Bills would simplify N.H. right-to-know grievances

  • The State House dome is seen on Nov. 18, 2016, as the restoration project nears completion. (ELIZABETH FRANTZ / Monitor staff)

Monitor staff
Published: 2/10/2017 10:55:57 PM

Anyone who hits a wall with their right-to-know requests has one avenue for appeal if they believe government officials aren’t properly releasing public records: an expensive and complex legal process.

Three bills drafted by a right-to-know advocacy organization that are pending in the House of Representatives seek to help laymen navigate that process by removing obstacles and potentially establishing an alternative route outside the courts.

Two Right to Know New Hampshire bills have already been approved by a House committee.

House Bill 178 – which received a unanimous recommendation – prevailed where others before it stalled, said David Saad, the organization’s president. It would form a commission to study ways to resolve right-to-know complaints more efficiently.

Saad said he hopes the commission will request an independent arbiter to hear right-to-know grievances in a less formal setting than a court. In 2014 and 2015, two bills designed to create a grievance commission “went absolutely nowhere,” he said, and last year, the group scaled back its request to a study commission only. That too failed in an 11-3 vote, he said.

But in its fourth year testifying, Right to Know New Hampshire had a breakthrough when the House Judiciary committee recommended by an 18-0 vote that HB 178 pass with an amendment.

Saad said the commission, as amended, would include four government representatives, five representatives of watchdog groups and four elected officials.

“Depending on how you want to interpret those four (elected members) kind of controls how you feel this board is weighted,” Saad said. “We’re not fighting the amendment because we feel this is the best we can probably get.”

Under the state’s existing framework, advocates of open information seeking recourse must decide whether they’ll hire a lawyer – with little chance to recoup his or her fees – or wade into the courts themselves to face off against taxpayer-funded attorneys, Saad said.

Cities and towns, on the other hand, can cite obscure court cases as justification for not releasing arguably public records, knowing that the recipient will face a tough decision if he or she wants to keep pressing the issue.

“Think about it,” Saad said. “You’ve got the citizen who’s filing a suit against, say, the local school board. He’s paying taxes, which are paying for the attorney he’s fighting against, and then he’s paying his own money (for his attorney). So he’s paying twice.”

Even if his lawsuit is successful, there’s a good chance he won’t be awarded a dime to cover the expense of his attorney. Another bill tries to address that problem.

House Bill 365, also recommended by the committee, seeks to make it easier for citizens to recoup legal fees. Government bodies currently only pay the opposing attorney fees in cases when the court finds that the person in violation “knew or should have known” that he or she was breaking the law.

“That’s a very high bar to prove, because let’s face it, anyone can claim they didn’t know,” Saad said. “It’s very easy to claim ignorance.”

A note attached to the bill says over the past two years the state Department of Justice was sued 10 times for right-to-know violations. Only once did the litigant successfully prove the “know or should have known” clause to receive $9,348 in attorney’s fees, according to the bill.

Rep. Dan Hynes, a Merrimack Republican and attorney, commented about that statistic: “In many circumstances it would appear cost effective for the government agency to deny the request and hope the person does not pursue litigation. Even if the person is ultimately successful, the government agency will not have to make that person whole by paying their attorney’s fees.”

Especially given the prevalence of elected officials working essentially as volunteers in important positions around the state, Saad said the law could be construed as an incentive for them to remain oblivious to right-to-know laws.

“Any time the public body violates the right-to-know law and they get caught, and it’s proven in a court of law, they may from a legal perspective claim ignorance,” he said, “and if the judge decides, ‘Yeah, you know what, they didn’t know,’ the law says that fees will not be awarded.”

“Our premise is if you’re an elected official, the right-to-know law is so basic to your duties, you shouldn’t be able to claim ignorance of that,” he added.

HB 365 was recommended by a 10-8 vote.

A third proposal, House Bill 252, would ease the burden on self-represented litigants by reducing the complexity and expense of the court process.

It would allow complainants to lay out their evidence in their initial petition, rather than submitting it through a separate process that Saad said “trips up” people who aren’t lawyers.

All of these elements compose a system that requires a substantial investment of time and money from citizens who would fight on behalf of their fellow taxpayers for public information. Saad noted that New Hampshire was named the second-worst state in the nation for public access to information by the Center for Public Integrity in 2015.

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