Why should it be expensive and time-consuming to access information that is in the public domain? This is what the New Hampshire Constitution states about government accountability and accessibility: “All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”
Yet once again your right to know, your access to public information, can be more difficult to access than it should be, because Senate Bill 555 was determined to be inexpedient to legislate by the New Hampshire House of Representatives. SB 555 would have established an ombudsman to provide the public with a voice to access public records, when access is not forthcoming in the manner obligated under RSA 91-A, the state’s right-to-know laws.
This is how my computer’s dictionary defines ombudsman: “an official appointed to investigate individuals’ complaints against maladministration, especially that of public authorities.”
Prior to becoming a city councilor, I filed a number of right-to-know requests. Some went smoothly, others not so much.
On one occasion, the city repeatedly delayed the information I had requested. Fortunately I was able to find a lawyer who would take my right-to-know request to superior court pro bono. Going to superior court is currently the only remedy you have if the public body is unwilling to provide you with the requested information. Luckily for me, just the threat of going to court was enough for the city to provide the information I had requested.
SB 555 provides a process to avoid having to go to court. Going to court can be intimidating, time-consuming and expensive. Instead, SB 555 allows you to bring your case to an ombudsman for a determination. You do not give up your right to go to court or to appeal in court, but it provides you an alternative to going to court.
If SB 555 had passed, potential penalties could be avoided. Not going to court would save both time and money. In some cases when the court has ruled against public bodies, the awards have been in the six-figure range. A potentially big hit for a community because an official misinterpreted the right-to-know law or didn’t feel like providing you with information that is in the public domain.
In addition to the public being able to ask the ombudsman to intervene, the bill would establish a Citizens’ Right to Know Appeals Commission. The commission would be charged with developing a less intimidating, less costly and a less time-consuming process. The commission would create and annually update educational materials that would be used by public bodies to better understand their obligations and your rights under the state’s right-to-know laws.
I guess even as I approach my golden years I am still a bit naive. I always thought that elected officials represented you, that they hired administrators with the goal of running government agencies that were working for you and organizations that the public bodies have memberships in were there to provide advice to ensure municipalities were providing the highest level of services to you.
Yet there are many who work for both state and local governing bodies who feel it is you who are imposing on them when you ask for access to information that is in the public record.
The New Hampshire Municipal Association, a resource for those who work in local municipalities, has advocated for legislation that would make it more difficult and expensive for you to access public records. They have advocated for legislation that would allow a local municipality to charge you in advance of receiving the requested information for the estimated time a municipality thought it would take to put together the information that you requested. Fortunately, the current RSA 91-A law does not allow any charge for the time it takes to assemble the requested information. You can be charged only for the costs associated with the printing of the information.
I urge you to remind your state representatives that they have an obligation to ensure that both the letter and the spirit of the state’s right-to-know law is being met. They have an obligation to remember public records are just that – public records. Your representatives have a responsibility to ensure that you have access to public records in a timely manner. Their obligation is not to make the process more difficult or costly for you. Their allegiance is not to administrators or organizations who lobby for interests other than yours. Their obligation is to represent you.
Oh, and by the way, the estimated fiscal impact of the new bill: $48,000.
(Allan Herschlag represents Ward 2 on the Concord City Council.)