Establishes a right-to-know ombdusman, responsible for responding to complaints under the right-to-know law. There would be a $300 fee for a complaint to the ombudsman.
Right-to-Know and Transparency
Article 8 of the New Hampshire Bill of Rights states, “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”
New Hampshire codifies that right to access in RSA 91-A, the state’s right-to-know law.
New Hampshire’s right-to-know law
About the law
The New Hampshire right-to-know law applies to almost every elected official, board, committee, and agency affiliated with state or local government, from the governor down to a municipal conservation commission.
In general, the right-to-know law requires:
- Advanced notice and public access to meetings, including the right to record meetings;
- Detailed minutes of meetings, including how each person voted;
- Access to all governmental records, including emails and other electronic records.
If a public body cannot provide immediate access to records — for example if they are archived at another location — the body has five days to provide a written response to a right-to-know request. That response must explain when the records will be available.
A public body does not have to change the format of a record, such as converting records from print to digital scans. It also does not have to create a record that does not already exist.
How to make a right-to-know request
Right-to-know requests should be made in writing to the person who is the custodian of the records being sought. Get tips for composing your right-to-know request. Any citizen may also request access to inspect the records being held by any state or local government body anytime during regular business hours.
Citizens have the right to inspect existing documents without being charged.
Public bodies can charge a citizen for the cost of physical copies of public records. There is no law on how much public bodies can charge for physical copies of public records. Some municipalities charge as much as $1 per page.
However, public bodies cannot charge the citizen for the time employees spend responding to the right-to-know request or retrieving records.
Exceptions to right-to-know
In some circumstances, a public body may keep meetings and records confidential. Those circumstances are usually to protect the privacy of individuals, public safety, or the negotiating power of the government. For example, personal school records of pupils are exempt from disclosure requirements. Emergency response plans are also protected from the public eye, as are consultations with lawyers.
If a public body is denying a request to view or copy records because of one of those exceptions, they need to provide a written statement to the person making the request. Starting in January 2020, the statement must also list the specific reason the materials are exempt from the state's right-to-know-laws.
Government officials and employees in New Hampshire do not have to undergo right-to-know training, unlike in some other states. However, individuals and governments can be held legally accountable for violating the right-to-know law.
Under current New Hampshire law, any citizen can file a lawsuit in superior court if they believe a public body violated the right-to-know law.
If the court sides with the citizen, the government may have to produce records and pay for the citizen’s attorney fees. However, the law only allows a court to award attorney fees if government agents “knew or should have known” they were violating the right-to-know law.
Given the high costs of such lawsuits, some right-to-know advocates support the creation of a state ombudsman who could rule on right-to-know complaints without all the costs associated with a superior court case.
It is also a misdemeanor to destroy any information with the intention of preventing such information from being revealed by a right-to-know request.
Other government transparency initiatives
The right-to-know law does not apply to courts, although New Hampshire courts have established rules to give the public access to court records. Those rules include a charge of at least $0.50 per photocopy or printout.
In recent years some transparency advocates have pushed for more transparency in law enforcement activity, from requiring officers to wear body cameras to creating a public database of drone use. Most of those efforts have failed to pass at the state level.
New Hampshire created the TransparentNH website as a portal for residents to easily browse state government expenses, tax revenue, employee salaries, and more.
Conflict of interest and financial interests
To increase transparency in government, New Hampshire law requires officials elected and appointed at the state level to file a statement of financial interests. That statement requires officials to report any source of income over $10,000 in the past year, and to report if they have a special interest in any other activity that could be financially affected by government action. They must also report these for other household members, including spouses and children.
Legislators and executive branch officials must also report any honorariums or expense reimbursement they receive.
All lobbyists must also register with the secretary of state.
Transparency in nonprofits
The right-to-know law also does not necessarily apply to nonprofits and other organizations that receive funding from the government. Those groups have to reveal some information, however.
Tax-exempt nonprofits must file form 990 with the federal Internal Revenue Service (IRS). Those filings are accessible to the public, and include information such as the compensation of board members and total expenses.
New Hampshire nonprofits must also register with the Charitable Trusts Unit of the attorney general’s office. The registration form includes contact information for every board member.
PROS & CONS
“NH is transparent enough in its government operations.”
- New Hampshire’s right-to-know law fairly balances the need for transparency with available government resources. Citizens are generally able to inspect government documents on-site at no cost, and there is an appeals process through the courts when a request is believed to have been unjustly denied.
- If New Hampshire requires state and local governments to make all information available online and/or in open formats it will increase costs, which will lead to higher taxes or cuts to other government services. Similarly, allowing citizens to file online right-to-know requests would increase the likelihood of people who live outside New Hampshire, such as employees of national special interest groups, making requests.
- Costs for printouts, photocopies, and other physical media can vary significantly from town to town, since larger municipalities often have access to discounts for bulk purchases of paper and other products. Due this variation, any state law limiting what municipalities can charge for right-to-know records would be unfair to small towns.
- Creating an ombudsman or commission to review right-to-know complaints would create a new bureaucracy of unknown size and cost.
“NH is not transparent enough in its government operations.”
- The superior court appeals process for right-to-know requests is costly and intimidating for residents. This makes it less likely a citizen will object to a public body denying a right-to-know request, even if it is illegal. New Hampshire needs to create an ombudsman or commission that can review right-to-know complaints to rebalance power between citizens and their government. An ombudsman or commission would also be less costly for municipalities than being taken to court.
- The New Hampshire Municipal Association, Right to Know NH, and other groups all offer training for government employees and officials on the state’s right-to-know law, but that training is not mandatory. Requiring such training would not cost very much, but could greatly decrease the number of right-to-know law violations.
- Some public bodies charge excessive amounts for paper copies of information. When it comes to electronic records, sometimes government officials will charge a citizen for the cost of a USB drive or paper printouts when an email could be sent at no cost. New Hampshire needs laws to prevent these unjust charges to citizens.
- In 2015 the nonprofit Center for Public Integrity gave New Hampshire an F grade for public access to government information, ranking New Hampshire 49th out of all states. Similarly, in 2018 the U.S. Public Interest Research Group ranked New Hampshire 28th out of all states in providing online access to government spending data. These rankings demonstrate that New Hampshire can be much more transparent.
Declares that no cost or fee shall be charged for the inspection or delivery of uncopied governmental records under the right-to-know law. The Senate amended the bill to allow state and municipal governments to charge to inspect a record if they must first redact confidential information.
Clarifies the confidentiality of reports and other information related to workers' compensation audits, so that the Insurance Department and Labor Department may share information.
If a public body delays or denies release of records under the right-to-know law, this bill requires the body to provide written explanation.
Requires the Division of State Police maintain an electronic database of criminal records accessible to the public. This bill similarly removes the requirement for a person to give notarized, written permission for another to view his or her criminal history. The Senate amended the bill to remove the requirement that the database be available to the public on the state police website.
Creates the Office of the Right-to-Know Ombudsman as an alternative route to resolving right-to-know complaints. The bill also establishes a Citizens' Right-to-Know Appeals Commission to oversee the ombudsman process.
Requires the Division of State Police maintain an electronic database of criminal records accessible to the public. This bill similarly removes the requirement for a person to give notarized, written permission for another to view his or her criminal history.
Establishes a right-to-know ombudsman, responsible for responding to complaints under the right-to-know law. There would be a $25 fee for a complaint to the ombudsman. The bill also establishes a Citizens' Right-to-Know Appeals Commission to oversee the ombudsman process. The Senate amended the bill to add a sunset clause that will automatically repeal the ombudsman in 2024.
Requires the state House of Representatives to live-stream and record every committee meeting for the public. The House amended the bill to instead establish a committee to study the issue of committee recordings.
Makes a nondisclosure agreement unenforceable in any settlement with a state officer, employee, agency, or other official. The House amended the bill to prohibit any "non-disparagement clause or other language which either prevents the parties from discussing the facts of the underlying claim or speaking negatively about each other."
Declares that there shall be no costs charged for delivery of electronic governmental records under the right-to-know law.
Requires a public body to keep and disclose records of any convening of a majority of the public body related to collective bargaining or consultation with legal counsel.
Expands the definiton of "public meeting" under the right-to-know Law to include collective bargaining meetings where more than one negotiating unit is present. At the time of this bill's submission, strategy or negotiations with respect to collective bargaining are excluded from the definition of "public meeting" under the right-to-know Law.
Exempts from public disclosure the details of an injury sustained by a state employee in the line of duty.
Modifies access to electronic governmental records under the right-to-know law, for example allowing for records to be provided electronically if an individual cannot appear at an office during regular hours.
Excepts certain discussions relating to chief executive officers who are supervised by a public body (such as a police chief) from nonpublic sessions under the right-to-know law.
Establishes a Citizens’ Right-to-Know Appeals Commission and the Office of the Right-to-Know Ombudsman, and creates a new process for resolving right-to-know complaints.
Requires that the names of the members who made each motion be recorded in the minutes under the right-to-know law.
Requires the Director of Legislative Services to publish the weekly rulemaking register directly online.
Declares that the cost charged for copies of governmental records under the right-to-know law shall not exceed the prevailing commercial rate for copies. The House amended the bill to establish a universal rate of ten cents per page.
Requires audio and video recording of proceedings of House committees, including all hearings, work sessions, executive sessions, and so on. Digital recordings of the proceedings shall be posted on the General Court website for public access and made available to the House Clerk for preservation.
Prohibits charging any cost for the inspection or delivery, without copying, of governmental records under the right-to-know law.
Sets the compensation of the Chief of Staff of the House of Representatives at grade I of the salary schedule. Any sums budgeted for compensation in excess of such grade would be used for recording committee hearings in the House, and making those recordings available to the public. At the time of this bill's submission, the Speaker of the House sets the salary for the Chief of Staff.
Establishes a registry of executive orders issued by the governor, available on the state website.
Modifies the misdemeanor penalty for tampering with public records. For example, this bill makes it a Class B Misdemeanor to refuse to amend an entry that is false.
Adds courts to the definition of "public body" under the right-to-know law.
Declares that, for purposes of the right-to-know law, the definition of a public meeting shall not include strategy with respect to collective bargaining only if just one party is present. At the time of this bill's submission, the law allows strategy or negotiations with respect to collective bargaining to be exempted from the definition of a public meeting regardless of the number of parties present.
Constitutional amendment removing the power of the Legislature to meet in private "when the welfare of the state, in the opinion of either branch, shall require secrecy."
Requires minutes of public meetings, or notification of minutes, to be posted on a public body's website, if one exists.
Requires public meeting minutes to note any objection from a member of the public if that person believes a discussion taking place violates the state right-to-know law.
Establishes a commission to study processes to resolve right-to-know complaints.
Permits a municipality to scan records that are to be retained less than 10 years into PDF format and dispose of paper copies.
Provides that Registers of Deeds shall not charge more than $1 per page for copies of documents. The bill also requires the records to be available online, to the greatest extent practicable.
Exempts building plans and construction drawings in connection with a local building permit process from the right-to-know law.
States that "members of the budget committee shall be entitled to all information necessary to perform their duties." This bill also states that "each member of the school board shall, upon request, be provided with all necessary information related to the compensation and benefits of school district personnel and school administrative unit personnel."
Allows the initial screening of applications for public sector employment in nonpublic sessions.
Clarifies the procedure for pro se litigants under the right-to-know law.
Establishes a commission to study cost of requests for information under the right-to-know law.
Requires the payment of attorney's fees to any person who brings a lawsuit to enforce compliance with the right-to-know law, unless the interested parties agree that no fees shall be paid. At the time of this bill's submission, fees are not awarded unless the court finds the person or body violating the law knew or should have known it was a violation.
Requires public bodies and agencies to compile, cross-reference, or assemble information into a form in which it is not regularly kept or reported if requested to do so by members of the public. Public bodies and agencies may charge the requestor the fair and reasonable cost of providing the requested documents.
Clarifies certain information which is to be included in the minutes of nonpublic sessions under the right-to-know law.
Requires the final votes on legislation before legislative committee to be by roll call and made available on the general court Internet site.
Requires discussion of strategy or negotiations with respect to collective bargaining or consultation with legal counsel to be recorded in the minutes a public body meeting.
Establishes a commission to study processes to resolve right-to-know complaints.
Permits the audio recording of a public servant performing a public function, and permits the interception of telecommunications or oral communication if at least one party consents to the recording. (As of the time of submission of this bill, all parties must consent to recording.)
Requires the Department of Safety to establish a database cataloging certain law enforcement activities, such as swat raids and drone use.
Forbids charging a fee for allowing a person to inspect a record that is immediately available, and allows agencies to charge for the costs of retrieval of some public records under the right-to-know law.
Limits the cost of obtaining a copy of a public record to the cost of the physical copy, without the cost of labor, and adds some information to the financial disclosure forms for public officials and legislators.
Requires public bodies to properly notify persons who are the subject of certain nonpublic sessions, and requires public bodies to review minutes of nonpublic sessions every 3 years to decide whether or not to keep the minutes sealed.
Prohibits any fee to inspect a government document, although a fee may be charged for the cost of a physical copy.
Allows agencies to charge for the retrieval of records under the right-to-know law, provided that it takes more than one hour to retrieve the records
Defines a "non-meeting" under the right-to-know law, including consultation with legal counsel, strategy or negotiations with respect to collective bargaining, a caucus among party members, and circulation of draft documents. Whenever a "non-meeting" occurs, the members must state the topic of the meeting, take attendance, and record the meeting time.
Declares that a public body or agency shall not charge a fee to view a public record either in-house or online
Requires the governor-elect to appoint an inaugural treasurer and report expenditures and contributions related to the inauguration.
Adds the Governor’s Office to the definition of “public body” under the right-to-know law, and also adds the Governor’s Office and the Legislature to the electioneering law which prohibits electioneering while in the performance of official duties.
Allows a school board to consider a student or pupil tuition contract in nonpublic session under the right-to-know law.
Prohibits the government from charging a fee for the inspection or delivery, without copying, of governmental records.
Requires some charitable nonprofit corporations to make a list of the names, titles, and towns or cities of residence of the members of its board of directors available to the public.
Makes names and addresses contained in license applications, other than professional license applications, exempt from the right-to-know law.
Prohibits schools from demanding access to a student's social media accounts. The bill was amended to also allow a school board to consider a student or pupil tuition contract in nonpublic session.
Allows non-public sessions to include consideration of security-related issues by the Commissioner of the Department of Corrections.
Requires any entity subject to an audit to submit biannual reports on corrective action, and requires state agencies to summarize the status of corrective actions on the state transparency website.
Establishes the right-to-know grievance commission.
Includes written correspondence in the definition of "meetings with legal counsel" for the purpose of the right-to-know law.
Clarifies the exception allowing a municipal body to go into nonpublic session when discussing litigation in which the municipality is involved.
Clarifies certain options relating to the immunization/vaccination registry, including the ability to opt-out, and exempts the registry from the right-to-know law.
Requires a vote to seal nonpublic session minutes take place during a public session.
Is NH transparent enough in its government operations?
NH passed a law this year requiring government officials to provide detailed reasons, in writing, when they deny a right-to-know request or delay fulfilling it. That change takes effect in January 2020. The Legislature also passed a bill eliminating any fees for looking over public records that haven't been copied. That bill makes an exception for records that need to be redacted.
Rep. Josh Yokela and Rep. Charlotte DiLorenzo have proposed new bills related to right-to-know laws about nonpublic sessions for 2020. Details of those bills aren't yet available. Contact Rep. Yokela and Rep. DiLorenzo to learn more.
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