

The thread that holds this together in balance is RSA 91-A, the Right-to-Know Law.

So some practical thoughts in light of the above:

  1. It has been my experience that most people who get involved in government at the local level have little understanding of the Right-to-Know Law.  They often in fact come from the private sector where information is viewed as proprietary, rather than public.  Operating in public is not necessarily native to them — and it may in fact feel threatening.  What if people don’t like my ideas?  What if I say something that upsets my neighbors?  Wouldn’t working things out in private behind closed doors be a lot easier and more comfortable?  These folks need education, constant reminders, and guidance in terms of understanding and following the laws they have sworn to uphold.  It’s a constant educational process and we all play a part in making sure these well-meaning individuals receive the guidance they need.
  2. Most of the time, if you want information, just ask for it.  Talk with the person who you believe has information and let them know what you are looking for.  This may save you and them a lot of time, effort, and aggravation.
  3. Don’t automatically assume the official you are working with is corrupt, dishonest, or immoral.  Most officials really intend to do well, and when they receive an RSA 91-A request, it is intimidating for them, and not only for you!
  4. It may very well be wrong to conclude that officials who fail to properly post a meeting, make minutes available, or who are engaging in illegal communication outside of a public meeting are knowingly doing so.  Nine out of ten times, I find that it is because the officials are improperly educated in the laws, or were never educated concerning them.
  5. When you do find an RSA 91-A violation, make it plain to those involved.  Hold them accountable, but do so with dignity and respect. Make it a learning moment for all involved!   We want to encourage participation by citizens, not discourage it by making the process so threatening that only special interests — whatever those might be — become involved.
  6. Only when the officials involved warrant being treated as untrustworthy, should you conclude that they are.  And if you do so conclude, RSA 91-A gives some very good ammunition to hold those persons accountable.

In closing, Robert Frost once wrote, “Good fences make good neighbors.”  RSA 91-a is the vehicle we have crafted to keep the proverbial barbarians of secrecy, collusion, personal gain, and general bad behavior at the gate to ensure governmental officials remain accountable to those they serve.

Todd Selig can be reached at tselig@ci.durham.nh.us

A Citizen’s First Step towards Government Accountability

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THIS BLOG POST IS ONE OF SEVERAL GUEST EDITORIALS THAT WILL BE PUBLISHED DURING SUNSHINE WEEK, HIGHLIGHTING THE NEED FOR MORE GOVERNMENT TRANSPARENCY.  

Author: Patricia Rodrigues

In 2013, NHDOT allowed historic 1848 easement rights in my property deed to be incorrectly utilized and documented in 2 contracts it has with a private family corporation, to improperly access public lands abutting my property – the Historic Cheshire Rail Trail -and this was done without my knowledge nor input and neither the public’s.

Since that time, in my attempts to find out, after-the-fact, how this had happened, and how it can be considered legal, I have filed numerous right to know requests with NHDOT, NHDES, and the towns of Westmoreland and Walpole. Sometimes these various government agencies have fully complied with my right to know requests, but mostly, they have not.

NHDOT has, after being requested three times over 2.5 years, to supply critical documents missing from these contracts concerning my private property and the abutting public property, simply stated they “cannot locate the documents”. In the spring of 2016 NHDOT performed a survey which proves the incorrect representation of my property deed’s 1848 easement rights – even with the documents which are not missing from the contracts.

After paying many thousands of dollars to attorneys since 2013 to pursue other various legal avenues, I have no further resources to take the state of NH to court to produce the missing documents requested via right to know – but they are the final key to further proving that the contracts signed by the state are fraudulent.  This proof would be in addition to other false representations which are already documented and proven within the contracts, as stated above.

The right-to-know law should be the “poor man’s” mechanism to obtaining what should be freely available documents.  These documents and evidence proving government impropriety is only the first step – because then you have to make the government acknowledge what the obtained information shows and, apparently, the truth from right to know obtained information is ignored, and there still is no accountability.

That said, passage of HB 178, which would form a commission to study alternate methods to reduce the burden and costs for ‘ordinary’ citizens like myself, to utilize, besides the only currently available and expensive step of filing in court to make governmental bodies comply with right to know laws, is a critical first step for governmental accountability. Citizens could then save their financial resources for hiring an attorney to fight for citizens’ property and other rights.

To read more information about my case, and to defend all NH citizen’s constitutional rights to defense of property, and all the public’s rights in public lands, and its heritage, please see Facebook pages ‘Cheshire Rail Trail – Keene To Connecticut River’ and ‘CT River-Cheshire Rail Trail’, which include the online petition found at the following link – http://www.thepetitionsite.com/takeaction/314/876/815/

As this matter involves the improper use of public lands – The Historic Cheshire Rail Trail – I ask all citizens to contact me to learn how you can help me resolve this injustice and abuse of our public lands, as we all have a right to know.

Patricia Rodriques is a member of Right to Know New Hampshire and resident of Westmoreland.  She can be emailed at patrodgoog@gmail.com

NH Ballots Should Not Be Exempt from Public Records Law

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THIS BLOG POST IS ONE OF SEVERAL GUEST EDITORIALS THAT WILL BE PUBLISHED DURING SUNSHINE WEEK, HIGHLIGHTING THE NEED FOR MORE GOVERNMENT TRANSPARENCY.  

Author: Deborah Sumner

 

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Chief Justice Warren Burger, Richmond Newspapers, Inc. v. VA, 448 U.S. 555, 572 (1980)

The legislature specifically exempted voted ballots from RSA 91-A in 2003. Repeal attempts in 2007, 2012 and 2014 failed.

Ballots (or ballot images) should be accessible for public review after election results are certified as they are in other states, including Florida, Ohio, Michigan, Texas, Vermont, Wisconsin, Wyoming, New York and Colorado. Stripped of this essential right and duty to KNOW our government was legitimately elected, we cannot claim to be a self-governing people.

Some relevant facts:

  1. The NH Constitution and RSA 659:63 mandate that “The Counting of Votes Shall be Public…” Government has a legal duty to protect our public oversight right and cannot interfere with our duty to do so.
  1. AccukVote computers, programmed and serviced by a private corporation, are  vulnerable to both intentional and unintentional error. They now potentially “count” 87.5% of all NH votes with NO public oversight.
  1. Federal law requires 22-month retention for ballots that include federal contests, with the clear intent SOMEONE might actually want to LOOK at them before they are destroyed.

As a pro se litigant, I expected the court would consider these facts and agree that the public’s right of access to voted ballots to ensure government’s legitimacy was more compelling than the attorney general’s argument. I was surprised that the Cheshire Superior Court judge disagreed and shocked when all five members of the NH Supreme Court did!

The court considered only these facts. 1) The legislature (as a co-equal branch of government) exempted ballots so this was a “political” decision, not one for the court to over rule 2) current law required public vote counts. Therefore, it said, the public had an alternative means to ensure transparent elections and public accountability.

Ironically, legislative history shows NO public discussion of why the legislature exempted ballots in 2003. The process violated the principle of openness and public accountability RSA 91-A aims to protect. But that didn’t matter to the court, either.

https://www.facebook.com/ProtectTheCount.NH/posts/1481443001900607

This problem now comes back to the court of public opinion and legislature to solve.

Here’s the basis of it:

For most people most of the time, exemptions specified in RSA 91-A:5 seem reasonable enough. If a citizen disagrees, the court can consider the arguments dealing with specific documents and decide. The government must show its interest in secrecy outweighs the public’s interest in disclosure.

But, under RSA 91-A:4, the legislature applies NO standard to  the “except as otherwise prohibited by statute…” section.

To correct this, any legislative exemption from public records should meet the same “strict scrutiny” standard the court applies when laws infringe on fundamental free speech, voting and self government rights.

To survive that analysis, any exemption must “be justified by a compelling governmental interest and must be necessary to the accomplishment of its legitimate purpose.” Akins v. Secretary of State, 154 N.H. 67 (2006)

Does the government’s interest in keeping the “facts” of our election secret outweigh the public’s interest in knowing reported results are accurate? Is it more compelling  than our right to free, fair elections and self-government? No, of course not.

State officials should work with informed citizens and town officials to develop reasonable guidelines for ballot review. The repeal can allow reimbursement of local costs through the state’s election fund (RSA 5:6-d).

The inalienable right of voters to determine the accuracy of official reporting through open inspection dates back to 1703 English Common Law.

“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it,,,,” Ashby v. White 92 Eng Rep 126 (KB 1703)

Same battle, different day.

It’s time to move NH ballots from the “government secrets” category into the sunlight. We need to restore public oversight of our public elections and show the world that New Hampshire remains true to the vision of our founders as expressed in Part 1, Article 8 of our state constitution. We are a self-governing people; our elections and public officials are at all times accountable to us.

Deborah Sumner is a member of Right to Know New Hampshire and resident of Jaffrey.  She can be emailed at righttoknownh@gmail.com