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Despite claims of transparency, Gov. Hassan refuses to release proposals to make state government more efficient

Last modified: 2/9/2015 4:43:48 PM
Gov. Maggie Hassan says she’s all about government efficiency and transparency.

But when it comes to efficiency in government spending, she’s hardly transparent.

Pulling together the state’s two-year, $10 billion budget – which affects virtually every person in New Hampshire – is shaping up to be the big challenge of her second term.

Already Hassan has required state department heads to submit proposals detailing how their agencies can be more efficient and effective in the coming years because there’s hardly enough money to go around and people haven’t fully recovered from the recession.

But Hassan doesn’t want you to see them.

The Monitor filed three separate requests under the Right to Know law and the state Constitution asking Hassan to release the efficiency proposals that were due to her office by Dec. 1.

Each time, Hassan and her attorneys rejected the request and decided to keep the documents secret.

Bill Chapman, one of the state’s top legal experts on the Right to Know law, thinks the people of New Hampshire have every right to review those documents.

“If the agencies make proposals but they never see the light of day because the governor doesn’t adopt them for one reason or another, well that’s the kind of information the public ought to know about it,” Chapman said.

“If the agencies are making innovative proposals and the only reason we can’t do them is somebody doesn’t have the gumption to figure out a new revenue source, shouldn’t the public know that? Maybe the public would like to endorse a new revenue source.”

Hassan doesn’t agree.

Through two government attorneys, Hassan refused to release the ideas from department heads to make their agencies, and state government as a whole, more efficient.

The Monitor was interested in reviewing and reporting on those efficiency proposals, because allowing people to see what’s on the table gives them a chance to agree or disagree with their government and elected representatives.

But, as it turns out, there’s something in them Hassan doesn’t want people to see. What that could be is anyone’s guess.

Publicly, Hassan often cites innovation, efficiency and even transparency as priorities. And she’s appointed a commission to explore how state government can improve in those areas.

During her inaugural address Thursday, Hassan continued on those themes. She said Granite Staters are frugal and take pride in a small and nimble state government.

“And in order to protect taxpayer dollars, we must also continue to challenge ourselves to make state government more innovative and efficient,” she said.

Yet when asked to release proposals for improved government efficiency, transparency was nowhere to be found. In fact, she cited a legal precedent known as executive privilege, which is absent from the state Constitution and, to our knowledge, has not been recognized by any court in New Hampshire. Executive privilege would give her broad powers to reject requests for government information.

Even a new state law she signed last year that specifically requires similar efficiency proposals submitted by state department heads to be made public did not move the governor to release the documents.

Here’s a rundown of the Monitor’s attempts to get the information and Hassan’s responses.

The Monitor first filed a Right to Know request on Dec. 11, citing state law 91-A and the state Constitution asking Hassan to release any records from state department heads “describing what efficiencies have or could be implemented to save taxpayer money.”

“There is no more public process than creating the biennial state budget, which is why these records should be released,” the Monitor argued in its Dec. 11 letter.

The rejection was swift.

The following day, Hassan’s lawyer, Lucy Hodder, argued the documents were not public because they are drafts and rejected their release.

“These drafts are part of the deliberative process that is critical to formulating the Governor’s proposal for a fiscally responsible, balanced budget, which is still being developed,” Hodder wrote.

Hassan’s budget plan will be made available Feb. 15, and may or may not include the efficiency proposals.

State law allows certain documents to be kept private while they are still being worked on – the Right to Know Law describes these as “preliminary drafts, notes, and memoranda and other documents not in their final form” – but once those documents move from one agency to another, or from one official to a public body, courts have typically ruled they cease to be drafts and should be disclosed.

So, the Monitor asked again.

“We vehemently disagree with your argument that these reports from the state’s department heads to the state’s top executive are exempt from disclosure because they are ‘drafts,’ ” the Monitor wrote in a second request Dec. 15. “Using such logic could lead to the opinion that most pieces of government information are draft and not subject to public disclosure. We maintain these documents ceased to be drafts when they were sent to the governor’s office.”

Again, the news organization asked Hassan to release the proposals to make state government more efficient “to coincide her larger initiatives about improving government efficiency and transparency.”

The argument carried little sway.

This time, Assistant Attorney General Ann Rice responded, reiterating the governor’s office opinion that the records were drafts and also argued Hassan wouldn’t have to produce them anyway because she enjoys executive privilege, a broad power allowing members of the executive branch to keep government information secret.

The concept of executive privilege was first raised by the Nixon administration in the wake of the Watergate scandal and is untested in New Hampshire.

“The Governor properly receives advice and information from department heads on important issues facing the state and there is an ongoing need for honest and open communication between the Governor and her department head advisors,” Rice wrote in her response on Dec. 22.

Chapman sided with the Monitor’s viewpoint.

“The documents the governor got, those are final documents in my view,” Chapman said, adding, “Once the agency sends it from one department to another department, that’s a final draft.”

So, the Monitor asked a third time.

“We contend that honesty and transparency are exactly what the public deserves,” the Monitor wrote in its letter Dec. 31.

“Given the importance of the state budget and its importance on the people of New Hampshire, we feel the argument for disclosure couldn’t be stronger,” the letter states. “With all due respect, these records are the people’s records, not private documents that should be shrouded in government secrecy.”

In a short response, Rice said the state’s position remained unchanged.

Ultimately, this fight is about more than the information contained in these government documents, it’s about whether Hassan walks the talk and allows New Hampshire’s government to be open and responsive to its people.

(Staff writer Allie Morris contributed to this column. She can be reached at 369-3307 or at amorris@cmonitor.com. Jonathan Van Fleet can be reached at 369-3303 or jvfanfleet@cmonitor.com. Follow him on Twitter @CMonitor_JVF.)


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