Should NH create an easier process outside the courts for right-to-know complaints?
The New Hampshire Constitution guarantees a right to access government records and the state's right-to-know law puts this right into practice. If an official blocks access, however, a citizen has to file a lawsuit to resolve the complaint. This year the Legislature is considering a new way to handle right-to-know complaints: the Right-to-Know Ombudsman.
Why would NH need a Right-to-Know Ombudsman?
There are many examples of citizens, journalists, and advocates using the state’s right-to-know law to uncover official misdeeds. For example, the ACLU of NH and six New Hampshire news outlets sued under the state’s right-to-know law to reveal a list of law enforcement officers with credibility issues, known as the Laurie List. In another recent example, Tara Gunnigle and Jon Pearson of Webster used the state’s right-to-know law to uncover an illegal sale of public land to the town treasurer.
The Laurie List lawsuit took more than three years to resolve, while Gunnigle and Pearson worked more than a year to uncover the truth. Most of your average citizens don’t have the will or resources to carry on a case that long.
State and local governments also have to foot their side of the bill, whether it’s time to search for records or money to pay lawyers.
In 2017 the Legislature established a commission to study processes to resolve right-to-know complaints, particularly the high cost to citizens. They ultimately recommended a new office to handle the process outside the courts: the Right-to-Know Ombudsman.
Since 2017 the Legislature has considered and rejected several bills to establish the office of the Right-to-Know Ombudsman. This year’s bill, HB 481, seems like it might finally pass.
How would a Right-to-Know Ombudsman work?
Under HB 481, a person could file a right-to-know complaint with the ombudsman for a $25 fee instead of filing a lawsuit in superior court. The ombudsman would have the power to waive the fee if the person could not afford $25. The complaint would have to include the original request to a government agency or official as well as the agency’s or official’s response.
The government agency or official would then have 20 days to respond to the complaint with any information justifying their refusal of the right-to-know request. The state right-to-know law does exclude information that could hurt privacy or public safety, such as unique student information or cybersecurity plans.
The ombudsman would have power to call hearings and interviews, request information, and ultimately order a government agency or official to grant access under the state’s right-to-know law. The ombudsman would have 30 days to make their final ruling.
Either the individual or the government agency or official could appeal the ombudsman’s ruling in superior court.
The governor would appoint the ombudsman, with approval from the Executive Council. The ombudsman would have to be a lawyer.
Arguments for, against a Right-to-Know Ombudsman
Supporters of the Right-to-Know Ombudsman argue it will create a faster and more cost-effective route to resolve right-to-know complaints. This will improve government transparency and citizens’ access to government documents. It will also lower costs for government agencies that might otherwise have to pay to defend themselves in court.
Maine has had a similar Public Access Ombudsman since 2012.
Opponents of HB 481 are concerned about costs to run the office, especially if there is a flood of complaints. At that point the state would either have to pay to increase the size of the office or it would take longer and longer to resolve a complaint.
Those opponents of HB 481 have suggested instead increasing penalties for illegally denying right-to-know requests. If citizens then abuse the right-to-know process by flooding offices with unjustified requests, the state could also create penalties for filing frivolous requests.
Share your opinion on HB 481
Do you think New Hampshire should have a Right-to-Know Ombudsman, or are you concerned about unintended consequences and costs? Whatever your opinion, you can share it with the Senate Judiciary Committee at a public hearing on March 8 in Room 100 of the Statehouse at 1:15pm.
If you can’t attend the public hearing in person, you can register your opinion online by going to the Legislature’s homepage (gencourt.state.nh.us). Scroll down to click "Senate Remote Sign In," select the date of the hearing (March 8), the committee hearing the bill (Judiciary), and the bill number (HB 481). From there share who you are and what your opinion is.
Update: Gov. Sununu signed HB 481 into law. Click here to explore the latest legislative proposals related to government transparency.