Politics and Political Process

Protecting our Right to Know

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David Saad
- Rumney
Protecting our Right to Know

Our government belongs to us. Part I Article 8 of the NH Constitution articulates the citizen’s right to know what their government is doing. This right is further codified in the Right to Know(RTK) Law (RSA 91-A).
Yes, citizens have the right to know what their government is doing on our behalf. But, when that right is violated, the citizen’s ability to enforce that right is severely limited because of a number of enforcement barriers that exist. These enforcement barriers are:
• There is no government agency responsible for monitoring compliance or enforcing the Right-to-Know Law. When a citizen believes the law has been violated, enforcement of the law falls squarely on the citizen’s shoulders.
• The only option for enforcement is through the court system. Costs and legal complexities associated with filing a petition in court is a financial and emotional burden, and for some it’s simply prohibitive. Last year, the Center for Public Integrity gave New Hampshire the second lowest grade of F on Public Access to Information. NH ranked 49th out of 50. A key factor in that was the lack of any formal mechanism for appealing agencies rebuff [of] information requests. In such cases, a citizen’s only recourse is the court system.
• 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.
These enforcement barriers effectively function as toll booths along the enforcement highway on route toward the destination of equitable resolution and compliance with the RTK law. Many citizens simply run out of time and money long before they reach their destination.
This year, Right to Know NH authored three bills which have been introduced into the current session of the New Hampshire legislature to address these enforcement barriers.
HB178 establishes a commission to study processes to resolve right to know complaints. The objective of the commission will be to make recommendations which will:
1. Encourage resolution of right-to-know complaints directly between citizens and public agencies and bodies.
2. Reduce the burden and costs of right to know complaints on all parties including the citizens, courts, public agencies, and taxpayers
3. Increase awareness and compliance with the right-to-know law to minimize violations.

Several other states have established independent arbiters to help resolve right to know complaints and minimize costs for all parties. This commission is a good first step towards the establishment of an independent arbiter to hear and resolve RTK complaints which would allow for a streamlined and less costly RTK resolution alternative to our court system.

HB252 helps citizens who choose to enforce their rights through the courts by simplifying some of the rules regarding the admission of evidence by self-represented litigants.
As many citizens cannot afford the thousands of dollars required to hire legal counsel, they must petition the court themselves. To ease the burden on all parties, this bill will simplify the legal process by allowing the petition to also function as a request for admission of evidence. This bill also requires that the response by the defendant be provided several days prior to the court date allowing the petitioner sufficient time to process the response and adequately prepare for the hearing. This change also saves time which is critical since RTK petitions are given high priority on the court calendar resulting in very short court imposed deadlines.

“Ignorance of the law is no excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.” - Thomas Jefferson

RTKNH agrees and HB365 will ensure that citizens will be able to recoup all legal expenses incurred when they win in court by no longer allowing ignorance as a valid excuse for not paying attorney fees. The penalties for failure to follow the law must provide adequate deterrents to increase compliance. Always awarding attorney fees when a violation of the law is proven will create a more equitable deterrent against violations ultimately leading to greater compliance. With taxpayer money backing the governmental entity, this bill will also create a greater incentive for public bodies to settle RTK complaints before going to court. The Center for Public Integrity failing grade given to our state was due in part because “the law sets a high bar for the recovery of attorney fees and other costs”. This bill lowers the bar by removing ignorance as a valid defense against the awarding of attorney fees.

Our fourth bill, HB460, improves compliance by requiring that alleged violations that occur during a meeting and are identified by a member of the public body shall be recorded in the meeting minutes. Furthermore, when a member of a public body witnesses a violation of the RTK law during a meeting, they are put in a legally precarious position. If they speak up and the violation is not corrected, they could become a party to any legal action filed because of the alleged violation and suffer the consequences of personal liability including civil fines. Alternatively, the member could decide to leave the meeting and not be a party to any violation of the law. However, should they leave the meeting, they would be in no position to monitor and attempt to minimize the negative impact of the violation or thwart any further violations. This bill will provide that a member who reports open meeting violations will have immunity from personal penalty regarding the violation they reported. The objective of this bill is to allow a board member to continue to fulfill his or her duty on the board while having their alleged violation entered into the record. Testimony in support of this bill can be found here.

What you can do now:
Contact your representatives and ask them to support these bills. Let's work together to shine more light on the workings of local, county, and state government throughout New Hampshire.
Right to Know New Hampshire continues to work with the state legislature to strengthen the Right-to-Know law, help citizens exercise their right to know, and provide helpful resources through our blog for anyone interested in this fundamental right. To read testimony in support of these bills, learn more about the Right-to-Know Law, and the efforts by Right To Know New Hampshire to make government more open and transparent, please visit our blog: righttoknownh.wordpress.com

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