Sunshine Week Panel March 11, 2019

Sunshine Week features New Hampshire Right-to-Know discussion

MANCHESTER — In recognition of Sunshine Week, a national initiative to promote open government, the Nackey S. Loeb School of Communications and New England First Amendment Coalition will present a discussion concerning the key to open government in New Hampshire — the state Right to Know Law.  

The panel discussion will be held at the Loeb School, 749 East Industrial Park Drive, Manchester, on March 11 from 6:30 to 8:00 p.m. It is free of charge and open to all.

Panelists include:

  • The Honorable N. William Delker, Associate Justice, New Hampshire Superior Court.
  • Lisa English, Assistant N.H. Attorney General, Chief of the Civil Division.
  • Gilles Bissonette, Legal Director, American Civil Liberties Union, New Hampshire.
  • Steven A. Bolton, Corporation Counsel, City of Nashua.
  • Mark Hayward, Investigative Reporter, New Hampshire Union Leader.
  • David Taylor, Vice President, Right to Know New Hampshire.

The discussion will be moderated by First Amendment attorney Gregory V. Sullivan, a board member of both sponsoring organizations and corporate counsel to the Union Leader Corp.

Sunshine Week is a national celebration of the citizen’s right to know what their government is up to. Its goal is to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.

Contact:
Nackey S. Loeb School of Communications
David Tirrell-Wysocki
dtwysocki@loebschool.org
603.627.0005

NEFAC
Justin Silverman
mail@nefirstamendment.org
508.983.6006

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RTKNH meeting Saturday 2/16 @ 9 a.m

Right to Know NH will meet on Saturday, February 16, 2019 at 9:00 A.M. in Concord, NH at 8 North Main Street in the office of the Coalition of New Hampshire Taxpayers. We will discuss Right to Know (RSA 91-A) bills which have been submitted for the upcoming 2019 legislative session. The public is welcome to join us.

SB 313 to create Ombudsman to resolve Right to Know complaints

The Right to Know Law is meant to provide transparency and accountability in our government, but citizens often run into roadblocks attempting to get public bodies and agencies to live up to the letter and spirit of the law.

RTKNH receives citizen complaints from across the state as we are a resource people turn to when they feel their public officials are not lawfully responding to their right to know requests. In 2018, we received 68 inquiries.  This was a 15% increase over 2017.

In 2015, the Center for Public Integrity, winner of the Pulitzer Prize, evaluated the freedom of information laws of all 50 states as part of its State Integrity Investigation.  In the Category of Public Access to Information, New Hampshire earned a grade of F, and ranked 49th out of 50 states. In the category titled “In practice, citizens can resolve appeals to access to information requests within a reasonable time period and cost,” New Hampshire received a score of 0.

Those findings summarized what many Right to Know advocates already knew.  In NH, the burden to resolve Right to Know complaints is very high for citizens because one has to file a petition in Superior Court.

Senate Bill 313 was created based on the recommendations of the 13 member Legislative Right-to-Know Study Commission created by the passage of HB 178 in 2017.

After 2 months of meetings, a cross representation of stakeholders, including the NHMA, unanimously agreed that citizens need a grievance resolution process which is easier, cheaper, faster and results in less cost for all parties.  Establishing an independent Ombudsman and a Citizens’ Right-to-Know Appeals Commission was the unanimous recommendation after considering a number of alternatives.

While there is a cost to hiring the Ombudsman there will be considerable savings to offset the costs to taxpayers. By avoiding litigation, public bodies and agencies will often be spared court costs and attorney fees. In the court case of Porter v. Town of Sandwich, the town paid more than $200,000 in attorney fees.  The town of Tuftonboro paid over $20,000 in legal fees and lost their Right-to-Know lawsuit.  Last year, several State Representatives were forced to file a lawsuit against the Coakley Landfill Group because that group failed to provide documents requested under the Right-to-Know Law.  Again, tax dollars were spent on legal fees to resolve this complaint.

While the Ombudsman will resolve the complaints, the Appeals Commission will serve a critical role which includes establishing policies and procedures for the Appeals process and educating interested parties on the Right-to-Know Law to increase awareness, compliance, and minimize future violations.  The Commission will also compile statistics and make recommendations to the legislature concerning proposed changes to the law.

Please contact your legislators and ask them to support SB 313 which creates a low cost, speedy, credible, and impartial grievance resolution process for citizens and public bodies.

HB 153 will make some police disciplinary records public

RTKNH testified in support of HB 153  which will make some police disciplinary records public when the officer has discharged his weapon, or was found guilty of sexual assault or dishonesty which includes perjury, false statements, filing false reports, and  destruction/falsifying/concealing evidence.

Below is the testimony by David Saad, President RTKNH provided to the House Judiciary Committee on January 23rd.

Part I, Article 8 of the New Hampshire Constitution and the Right-to-Know law are the fundamental prerequisites for a self-governing people. As the legislature made clear in the preamble to the Right-to-Know law: “Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.” The Right-to-Know Law helps further our State Constitutional requirement that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”

The determination of whether certain records should be exempt often comes down to a balance between privacy interests and a public’s interest in disclosure.  The courts use the following 3 steps to evaluate whether disclosure constitutes an invasion of privacy:

  • Is there a privacy interest at stake that would be invaded by the disclosure?
  • Would disclosure inform the public about the conduct and activities of its government?
  • Balance the public interest in disclosure against the government’s interest in non-disclosure and the individual’s privacy interest in non-disclosure.

Police officers should not have a privacy interest with respect to their official conduct.

When it comes to the behavior of the police in their official capacity, especially when it concerns misconduct, there is no privacy or confidentiality interest in nondisclosure. Police officers perform vital functions on behalf of the public, and their misconduct creates the potential for considerable social harm.  Police officers are trusted with one of the most basic and necessary functions of civilized society, securing and preserving public safety.

Disclosure of police misconduct is in the public interest.  Per RSA 651-B:1, if an officer is found guilty of sexual assault as defined in RSA 632-A, he could be required to register as a sexual offender because “the protection of the public would be furthered”.  Shouldn’t their disciplinary records be public for the same reason?

Police, by the nature of their duties and power, must be held to a higher standard.  That higher standard must include transparency regarding their misconduct.  Their conduct must be open to public scrutiny to allow for adequate checks and balances to insure bad behavior cannot hide behind a veil of secrecy, erode the public’s trust, or bring harm to those they swear to protect.

HB 286 insures there will be no charges to inspect records

RTKNH testified in support of HB 286  which will change the Right-to-Know Law to insure records can be inspected at no cost.

Below is the testimony by David Saad, President RTKNH provided to the House Judiciary Committee on January 23rd.

In 2015, 3 bills (HB 138, HB 656, and HB 606) were introduced.  HB 138 stated “No fee shall be charged to make a governmental record available for inspection.”  HB 656 stated “No fee shall be charged to view public records either in-house or online.”

As stated in the House Record (HC19):

Rep. Michael J. Sylvia for the Majority of Judiciary. The people’s right to access governmental records is an important function of RSA 91-A. Maintaining transparency of government is one of our constitutional duties. HB 606 incorporates similar concepts which were presented in three bills all addressing access to governmental records under RSA 91-A:4 IV; HB 606, HB 138 and HB 656. All three sought to make clear that there should be no fee charged for the inspection of records made available under 91-A. HB 606 as amended, also includes access to online records without a charge.

The final result was HB 606 which stated “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form”.

The goal of this bill was to “prohibit a public body or agency from charging a fee for making a governmental record available for inspection or from charging a fee for inspection of such record.”

After several lawsuits which tested this new language, the courts have ruled that costs can be charged even when someone only wants to inspect a record.  In Taylor v. SAU 55 and Salcetti v. Keene, if an electronic record is transferred internally within an agency to make the record available for inspection, a charge is allowed because that scenario falls outside the definition of “delivery without copying”.

Also, when a paper or electronic record requires redaction, often public bodies will redact a paper copy of the record and charge copy costs to make the redacted version available for inspection.

This bill adds language to achieve the original goal of HB 606 which is that when a person only wishes to inspect a record, that record, in whatever format it may exist, after any lawful redactions have taken place, will be made available for inspection at no cost or fee.

Please make it perfectly clear that citizens shall not have to pay to inspection a governmental record.

 

 

HB 396 will require citing specific exemption when records are denied

RTKNH testified in support of HB 396  which will change the Right-to-Know Law and require citing the specific exemption when record requests are denied.

Below is the testimony by David Saad, President RTKNH provided to the House Judiciary Committee on January 23rd.

RTKNH receives citizen inquiries from across the state as we are a resource people turn to when they feel their public officials are not lawfully responding to their right to know requests.

In 2018, we received 68 inquiries.  This was a 15% increase over 2017.  An overwhelming majority of these inquiries are the result of record requests which are denied or delayed.  In many of these instances, the public officials do not provide an adequate explanation for the denial or delay.  Without an adequate explanation, citizens feel their record requests are being stonewalled, they are unable to exercise their right to know, and they lose trust in their government.

The existing law does state that when record requests are denied, the denial must be “in writing with reasons”, however, this language is too vague.  Often, public officials simply state that the records are exempt from disclosure and provide no further explanation.

Without a statement of the specific exemption relied upon for the denial, the citizen has little confidence that the public official has completed the necessary due diligence to identify the lawful exemption for each record withheld from disclosure.

Article 8, Part 1 of the NH Constitution states that our government is “at all times accountable to” the people.  Being accountable should include providing a sufficient and lawful explanation when information is being withheld from the people.

 

 

 

 

NH Right to Know Articles of Interest