Right-to-know requests could become costlier under proposed bill

By: - December 15, 2022 5:55 am

The New Hampshire Constitution calls on government to make public records available and not “unreasonably restricted.” (Screenshot)

Last year, a Webster couple won a first amendment award for uncovering wrongdoing in their small town that led to the resignation of town treasurer Bruce Johnson. Through multiple right-to-know requests, they revealed that the town had quietly sold Johnson town property valued at $44,000 for just $7,000. 

After fighting the public records request, the town turned over more than 100 pages of documents that revealed Johson had violated a town policy barring public officials from “certain private dealings.” He was charged with a misdemeanor and fined $1,200. 

Obtaining governmental records through a right-to-know request would become more costly under a proposed bill headed to lawmakers next year. In addition to charging for copies, state and local governments could charge up to $15 an hour to search for, assemble, and redact records. 

New Hampshire is the only New England state without such a fee. The bill’s sponsor and the New Hampshire Municipal Association say a $15 hour rate is necessary to recover the steep cost of fulfilling what they described as overly broad, time-intensive requests intended to inconvenience government agencies, not hold them accountable. 

A similar bill never made it out of the House in 2016. The ACLU of New Hampshire, the New Hampshire Press Association, and the libertarian conservative group Americans for Prosperity are among those who oppose the latest attempt. The citizen-led Right to Know NH, whose volunteers train and assist people with right-to-know requests, expects to as well after members discuss the legislation, said Katherine Kokko, the group’s interim president.

Public records requested under RSA 91-A, the state’s right-to-know law, have been used in this state to uncover police misconduct, reveal conflicts of interest, and make performance reviews of superintendents and city managers more public.

“It is an incredibly problematic law that, if enacted, would have a devastating impact on transparency and government accountability,” said Gilles Bissonnette, legal director at ACLU New Hampshire. “It is going in the opposite direction of where we should be going, which is making New Hampshire more transparent. We’re going to strongly oppose this bill along with a robust coalition of stakeholders.”

Bissonnette argued the public, not the government, owns the records and is obligated under the state constitution to ensure public access to them is not “unreasonably restricted.”

The New Hampshire Press Association, which represents the state’s media outlets, said Tuesday it will also oppose the bill.

“The (association) is highly skeptical of any legislation that would create any barrier to the public’s right to know as guaranteed by the New Hampshire Constitution,” said President Brendan McQuaid. “Whatever the intent of this proposed legislation, we hope that our fine representatives in Concord will steer well clear of trampling on the exercise of constitutional rights with the implementation of potentially burdensome and arbitrary fees and judicial action.”

The bill was drafted by Rep. Michael Cahill, a Newmarket Democrat, and the New Hampshire Municipal Association at the request of town and city officials who have spent significant time and money fulfilling right-to-know requests.

Governor Wentworth School District has posted the nearly 25 right-to-know requests it’s received since 2021. In several cases, the person who filed the request did not pick up the documents. That includes one person who asked for all course materials used by one fifth grade teacher, “including curricula, reading lists, and copies of all posters, pictures, or other items that are present on the walls, desks, and bookshelves, or otherwise present in (the) classroom.”

Natch Greyes, government affairs counsel for New Hampshire Municipal Association, cited a case in Claremont where the city spent four months fulfilling a request for six months of emails between the city manager and eight of the nine city councilors. Collecting the nearly 8,000 emails and attachments and hiring a law firm to redact them cost the town nearly $30,000, Greyes said. 

Dover officials received an even broader request in 2020, he said. 

It sought “all email threads from 2015 to present – across the @dover.k12.nh.us email domain.” Even after the person who submitted the request narrowed the scope, it generated 18,000 pages of documents, all of which had to be carefully reviewed to protect student and employee confidentiality, Greyes said.

The city had spent a year on it when the person withdrew the request. This year, Dover officials got a request for two years of payroll records for 40 full-time employees. The request produced over 16,000 documents that needed to be reviewed and redacted, Greyes said. 

“We’re not trying to discourage any kind of oversight of how government conducts its business,” he said. “What we’re trying to do is to cut down on what I would characterize as fishing expeditions where people come in and ask for a huge amount of records and don’t show up to pick them up or don’t actually have an interest in them.”

Greg Moore, state director of Americans for Prosperity’s New Hampshire chapter, disagrees.

“As an idea, it undermines transparency and creates a major barrier to holding government accountable,” he said in an email. “While organizations like ours can afford this cost, where this would truly have an impact is on putting the spotlight on local governments, where citizens will largely lose the ability to have meaningful access to what’s going on, due to the potential prohibitive costs. If sunlight is truly the best disinfectant, this legislation is about spreading disease.”

Under the proposed bill, agencies and municipal offices could not charge for the first hour of a records search and would have to provide the person or group filing the request an estimate of how long it will take to provide the documents. 

The bill does not say when payment would be due, but Greyes said he’d favor it be before a search began. If an agency or municipality deemed a request as too broad, they could ask a court to intervene. Under the bill, the court could uphold the decision to deny or limit a record’s request or require the documents be provided. 

The bill’s proposed $15 hourly rate is less than in Maine and Massachusetts, which can be as much as $25 an hour. But Maine waives the fee for the first two hours of a search; Massachusetts waives it for the first two to four hours, depending on what public office is fulfilling the request.

In some states, all fees can be waived in certain circumstances.

Laws in Maine and Massachusetts allow it when someone is indigent or the disclosure of a requested record is in the public interest because it is likely to help the public understand the operations or activities of the government. 

Cahill’s bill does not include an option to waive the fee.

Greyes said he expects “99.9 percent” of records requests will take less than an hour and incur no charge if the legislation passes. Attorney Greg Sullivan, president of the New England First Amendment Coalition’s board of directors, disputed that. Sullivan has long represented the New Hampshire Union Leader and citizens in right-to-know cases. 

“We have requests pending where the agency has said we need 30 days to do our searching. Lord knows why,” he said. “I totally do not believe that assertion that 90 or whatever number they said would be resolved with one hour of searching. That’s just not been my experience over the years.” 

Sullivan noted that the state Supreme Court has upheld the right of public bodies to charge for the actual cost of copying records, such as expenses for paper and a copying machine; communities generally charge 25 cents to $1 a page. 

If the legislation becomes law, Sullivan said he would expect a legal challenge to its constitutionality given the state constitution’s requirement that governmental proceedings and records not be unreasonably restricted. 

“It’s a great mandate to understand that we are the government. We the people own the government, we own the copy machines,” he said. “The Constitution and the preamble say these public employees are our agents and servants. You just have to read Part 1, Article 8, read the preamble (the right to know law), and that tells all of us that the government has a duty to be as responsive as they possibly can be. And I see this bill as a roadblock to that accountability.”


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Annmarie Timmins
Annmarie Timmins

Senior reporter Annmarie Timmins is a New Hampshire native who covered state government, courts, and social justice issues for the Concord Monitor for 25 years. During her time with the Monitor, she won a Nieman Fellowship to study journalism and mental health courts at Harvard for a year. She has taught journalism at the University of New Hampshire and writing at the Nackey S. Loeb School of Communications. Email: [email protected]