By PAULA TRACY, InDepthNH.org
CONCORD – Proposed changes to the state’s right-to-know law, including a measure that would make it easier for an individual or the press to recover legal fees from entities that unlawfully withhold public records, were heard Thursday before the House Judiciary Committee.
Other proposed legislation would allow for remote voting in municipal meetings, require updates on right-to-know requests, and require minutes of non-public sessions to be reviewed to become public after 10 years.
The bills come at a time when the state is about to install a new office of Right-to-Know Ombudsman and in many cases come because of the need for changes in remote participation precipitated by COVID-19.
The House Judiciary Committee heard HB 307 which would change the current law related to the awarding of attorneys fees in right-to-know cases.
Gilles Bissonnette, legal director of ACLU-NH, said the state used to have this option in the 1970s but since 1986 the law states attorneys fees are only awarded if the municipality knew or should have known they were wrong and litigated anyway.
The bill would change the law to indicate if a person wins against a municipality, their legal costs are covered.
State Rep. Dan McGuire, R-Epsom, the sponsor, said “we don’t want the process to be the punishment.”
Katherine Kokko, acting president of the nonpartisan Right To Know New Hampshire organization said RTK-NH enthusiastically supports the bill. She said fees awarded to the public are rare.
“The playing field needs to be evened out,” Kokko said.
Bissonnette strongly supported the bill and expressed a need for fee-shifting and that is exactly what this bill does.
Laurie Ortolano of Nashua supported the bill. She fought the city assessor’s department in court for change which did occur, but she exposed herself and her husband to almost a quarter million dollars of legal fees.
“We’ve lost our media coverage now,” she said. “The press played a big role in the right-to- know.
“But I think you are seeing it shift to citizens doing it and we are being smoked,” Ortolano said.
Ortolano said she thinks if fees were awarded, municipalities might think twice.
The law would also require tracking of municipal fees which they do not do in these cases.
Brendan McQuaid, president of the New Hampshire Union Leader and representing the New Hampshire Press Association supported the bill.
McQuaid said it gives much more leeway to the courts and would create an incentive for public bodies to be more responsive.
“We continue to see instances like Laurie Ortolano’s case where documents are wrongfully withheld and they are withheld in violation of the letter and the spirit of the law,” McQuaid said.
McQuaid said not only is the current law daunting to a private citizen going up against a publicly funded attorney but also for news outlets in the state, some of them one-person operations that seek public documents.
“HB 307 will help level the playing field,” he said.
Margaret Burns of the New Hampshire Municipal Association, opposed the bill and said the current law already allows for recovery of fees if the entity knew or should have known that withholding the documents was a violation of the law.
“There is logic to having these exceptions,” Burns said.
She called the proposal “a dramatic change” to the law and would be “shifting the burden of defending that lawsuit, based on reasonable legal advice, to the taxpayers.”
Ross Connolly, deputy state director for Americans for Prosperity, said his organization supports the bill.
He said this bill provides a simple solution to bring more sunlight into government.
“We view this bill as a powerful incentive that if a lawsuit is going to be brought it is respected and taken more seriously when there is skin in the game for both sides,” Connolly said.
What limits and guardrails should apply to the law are being explored in these bills.
State Rep. Marjorie K. Smith, D-Durham, a member of the committee, said the state has tried to develop a system that is accessible, understandable, transparent, and accountable through RSA 91A.
There are constant needs that arise to define and clarify the law because things change. She presented HB 149.
The current law states that the public has a right to public documents in five days and the public entity needs to either hand them over, deny the request or ask for more time to produce the request.
The bill says the public should have an update after 30 days in the latter case and an explanation of why it is taking so long and that it needs to be updated every 30 days.
“My purpose, here, is to try to move us however slowly to a more perfect union,” Smith said.
Bissonette said his organization supports the legislation and notes it is not uncommon for there to be delays on requests in the right-to-know process.
“As a litigant, I do tend to get updates but this makes sure that everyone gets that benefit with timely information.
“The more the communication,” he said “the less likely there is to be a fight.”
This does not change the five-day response in law now, he noted, but makes sure that thereafter if they are not produced there is a regular check-in.
Kokko said HB 149 is an incredibly important piece of legislation for this year.
It provides clarifying language that the public body is responsible for either providing the document, a denial, or a reasonable timeframe for that document.
The language is not to be punitive but could provide the state’s new Right to Know Ombudsmen with backing when ruling on RSA 91 A denials, she said.
Another RTK measure, House Bill 254, is about remote meetings and voting remotely.
If a quorum is not able to be met, the measure would allow for that to be achieved remotely. This would apply to school boards and city council meetings.
The bill’s sponsor, Rep. Alexis Simpson, D-Exeter, said it would not include town meetings.
State Rep. Josh Yokela, R-Fremont, said the definition includes both town and school deliberative sessions noting it would be impractical and likely impossible to verify residency for voting.
Karen Hill, a Lebanon City Councilor, voiced support for the bill and asked for an amendment to add the word “instrumentality.” She said remote observation and participation have been invaluable especially during COVID-19 when some are in quarantine and also helpful in bad weather.
“It is enabling,” Hill said. “It merely provides the option…and it does have safeguards in place,” including the fact that a meeting is happening, while it may not have the full number of people physically present to vote.
Kokko said RTK-NH opposes the bill.
She said the organization recognizes the advantages but there is contradicting language about being audible and visible by the public and the voting body.
Natch Greyes of the New Hampshire Municipal Association, said it supports the bill. There are still requirements for the meeting to physically be held and requires that there be a legitimate reason for the voting party to not attend.
Promoting public access is good, he said, and has helped as more remote participation is engaging more people and making for better government.
House Bill 308, which addresses remote access, was amended to apply to only the 11-member Rare Disease Advisory Council.
Many who are on a council – doctors in Lebanon and others with rare diseases or who live far away – cannot physically take a whole day to come to Hazen Drive in Concord for the meetings or have needs for accommodation. The monthly meetings have been on zoom but the law does not allow for voting so no minutes have been approved for a year.
Kokko of RTK-NH said she was concerned about the original bill because it took away a lot of the rules that are necessary as part of the public meetings laws under RSA 91A. Members of the public need to be able to interact.
Kokko said the amendment does apply to this rare diseases council, but there is a need for a more comprehensive look at remote meetings and RSA 91A.
Another attempt to change the existing right-to-know law by prohibiting government officials from hiring an attorney to help them violate the law is House Bill 289.
Burns opposed the bill on behalf of the New Hampshire Municipal Association saying it was unnecessary and already covered under existing law.
MAKING PUBLIC NON-PUBLIC MEETINGS
There is no set guidance in the state for how non-public meeting minutes for municipalities become public.
House Bill 321-FN-L would provide guardrails to propose procedures for making non-public sessions public, said Rep. Yokela who sponsored the bill.
There should be a review every 10 years of those minutes at the very least and many municipalities might do it every two years, but the idea for 10 years was to not make the bill burdensome, Yokela said.
Currently, he said there is no time frame in RSA 91A and it is “the wild, wild west.”
State Rep. Rebecca McWilliams, D-Concord, said she feels it is important to “put a pin in it” and to ensure that sealed meeting minutes eventually are made public.
She said she is interested in some school board minutes in Concord eventually coming to light.
Kokko, of RTK-NH supported the bill.
Burns of the New Hampshire Municipal Association also supported the bill and said it needs to be clarified in order to be in compliance with the law.
PERSONAL PRIVACY INFORMATION
The House Judiciary also heard a bill that relates to third-party information and privacy.
In 2018 a Constitutional Amendment was passed with guarantees to privacy but some have considered it vague.
House Bill 314 would “put flesh” on it as it relates to expectations of privacy in the collection of and use of personal information by third parties, said state Rep. Keith Erf, R-Weare, the prime sponsor.
He gave the example of third-party access to a phone company’s records of who you call and how long you talk.
A co-sponsor is Rep. Robert J. Lynn, R-Windham, who chairs the committee and is the retired New Hampshire Supreme Court chief justice.
John Williams, legislative director for the Department of Health and Human Services, said Rep. Erf did his homework on this bill to ensure it allows privacy but does not limit services the government should provide.
“They have done a good job to ensure the balance,” and urged other agencies and entities to work with the sponsors.
“We are not taking a specific position on this bill,” he said of the department.
Connolly of Americans for Prosperity voiced his support for the bill and said it has been fine-tuned over several sessions beginning with former state Rep. Neal Kurk, R-Weare, following the passage of the constitutional amendment.
He said the bill puts guardrails in place to prevent abuse by government entities.
Rick Fabrizio, director of communication and public policy for the Business and Industry Association of New Hampshire, strongly opposed the bill, similar to a measure last year which was killed.
He said that it is built on vague and overly-broad interpretation.
The New Hampshire Municipal Association also opposed the bill as written, indicating that there may be some unintended consequences.
Joe Ebert, a major with NH State Police said there may be an impact on law enforcement with the bill.
He said he would never want to take away something from investigators that might solve a crime.
Kurk testified noting the bill has been brought back several times but never passed the Senate. It is brought back “because it is important,” he said.