It’s become a perennial proposal by open-government advocates: the creation of an independent arbiter to settle records disputes between citizens and towns – an alternative to the court system. And so far, its demise has been equally predictable.
In 2015 a bill to create a “grievance commission” to settle disputes was slammed in committee and killed in the House by unanimous consent. A 2014 bill suffered a similar fate. Meanwhile, an effort to create a study commission on the matter squeaked through in 2017, but only after failing in 2016.
This year could be different. On Thursday of Sunshine Week, the Senate passed SB 555, which would establish an appeals commission available to residents who think their record requests were wrongfully rejected, and an ombudsman to oversee it all.
The bill, which came out of a recommendation by last year’s commission, would let the public choose between the present Superior Court approach – faster but often costly – and a slower approach. Senators passed it, 13-11.
Sen. Bob Giuda, R-Warren, who chaired the commission, said it was an important measure to allow disputes over records to be resolved without the complainants having to face prohibitive legal costs to do it.
“What this bill does is level the playing field,” he said. “It will also save communities significant amounts of money because they won’t have to get lawyers themselves.”
The vote was hardly unanimous. Sen. John Reagan, R-Deerfield, joined the entire Democratic caucus in opposing the move. Democrats said the proposed system, which includes a 16-member dispute board sourced from every county, is costly to the state and burdensome.
And unnecessary, added Sen. Dan Feltes, D-Concord, who said the present court-centric system works fine. “If it ain’t broke, don’t fix it,” he said on Thursday.
But evidence suggests that there could be a lot
broken, Giuda and others say. Transparency advocates point to towns like Sandwich and Tuftonboro and the
Timberlane Regional School District, which have spent tens of thousands of dollars in taxpayer-funded legal fees to fight the release of information. Those fees could have been prevented with
an initial arbitration process, said David Saad, president
of New Hampshire Right
to Know, an advocacy
group.
“The goal here is that for every government agency that maybe warrants going directly to court, nine out of 10 they’re going to see the ombudsman as a faster, easier, cheaper process,” Saad said.
Of course, nothing is to prevent towns from digging in and lawyering up through the dispute resolution process – and all disputes that aren’t resolved by the commission will end up in court anyway. Still, Saad says the process could head off unnecessary standoffs that could be driven by the parties’ unfamiliarity with the law.
Despite the concerns, the Senate’s approval is its own milestone: all other recent attempts have died in the House. As the bill heads to the bigger chamber, right-to-know champions say they’re feeling optimistic.
“It definitely is not a slam dunk by any stretch,” said Saad. But, he added: “The trend generally has been favorable.”
Meanwhile, the Legislature has seen a host of right-to-know reform bills churn through hearings and floor votes this year, many with extensive histories of their own. Some proposals are racking up support. Others are more of a mixed bag. Here’s a rundown:
HB 1579: Passed by the House on Thursday, 168-161, this bill would require public bodies holding “non-meeting” meetings – those exempt from the full right-to-know law – to nonetheless provide three basic details to the public: when the meetings were held, how long they lasted and who was present. Proponents said it would alert the public to closed-door proceedings such job interviews, allowing them to press the officials on the meetings later. Critics on the floor said it would only create confusion, letting people draw conclusions without sufficient context.
HB 1788: A bill establishing a hard cap on the amount possible to charge for printed copies of records: 10 cents per page. With no current restrictions, some towns have opted to charge one or two dollars per page. Opponents said that flexibility is needed to help towns recoup administrative costs. The bill passed the House 181-149.
HB 1789: A proposal to prohibit fees imposed by towns for electronic records, killed by the House 213-117. Speaking on the floor, Rep. Jason Janvrin, R-Seabrook, said that any records not available online should be provided by email by town staff for free. But Rep. Sandra Keans, D-Rochester, said the fees are necessary to cover the costs it takes to redact certain files and maintain security over the servers. And she added there wasn’t a demand. “The biggest proponent of this bill is the New Hampshire Press Association,” she said. It wasn’t a compliment.
SB 420: This bill would make collective bargaining negotiations with public sector unions subject to the right-to-know law, allowing the public to attend. The proposal, which would radically change executive negotiations with state workers, not to mention local teachers’ and police unions, was given an ought-to-pass recommendation by the Senate commerce committee. Advocates said the added scrutiny could force both sides to reach compromises sooner; unions and others said it would turn the negotiations into a public spectacle, rather than a productive discussion. The bill awaits a vote on the Senate floor, but odds are slim – a similar bill failed in the House this month by voice vote.
HB 1786: A bill to do away with a cost that many might not know is allowed: charging a fee for looking at a document on a screen or paper without taking it out of the building. House Bill 1786 would only allow fees if an on-site copy machine is used; time-honored reporter’s practice of snapping photo albums worth of documents on their smartphone would be guaranteed free of charge. The bill passed the House by voice vote.
For Saad, the ebb and flow of wins and losses is nothing new for his cause. “Nothing’s easy, but we keep fighting,” he says.
But with key proposals continuing to pick up support this year, Saad and other advocates of transparent government may rightfully feel some wind behind their backs.