Originally Featured in NH Bar News
“Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental records shall not be unreasonably restricted,” says Part I, Art. 8 of the N.H. Constitution. The Legislature has further articulated that “[o]penness in the conduct of public business is essential to a democratic society.” RSA 91-A:1.
Amid declarations in support of accessibility and accountability, many were surprised by the results of a study conducted by the Washington, DC-based and Pulitzer Prize-winning Center for Public Integrity earlier this year. The Center conducted a 50-state survey of open-access laws, transparency and accountability in government. We did not fare well in the Granite State. In fact, we scored pretty close to the bottom. Among other things, the study noted concern over uniform administration of our Right-to-Know (RTK) law and lack of a strong enforcement mechanism for aggrieved citizens.
Such concerns aren’t merely academic, especially given that nefarious intent need not exist to deny a citizen their lawful right of access to public records. For example, lawyers representing a large municipality recently and publicly told officials they could not charge a citizen who sought to inspect and copy public records with the citizen’s own equipment (e.g., a cell phone). This was the second such admonition within six months, and resulted in a refund of fees the citizen had been charged. Of even greater concern may be the plethora of smaller communities, town commissions and committees which do not maintain full-time or in-house counsel, and only rely on legal professionals on an ad hoc basis.
Last month’s edition of the Bar News included a great article on recent case law and the few RTK law amendments to survive the most recent legislative session (“The NH Right-to-Know Law: A Year in Review” by Stephen C. Buckley and Margaret M.L. Byrnes of the NH Municipal Association). Though headed in the right direction, it is unlikely that these minor changes will do much to move us up the national rankings. Here are some observations and possible reasons why.
The current RTK statutory framework lacks adequate deterrent. Some protective legislation has real teeth. Take RSA 540-A, for example, which prohibits certain practices in the landlord-tenant relationship. When a landlord commits a technical or even inadvertent violation of 540-A, they’re on the hook for at least $1,000, plus the plaintiff’s legal fees and costs. In addition, each day that the prohibited practice continues constitutes a separate violation. Ouch.
Compare that with RTK violations, which are arguably of far greater public concern than the average landlord-tenant relationship. RTK violations face significantly less austere penalties. Under the RTK law, costs may be awarded only if the Court finds that such lawsuit “was necessary in order to enforce compliance or to address a purposeful violation.” Additionally, legal fees are never awarded unless the Court finds that the government entity “knew or should have known that the conduct engaged in was a violation.”
The high bar for recovery of legal fees surely impacts the ability of the litigant with limited means to secure counsel and justice in such cases. Many members of the bar – myself included – have accepted RTK cases on a pro bono or reduced-fee basis over the years. But what about the cases we haven’t taken?
Moreover, other barriers exist for those litigants who choose or are forced to proceed pro se. Sticking with the landlord-tenant comparison, any aggrieved tenant may file a 540-A petition against their landlord in district court or superior court. Per statutory mandate, there is no filing fee for a 540-A petition. By contrast, the Superior Court remains the exclusive forum for adjudicating RTK violations, and the usual filing fees apply.
Many states have adopted stronger mechanisms to promote and incentivize open-access, transparency, and accountability. Utah law, for example, provides citizens the right to appeal a denied request to a standing state commission – a commission which incidentally includes members of the news media. If the denial is affirmed, the citizen may then seek de novo judicial review. Additionally, the Hawaii Legislature created an independent Office of Information Practices, fully armed with the authority to order compliance and disclosure by government agencies on behalf of a citizen whose request was inappropriately conditioned or denied. By statute, the prevailing plaintiff always receives a legal fee award; knowing or intentional violations by government agencies mandate a statutory minimum award of $1,000 (in addition to legal fees and costs). That sounds like a deterrent.
Despite meaningfully stronger models in other states, major reform efforts in New Hampshire rarely get off the ground. Strangely, legislative proposals in recent years to create an arbiter separate from the judicial system were virtually dead on arrival. Though they won’t be adopted overnight, we should be having serious conversations about major RTK law reforms both to incentivize compliance as well as eliminate barriers for citizens who seek enforcement.