The following blog post is one of six that the New England First Amendment Coalition will publish during Sunshine Week, highlighting the need for government transparency and addressing freedom of information concerns throughout the New England states. When posted, these articles can be read here.
By David Saad
Today is the last day of Sunshine Week, the annual celebration of transparency in government. In New Hampshire, where the public’s right to know continues to suffer, let’s hope the celebration continues year-round.
Our Right-to-Know Law is failing. The Center for Public Integrity, a 2014 winner of the Pulitzer Prize, evaluated the freedom of information laws of all 50 states as part of its broader 2015 State Integrity Investigation. New Hampshire ranked 49th, beating out Wyoming by only one point for the worst score.
While the citizen’s right to access government records and meetings is enshrined in Part I, Article 8 of the New Hampshire Constitution and further defined in the Right-to-Know Law (RSA 91-A), the following shortcomings in the law are the major reasons New Hampshire received a failing grade.
Lack of Public Records Access
“Let the people know the facts and the country will be safe.” — Abraham Lincoln
The Governor’s Office is excluded from the agencies subject to the Right-to-Know Law. Even our elected representatives and senators who need timely and accurate information in order to faithfully execute their official responsibilities sometimes can’t get the records they need. For example, the governor refused to provide departmental spending reports to the chairperson of the Senate Finance Committee, which limited the committee’s ability to provide proper budgetary oversight.
Also, a governmental agency can exempt private sector information from disclosure as the Right-to-Know Law explicitly offers a broad exemption to confidential, commercial, or financial information. According to the report, there is evidence that government entities tend to invoke this clause when faced with requests for information relating to contracting and public service delivery, even though courts have sought to limit the exemption when it comes to information relating to these activities.
Public agencies have been inconsistent in how long they take to furnish records and the costs they impose for doing so. In 2015, a court found that the Office of the State Attorney General — which is responsible for providing guidance to all other government entities in abiding by the Right-to-Know Law, violated the law by not producing records in a timely manner. While agencies are, by law, allowed to charge requestors the “actual cost” of producing a copy, in practice agencies have imposed a wide range of copy fees up to $1 per page.
“I am sure the mass of citizens in these United States mean well, and I firmly believe they will always act well whenever they can obtain a right understanding of matters.” — George Washington
There is no government agency responsible for monitoring compliance or enforcing the Right-to-Know Law. When a citizen believes that a violation of the law has occurred they are on their own to fight for a resolution. Furthermore, the only option for enforcement is through the court system. Filing a lawsuit in court is intimidating, time consuming, and costly for all parties involved. For the average citizen, this represents a significant barrier to exercising his or her rights. It’s a long, arduous, and costly struggle which the individual citizen must endure even though, in most cases, all citizens are direct benefactors of one person’s lawsuit.
When a citizen goes to court and wins 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.
To help address these shortcomings in the law, for the last several years Right to Know New Hampshire has supported several bills for the establishment of a right to know commission to review cases of denied access to public records or meetings so going to court would be the last resort rather than the only resort.
Establishing a RTK commission would help level the playing field so that all citizens, regardless of their financial means, can exercise their rights to resolve alleged violations. This commission would reduce the costs and burden placed on the citizen, resulting in greater public access and a streamlined resolution.
Unfortunately, each of these bills failed in the House including this year’s HB1413, which would have established a commission to study less costly alternatives than going to court.
What Can Be Done?
Right to Know New Hampshire has worked to address many of the reasons why New Hampshire’s Right-to-Know Law received an F grade. We work with the state legislature to strengthen the law, help citizens exercise their right to know, and provide helpful resources through our blog for anyone interested in this fundamental right.
This year, we authored two bills that passed through the House and are currently awaiting a vote by the Senate. HB1418 requires public bodies to maintain more detailed minutes of nonpublic meetings. HB1419 requires that meeting minutes contain a record of each member’s vote for all actions. If passed by the Senate, both bills will provide greater government transparency.
To celebrate Sunshine Week, let’s work together to shine more light on the workings of local, county and state government throughout New Hampshire.
David is president of Right to Know New Hampshire and can be emailed firstname.lastname@example.org.
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. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.