Right-to-know reforms heading to Gov. Sununu’s desk 

Monitor staff
Published: 6/18/2019 6:05:37 PM

For advocates of right-to-know law reform, this year’s legislative session is a mixed bag.

A proposal to create a “right-to-know ombudsman” to resolve public records disputes with public bodies is alive but uncertain. Senate budget negotiators are attempting to resuscitate it this week; House lawmakers are less sure.

But a pair of reform bills does have bipartisan support and is heading to Gov. Chris Sununu this month, and supporters say they would make requesting public documents from local or state government somewhat easier.

One bill, House Bill 396, would add a requirement for public officials to explain in writing why they’re denying records in the first place. Another, House Bill 286, would eliminate costs and fees associated with preparing documents that aren’t copied, clarifying existing law.

Support for the legislation is high. Both passed the House and Senate by voice vote; both are heading to the governor’s desk likely in the coming weeks.

Advocates say the bills would address at-times frustrating encumbrances. New Hampshire’s right-to-know statute, RSA 91-A, already does require notice to be given to a citizen for why a record is not available, and it already prohibits fees for viewing documents in person.

But there are limitations and loopholes.

For instance, presently, the law only requires public utilities to respond to a records request within five days, at which point they may “deny the request in writing with reasons.”

That’s a vaguely written provision, according to David Saad, president of Right-to-Know New Hampshire, an advocacy group. For one, “reasons” can be anything, he said. And the law doesn’t stipulate that a public body needs to explain redactions.

In fact, as long as the town or public entity produces a document, it doesn’t need to justify making most of it unreadable, Saad said. A town might provide a record but black out most of the lines, and it wouldn’t have to give reasons because the document itself wasn’t withheld, Saad argued.

HB 396 seeks to close that loophole by requiring that the reason given includes the specific statutory exemption relied on and how that exemption applies to the specific record. It’s important, Saad said, because it puts the public utility on record, preventing it from shifting explanations in a lawsuit.

“The idea is that they’ve got to give enough detail so that the person can confirm that the reason for withholding is appropriate by going to the RSA and referencing whatever they’ve referred to as a valid reason,” he said. “One would hope that they’re going to provide sufficient detail so that you can verify that the exemption is appropriate.”

Meanwhile, RSA 91-A includes a prohibition on charging a fee to citizens who are viewing documents without making paper copies. It’s a straightforward provision to prevent price gouging, but a recent court ruling complicated it by finding a distinction between “fees” and “costs.”

If, for instance, a municipality has to put in employee hours to fetch and redact certain records, the citizen might be charged for the “cost” of that work despite not receiving a printout, open records advocates have argued. By including costs alongside fees as prohibited actions for towns in those scenarios, House Bill 286 seeks to head off that possibility.

In the State House, right-to-know reform efforts follow typical trajectories. They’re pitched by motivated lawmakers and opposed by the New Hampshire Municipal Association, which represents cities and towns and opposes many laws that it says would add burdens or costs.

But for these bills, the Association is remaining neutral, if not actively supportive. Many of the bills’ intentions already align with the current practices of most towns and cities, according to Cordell Johnston, government affairs counsel for the group.

“I, from the very beginning, have seen this as not really making any significant change,” he said, speaking on the bill clarifying costs. “I always thought since this provision was enacted that it was clear that you can’t charge anything. The written notice requirement would also not significantly encumber towns, he added.

But Saad said that the loopholes have created confusion and aggravation.

New Hampshire has had a spotty record when it comes to public transparency. In 2015, the Center for Public Integrity, a national organization, issued the state an “F” in public access to information, basing much of its rating on the fact that citizens must appeal rejected records requests through the superior court system.

Still, ambitious reforms to the state’s records laws have proven a harder sell. The Democratically-controlled House has been averse to the concept of an independent ombudsman to adjudicate right-to-know appeals against public bodies, voting to kill two separate proposals this year.

The Senate added the ombudsman proposal into this year’s budget trailer bill, House Bill 2, which this week is being hammered out by House and Senate negotiators. But where original plans would include the ombudsman as a paid position, the Senate made it voluntary.

“There is still too much secrecy that takes place around right-to-know,” said Saad, referencing non-public meetings, sealed minutes, and other tactics available to hide discussions. “There’s much too great a leeway in the ability to seal minutes and also have them stay sealed for a much greater amount of time than they should be. This are what I call the veil of darkness and secrecy behind what public bodies are doing.”

(Ethan DeWitt can be reached at edewitt@cmonitor.com, at 369-3307, or on Twitter at @edewittNH.)




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