Right-to-know roundup: Bills seek to broaden public’s access to information

  • The New Hampshire State House in Concord on Oct. 4, 2018 Sarah Pearson

Monitor staff
Published: 1/27/2019 6:00:02 PM

When it comes to communicating about a person’s request for public information, some public bodies would rather leave the public hanging or in the dark.

At least, that’s the way it seems based on the complaints Right to Know New Hampshire President David Saad receives.

“The delay or denial of information from public bodies without specific explanations is the biggest problem we see,” he said.

A crop of bills making their way through the State House would, on the whole, broaden the public’s access to information, touching on anything from best response practices to making information about police conduct available.

But that’s only if they make it all the way through – some bills have been reincarnated a few times already. Here’s a rundown of what to watch for this year:

Exemptions

Let’s start with the bill that would tighten RTK rules.

State Rep. William Marsh of Wolfeboro has put forward a bill that would allow county convention officers to be chosen by secret ballot. It would also make secret ballots used in the election of officers of a municipal, state, or county board, delegation, or commission exempt under RSA 91-A.

Marsh said he created the bill after he was asked to do so by one of his county commissioners.

A moderator for the town of Brookfield since 2010, Marsh said he hasn’t heard of anyone requesting to view secret ballots, but felt it was possible because such ballots are not listed under current RTK law.

“It might not have your name on it, but it has your handwriting, or people could look at the color of your pen,” Marsh said. “It could create an exceedingly awkward situation when the person sitting next to you is your neighbor at town meeting.”

The bill is currently before the House’s Municipal and County Government Committee.

And state Rep. Linda Tanner of George Mills has sponsored a measure that would allow a school board to review and adopt its data security plan in a nonpublic meeting. State law requires the plans be updated every year.

Tanner, who sits on the House’s Education committee, said the bill was inspired by a data security workshop she attended led by the New Hampshire School Board Association. She said the bill is meant to protect a district’s data; discussing their security policies in public could expose their weaknesses.

“If those security concerns are dealt with in public session, anyone who wants to hack (the school district) is going to get the information on how to do it,” she said.

The bill is scheduled for an executive session in the House’s Education committee on Tuesday.

Expanding

Then there are the bills aiming to broaden what the public is entitled to under RSA 91-A.

Or, in the case of two bills developed by RTK New Hampshire, reiterate what the public is already entitled to.

Belmont state Rep. Michael Sylvia has sponsored a bill that would reiterate that “no cost or fee” can be charged for the inspection or delivery of public records, without copying, regardless of whether the information is inspected in paper or electronic format. Public bodies would still be able to charge if copies of the information are needed.

Another bill from Newmarket state Rep. Charlotte DiLorenzo would solidify the requirement that public bodies provide a written reason for a delayed response or a denial to a RTK request, and that they cite state law when doing so.

Saad said these practices are supposed to happen under RSA 91-A. But in many cases, public bodies prefer to follow the letter, rather than the spirit of the law.

“Many times these bodies will look to their legal representation to find any wiggle room in the law to allow them to do the minimum requirement and not be in violation of the law,” he said.

For instance, take the inspection bill. In theory, Saad said anyone who just wants to look at public records, and not keep their own copy, should be able to do so.

But in some instances, public agencies will create copies of the records in order to redact information from them, and then charge the public for those copies, Saad said.

In the case of the second bill, Saad said it’s common for public bodies to deny a record request with a vague reason, such as it being related to personnel or other exempt material. The bill would clarify that agencies need to cite a specific part of 91-A when denying information.

Both those bills had public hearings last week.

Westmoreland state Rep. Paul Berch sponsored two bills that deal with police personnel information.

The first bill would make sustained findings of police misconduct, like discharging firearms, causing death or serious injury, sexual assault, falsifying reports and lying, subject to right-to-know requests.

The second bill would repeal RSA 105:13-b, the law that governs the publicity of police officers personnel files.

It’s the same statute the Attorney General’s Office cited when it declined last year to release a fully-redacted Exculpatory Evidence Schedule, a list of names of officers who have engaged in conduct such as lying in court, falsifying evidence or using excessive force, to the New Hampshire chapter of the American Civil Liberties Union, along with several news outlets.

The state equates being on the EES List with personnel information. News outlets, including Newspapers of New England’s New Hampshire papers, and the ACLU-NH, disagree and are currently engaged in a lawsuit against the state to make the list public.

The bill would also clarify what counts as exculpatory evidence and the review process an officer can take when they find themselves on the list. It also protects police officers from being fired “solely on a determination that the officer has potentially exculpatory evidence in his or her personnel file.”

It does not, however, protect that officer from being fired based on what created the exculpatory evidence.

The first bill had a public hearing last week. The second has been referred to the House’s Criminal Justice and Public Safety Committee.

Not content with two, Berch has another RTK bill that would prohibit nondisclosure agreements in settlements that involve state employees or public agencies.

Another way to appeal

Another bill would give the public an additional way to appeal a RTK decision they’re unsatisfied with.

Efforts were made last year to establish a paid RTK ombudsman with a 15-member volunteer oversight commission to give the public a cheaper, quicker alternative to appeal right-to-know decisions rather than going through the court system.

That bill was killed in part due to issues the House’s finance committee saw with in proposal. It’s not the first effort to fail – similar bills have come before the State House in some form or another since at least 2014.

The new measure put forward by state Rep. Lynne Ober aims to fix those problems.

Those differences include a $300 nonwaivable fee to file with the appeals board, which is more expensive than the $280 filing fee for a civil petition; no oversight commission; a part-time attorney versed in right-to-know law and paid $44,000 annually, and placing the review board under the jurisdiction of the Department of Justice.

But those differences concern some transparency advocates. Saad, president of Right to Know New Hampshire, has previously said the $300 filing fee will present too much of a financial barrier to the public and that DOJ oversight will create at least the perception of a conflict of interest.

A subcommittee has been created to study the issue.




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