Several Bills Aim to Improve New Hampshire Right to Know Law Enforcement, Compliance

By David Saad | Right to Know New Hampshire

Our government belongs to us. Part I Article 8 of the New Hampshire Constitution articulates the citizen’s right to know what its government is doing. This right is further codified in the state’s Right to Know Law.

Yes, citizens have the right to know what their government is doing on their behalf. But when that right is violated, the citizen’s ability to enforce that right is severely limited because of a number of enforcement barriers that exist. These enforcement barriers are:

There is no government agency responsible for monitoring compliance or enforcing the Right to Know Law. When a citizen believes the law has been violated, enforcement of the law falls squarely on the citizen’s shoulders.

The only option for enforcement is through the court system. Costs and legal complexities associated with filing a petition in court is a financial and emotional burden, and for some it’s simply prohibitive. Last year, the Center for Public Integrity gave New Hampshire an F and the second lowest grade in the nation on public access to information. The state ranked 49 out of 50. A key factor in that ranking was the lack of any formal mechanism for appealing an agency’s rebuff of information requests. In such cases, a citizen’s only recourse is the court system.

When citizens go to court and win a case, they often cannot recover all their expenses because the law sets a high bar for the recovery of attorney fees and other costs. Such fees are only awarded when a government agent “knew or should have known” that they violated the law.

These enforcement barriers effectively function as toll booths along the enforcement highway on route toward a destination of equitable resolution and compliance with the Right to Know Law. Many citizens simply run out of time and money long before they reach their destination. This year Right to Know New Hampshire authored three bills which, have been introduced into the current session of the New Hampshire legislature to address these enforcement barriers.

HB178 establishes a commission to study procedures to resolve right-to-know complaints. The objective of the commission will be to make recommendations that will:

1. Encourage resolution of right-to-know complaints directly between citizens and public agencies and bodies.

2. Reduce the burden and costs of right to know complaints on all parties, including the citizens, courts, public agencies and taxpayers.

3. Increase awareness and compliance with the Right to Know Law to minimize violations.

Several other states have established independent arbiters to help resolve right-to-know complaints and minimize costs for all parties. This commission is a good first step towards the establishment of an independent arbiter to hear and resolve complaints, which would allow for a streamlined and less costly resolution alternative to our court system. Testimony in support of this bill can be found here.

HB252 helps citizens who choose to enforce their rights through the courts by simplifying some of the rules regarding the admission of evidence by self-represented litigants. As many citizens cannot afford the thousands of dollars required to hire legal counsel, they must petition the court themselves. To ease the burden on all parties, this bill will simplify the legal process by allowing the petition to also function as a request for admission of evidence.

This bill also requires that the response by the defendant be provided several days prior to the court date, allowing the petitioner sufficient time to process the response and adequately prepare for the hearing. This change also saves time, which is critical since right-to-know petitions are given high priority on the court calendar resulting in very short court imposed deadlines. Testimony in support of this bill can be found here.

As Thomas Jefferson said, “Ignorance of the law is no excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.” Our organization agrees and HB365 will ensure that citizens will be able to recoup all legal expenses incurred when they win in court by no longer allowing ignorance as a valid excuse for not paying attorney fees. The penalties for failure to follow the law must provide adequate deterrents to increase compliance. Always awarding attorney fees when a violation of the law is proven will create a more equitable deterrent against violations ultimately leading to greater compliance.

With taxpayer money backing the governmental entity, this bill will also create a greater incentive for public bodies to settle right-to-know complaints before going to court. The failing grade given to our state by the Center for Public Integrity was due in part because “the law sets a high bar for the recovery of attorney fees and other costs.” This bill lowers the bar by removing ignorance as a valid defense against the awarding of attorney fees. Testimony in support of this bill can be found here.

Our fourth bill, HB460, improves compliance by requiring that alleged violations that occur during a meeting and are identified by a member of the public body shall be recorded in the meeting minutes. When members of a public body witness a violation of the Right to Know Law during a meeting, they are put in a legally precarious position. If they speak up and the violation is not corrected, they could become a party to any legal action filed because of the alleged violation and suffer the consequences of personal liability including civil fines. Alternatively, the member could decide to leave the meeting and not be a party to any violation of the law. However, should they leave the meeting, they would be in no position to monitor and attempt to minimize the negative impact of the violation or thwart any further violations. This bill will provide that a member who reports open meeting violations will have immunity from personal penalty regarding the violation they reported. The objective of this bill is to allow a board member to continue to fulfill his or her duty on the board while having an alleged violation entered into the record. Testimony in support of this bill can be found here.

Right to Know New Hampshire works with the state legislature to strengthen the Right to Know Law, help citizens exercise their right to know, and provide helpful resources through our blog for anyone interested in this fundamental right. To learn more about the Right to Know Law and our efforts to make government more open and transparent, please visit our website.

David Saad is president of Right to Know New Hampshire and can be emailed at righttoknownh@gmail.com.

Above photo provided by Wikimedia Commons and used under a CC 3.o license

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NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Supporters of NEFAC for this year include: The Robertson Foundation, The Boston Globe, Boston University, The Hartford Courant and the John S. and James L. Knight Foundation. 

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