By PAULA TRACY, InDepthNH.org
CONCORD – Sunapee Town Manager Shannon Martinez said she deeply believes residents should have access to public documents and transparency but she said 2023 was the year she saw the right-to-know-law “weaponized.”
She told legislators Wednesday the town processed more than 70 right-to-know requests, some taking more than 30 hours to process.
Twenty-nine of the requests were from a single person and she spent on average five hours a week totaling 260 hours or 32.5 days – a month of the year – on that single person’s issues and she is the town’s highest paid employee.
“It hardly seems fair to other residents,” she said, when they need help with their own issues.
But others asked if it should be the right-to-know law or “the right-to-know if you can afford it” law as was asked by Rep. Kristine Perez, R-Londonderry.
Martinez, other municipal officials, news organizations, rights advocates and those who file right-to-know requests for public documents testified Wednesday on House Bill 1002 https://www.gencourt.state.nh.us/bill_Status/billinfo.aspx?id=1088, heard before the House Judiciary Committee. Perez is a member of that committee.
The bill would allow municipalities to charge the public for requests that take more than 10 hours to produce and after that charge up to $25 an hour.
The idea, said supporters, is to deter the few requesters who would “weaponize” RSA 91-A with big data requests and drain the time of public workers, particularly in small communities with limited resources.
But others said it would be unfair to the poor to charge them hundreds of dollars for access to public documents.
Martinez said she believes in transparency and the public’s rights but would like to see what the state can do to curtail those who abuse the right.
Some requesters have called her staff egregious names, she said, and it has led to a toxic work environment with some members of the public.
The hope, she said, would be to engage in a dialogue to dial in on the information requested and the bill would steer that conversation forward in a positive way.
Gilles Bissonnette, legal director for the ACLU of New Hampshire, spoke “strongly” in opposition to the legislation.
“There are some states that do this, right, that charge for labor costs. And there are many states, like New Hampshire currently, that do not. And I think we should stay where we are,” he said.
He said some neighboring states have taken to charging and “transparency has suffered.”
“I would argue that there are many ways we could be making this law better, not worse,” Bissonnette said.
Natch Greyes, attorney for the NH Municipal Association, said it did a survey and 70 municipalities responded, finding that most requests take five hours or fewer and would not be impacted by the bill.
He said the association supports the bill and said it incentivizes a dialogue.
He said fear of hurting the average citizen is misplaced and the 10-hour limit gives a good buffer.
He said local adopted fees could be established up to the limit of $25 an hour after 10 hours.
“That way we don’t have any local officials inquiring into the purpose of your request because really our only job is to make sure you get what you want.”
Copy costs are allowed in state law now, and vary by entity and could be as little as free for some, and upwards of a dollar a page for documents that can be charged.
Bissonnette said the current situation is working with “some skin in the game.”
“I don’t want the pendulum to swing towards secrecy and that is what this bill will do in my view,” Bissonnette said.
Laurie Ortolano of Nashua, who has successfully sued her city over access to public assessing documents, mostly acting as her own lawyer in court beginning in 2018 opposed the bill.
“On this surface it appears reasonable, but I am concerned about discrimination and retaliation issues that will result in this and the targeting of individuals who are trying to uncover wrongdoing that is going on in a municipality.”
“It’s very difficult to go to court on your own…with a city legal office that is not transparent,” she said.
“I don’t believe I am a bad actor,” she said. “I believe I am a citizen.”
Jon D. Lavallee, senior assistant attorney general, spoke in support of the bill saying it is a reasonable fee system for large right-to-know requests.
“It can facilitate conversations between state agencies, state public bodies and requesters,” he said and create greater efficiency and processing of public records and can “in the rare instance, a reasonable fee system can disincentivize the rare but highly problematic vexatious requests that are only meant to burden or impede governmental business.”
He said it is the Department of Justice’s belief it will lead to a system where time can be valued.
State Rep. Marjorie Smith, D-Durham, a member of the committee asked if there is any language in legislation that recently created a right-to-know ombudsmen, in which a municipality could go to get a dispute with the public resolved.
Lavallee said he was not aware of any language in the current law which would allow for that sort of thing.
Thomas Kehr is the state’s right-to-know ombudsmen.
A bit of information about the job and his contact information is here https://www.sos.nh.gov/administration/office-right-know-ombudsman.
Amanda Palmeira, assistant city attorney in Keene, came in support of the bill and offered some amendments including inspection and delivery without copying for matters that will take more than 10 hours. She said the goal is for protection of municipal staff time.
“We found staff time has the largest impact,” and the vast majority of the requests do not take 10 hours. It is usually two hours, she said.
Al Brandano of Kensington spoke in opposition to the bill, reading from the Constitution.
“You are taxing, if you put this through, our enumerated rights,” he said. “We certainly can’t charge people for the right-to-know.”
Harrison Thorp, publisher of a Rochester Voice, said the effort would be weakening existing law. He said he would want an amendment to the bill at the very least because as a resident of Maine, he could not get the documents he requested.
Brendan McQuaid, publisher of the New Hampshire Union Leader and president of the New Hampshire Press Association, testified in strong opposition to the bill on the association’s behalf.
And Rep. Smith challenged Lavallee’s description of individuals who are using the right-to-know.
“Everyone has the right to utilize the right-to-know. So I am a little concerned about calling something ‘problematic.’ Problematic to the town because it takes more time? That person has as much right as anyone else,” she said.
McQuaid agreed and said he was disturbed by the notion that these are “annoying” citizens, out-of-state and commercial interests putting in burdensome requests.
While that may be a problem that needs to be dealt with, that is not what this bill is about, he said.
“It creates a situation for everyone putting in right-to-know requests,” including his corporation and other media outlets that are part of the press association.
He cautioned, if legislators do attempt to address the out-of-state interest, think of entities that are from out of state, including the Boston Globe or individuals like Harrison Thorp.
McQuaid said big commercial entities would laugh at having to pay several hundred dollars and would not be deterred by this bill.
“There are problems now as many of you know with exceptions under 91-A and a lot of entities just don’t want to provide stuff,” McQuaid said. “We’ve had a lot of talk about ‘weaponizing’ of 91-A here. This bill provides a very potent weapon to any agency that is currently unresponsive and I would encourage not to give them that.”
Catherine Coco, president of Right-to-Know NH, said the bill is bad for public interest and bad for communities.
She suggested the bill be killed.
Paula Tracy is InDepthNH.org’s senior writer with 30 years reporting experience.