N.H. Gets a Failing Grade for Public Access
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. In the Category of Public Access to Information, New Hampshire earned a grade of F, and ranked 49th out of 50 states coming in a mere one point ahead of Wyoming which holds the worst score.
Overall, New Hampshire earned a grade of D- and ranked 34th among the 50 states. New Hampshire’s score was 61, a drop from 66 in the 2012 study, though the study has changed between the years. But, it is the score on access to information that is particularly troubling, as noted by an article on New Hampshire:
New Hampshire also scored poorly on “access to information.” The right of citizens to access government records and meetings is enshrined in the state constitution and is clearly defined in Chapter 91-A, commonly known as the “right to know” law. But in practice, this right is circumscribed both by legal exemptions (the governor’s office is not subject to the law), and the lack of any formal mechanism for appealing when agencies rebuff information requests. In such cases, a citizen’s only recourse is the court system. And the bar for recovering attorney fees and other costs is dauntingly high — only when an agency “knew or should have known” that materials were wrongfully withheld.
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. The following three ideas for legislative changes 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.
Legislative Update: HB606 which is effective 6/21/2016 states “No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
Second, 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.
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.
While attempts to establish an independent arbiter that would hear citizen complaints and resolve them outside of a courtroom failed to pass the legislature in the past, RTKNH was successful in getting HB 178 passed in 2017 which established a study commission to investigate ways to resolve RTK grievances. In 2018, SB 555 has been introduced which will establish an ombudsman to resolve RTK complaints.
Third, increase government transparency.
There should be a record whenever a public body meets. 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.
All too often, public bodies are allowed to seal minutes and keep those minutes sealed for indefinite periods. More limitations are required to reduce the sealing of minutes.
Right to Know NH calls 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.