Transparency advocates see issues with right-to-know ombudsman bill

A bill establishing a right-to-know appeals board has government transparency advocates concerned certain provisions will make it harder, not easier, for the public to resolve disputes.

Currently, if someone doesn’t agree with a public body’s decision on releasing information, the only path for appeal is through the Superior Court.

Efforts were made last year to establish a paid ombudsman with a 15-member volunteer oversight commission to give the public a cheaper, quicker alternative to appeal right-to-know decisions. But the bill ultimately died in the House, in part due to issues the House’s Finance Committee saw with the bill’s financial structure, according to House records.

Now, state Rep. Lynne Ober, who serves on the Finance Committee, is sponsoring a new bill that she said fixes those issues.

For one, the bill would require a $300 non-waivable fee to file with the appeals board, which is more expensive than the $280 filing fee for a civil petition in Superior Court. The courts can choose to waive filing fees.

The current bill would also remove the oversight commission and place the review board under the jurisdiction of the Department of Justice. Members would be appointed by the governor and the Executive Council.

The board, which would meet 20 hours a week, would be advised by a part-time attorney versed in right-to-know law and paid $44,000 annually. The previous bill set no hours and would have requested a full-time attorney paid $48,000 annually.

David Saad, president of RTK New Hampshire and a member of the ombudsman study commission, said the changes essentially undermine the commission’s recommendations.

“It has a chilling effect,” he said of the filing fee. “If people are not spending (the money) to file a petition in court, how likely are they to file a $300 fee to go before the board?” Last year’s bill had no filing fee for citizen requests.

Ober said Wednesday that situating the appeals board within the DOJ would allow the advising lawyer to “stand around the water cooler and bat an idea around.”

Saad said DOJ oversight would present at least a perceived massive conflict of interest, in part because the department itself is the subject of many RTK requests and is charged with defending the state in RTK appeals.

“It’s hard to have confidence that anything that person would do wouldn’t be informed by the DOJ,” he said.

Appeals can be quite expensive. In the Superior Court case of Porter v. Town of Sandwich, Boone and Margaret Porter were awarded over $200,000 in attorney fees after the court ruled the town’s board of selectmen repeatedly violated state law. Taxpayers footed the bill, and the board of selectmen were ordered to take remedial right to know training.

But such appeals are uncommon; according to the bill’s text, 15 RTK appeals were filed in Superior Court in 2015, 16 in 2016 and nine in 2017.

Cordell Johnston, representing the New Hampshire Municipal Association, said his organization had similar concerns about DOJ involvement, although it supports the concept of an appeals board.

He suggested Wednesday that the appeals board be modeled after the Board of Land and Tax Appeals, in that it would operate independently and members would be appointed by the state’s Supreme Court.

RTK-NH Vice President David Taylor said there is one more issue the bill needs to address.

“Ombudsman hearings need to be subject to right-to-know requests,” he said.

Some who testified on Wednesday suggested the committee hold onto the bill until another, similar bill proposed by state Rep. Kenneth Wheeler comes to the House. Saad said the bill is closer in spirit to the one proposed last year and may address some of RTK-NH’s concerns.

There’s time for these issues to be addressed; Judiciary Committee chair Majorie Smith called for a subcommittee on Wednesday, which will meet next Thursday at 10 a.m. to study the bill.