Public records that shed light on government’s actions are harder to get

Two years ago, a request for public records revealed an illegal and lucrative land deal in Webster between the town and the town treasurer. The treasurer was charged and can’t hold public office in Webster again.

In Nashua, a resident’s requests for public records won her a tax abatement after the state Board of Tax and Land Appeals found the city had assessed similar properties differently.

Last year, the Concord Monitor submitted records requests to every New Hampshire city and town for its Counting Cops investigation that showed the number of police officers in the state had grown much faster in the past two decades than the population and crime rate. Editor Jonathan Van Fleet believed the information was crucial to local budget and policy decisions.

“As budgets and tax pressures grow, there is a conversation to be had about how our resources should be allocated,” Van Fleet said.

Access to those kinds of records is getting harder under new local right-to-know policies and guidance the New Hampshire Municipal Association is giving local officials.

Based on the association’s advice, municipalities that once provided records by email are requiring people to collect documents in person during business hours, a requirement that can pose a challenge to people with disabilities, transportation issues, and daytime jobs.

The New Hampshire Municipal Association has also told public officials they can reply to requests from New Hampshire residents differently than those from out-of-state, telling Milford officials during an April training that there is “some basis” to read the right-to-know law as pertaining only to residents.

The association’s guidance is raising concerns among lawmakers, lawyers, and government accountability groups. There will be at least two bills next session aimed at strengthening the public’s access to records, one in response to the association’s new recommendations.

“I think that (association’s) advice and anyone adopting such changes are completely contrary to the constitution of New Hampshire, to (the law) 91-A, and to Supreme Court law in New Hampshire,” said attorney Greg Sullivan, who has represented media outlets and individuals in right-to-know cases. “It’s plainly wrong. The purpose of the right-to-know law is to make documents accessible to the public to ensure the utmost information is available to the public.”

Americans for Prosperity New Hampshire, a conservative advocacy group that objected to legislation last year that would have allowed municipalities to charge up to $25 an hour to search for records in some cases, agreed.

“In the end, the (New Hampshire) Municipal Association has to know that tightening access to government records is undoubtedly going to cause a legislative response,” said its state director, Greg Moore, in an email. “New Hampshire is considered one of the least corrupt states in America precisely because of the level of transparency and accountability that we have here and the Legislature knows that.”

The New Hampshire Municipal Association declined to make someone available for an interview, citing the staff’s workload preparing for its mid-November annual conference.

In an email, Executive Director Margaret Byrne pointed the Bulletin to sections of the right-to-know law and a 2017 state Supreme Court case involving a school district that make clear municipalities have a right to require someone to retrieve records in person, during business hours.

The justices also said the district’s concerns about cybersecurity threats had merit.

There is no agreement, however, on the second issue, denying out-of-state residents the same access to public records as given to residents.

The law sets no residency requirements. Some municipalities do.

Harrison Thorp, editor and publisher of The Rochester Voice, said he had long received public records via email from Rochester officials when the city’s attorney, Terence O’Rourke, reversed course in April and told him he’d have to review records in person, at city hall, during business hours.

The reason? While Thorp writes about a New Hampshire city and his news site is registered in the state, he lives eight miles away, in Maine.

“As you know, (the New Hampshire right-to-know law), which pertains to a public bodies (sic) obligation to send records to a requestor, only applies to citizens of New Hampshire,” wrote O’Rourke in an email. “Based on research, it is clear that you are not a citizen of New Hampshire and the ‘Rochester Voice’ is not a citizen of New Hampshire either. Unless you can provide proof of citizenship, I will no longer be providing you with governmental records.”

The city’s right-to-know policy ties its residency requirement to a 2013 U.S. Supreme Court ruling involving Virginia’s public records practices. The court identified New Hampshire as a state that restricts its right to public records to residents.

There is nothing, however, in New Hampshire’s right-to-know law restricting its freedom of information protections to residents. The law references only “citizens,” not New Hampshire citizens.

Attorney Stephen Buckley, director of the New Hampshire Municipal Association’s legal services, acknowledged that in an April training session with Milford officials, saying, “The statute does not define citizens.”

The Attorney General’s Office is even more clear in its guide to using the right-to-know law. It noted the law does not even require individuals to identify themselves when requesting records. “(The law) refers to ‘citizens,’ but the right-to-know law does not define this term,” it wrote. “Instead, the statute emphasizes accountability to ‘the people,’ accessibility to the ‘public,’ and the goals of a ‘democratic society.’ An agency should not, therefore, require persons requesting access to public documents to demonstrate that they are citizens of either New Hampshire or the United States.”

The state’s right-to-know ombudsman, Thomas Kehr, came to a similar conclusion in a decision earlier this month.

Thorp filed a complaint against the city with Kehr, asking that he find the city in violation of the right-to-know law. Kehr declined to decide that question because the underlying issue – whether the right-to-know law pertains only to New Hampshire residents – is undecided.

Kehr noted that only the state Supreme Court, as opposed to the U.S. Supreme Court, can interpret legislators’ intent behind state laws. Kehr encouraged the parties to ask the Legislature or state Supreme Court to resolve the issue.

“The matter at hand presents the aspect of RSA 91-A that has been most in need of clarification,” Kehr wrote. His decision illustrated the complexity of the question.

The law would allow easier access to New Hampshire residents living abroad who have little concern for civic affairs, he wrote, and less access for immigrants, who are not citizens but have permanent residency, pay local taxes, and actively participate in civic life.

“The (right-to-know ombudsman) is skeptical that this result was intended by the (Legislature) when it considered the language of RSA 91-A.”

Rochester’s current public records policy has been in place since at least 2019; Thorp said he’s lived in Maine since he began writing about the city in 2017.

It’s unclear why Rochester raised Thorp’s residency now. O’Rourke referred questions to the city’s public information officer, who was not available for an interview.

Elsewhere, public officials have cited massive records requests from out-of-state advocacy groups and businesses. Several pointed to SmartProcure, which requests months or more of purchase orders, for example, to compare what communities are paying for equipment.

Thorp believes city officials changed how they handle his records request because they dislike his editorials and reporting on two high-profile issues: allegations that a city councilor had sexually assaulted a current councilor and a former councilor, and a nearly $300,000 land purchase.

“I was so taken aback,” Thorp said. “I have been a journalist for 40 freaking years. I have never heard of this before.”

Public information ‘belongs to all’

The right-to-know law, state constitution, and legal precedent are adamant and unified in forbidding an “unreasonable” restriction to governmental documents and proceedings. But they give public officials discretion in how they provide those records.

They are not required to email documents but they can, and many do, including state agencies and some municipalities. The town of Hudson’s policy, which Buckley from the New Hampshire Municipal Association referred to as a good model at his Milton training, lists four ways to make records available: printed and picked up, emailed, loaded onto a USB drive, or mailed.

In October, the town of New Hampton announced on its website that it would no longer provide electronic copies of records on the advice of the association. Individuals must come to town hall to view the documents. Copies are provided for a fee, it said.

Interim Town Administrator Cecile Chase referred the Bulletin to the association when asked why the town made the change. She indicated the identity of the person requesting the records could be a concern.

“We certainly support open government and want to provide people the documents they are requesting,” she said. “But you want to be able to identify who is requesting that information. I believe what (the association) said is anybody can send an email query. Do you really know who is on the other end of that email?”

The state Supreme Court, however, said in a 2018 opinion that a person may have legitimate reason for not disclosing their name when requesting records, and can make a request through someone else, such as an attorney.

The justices cited an opinion handed down in 2008 that said: “Information that is subject to disclosure under the right-to-know law belongs to citizens to do with as they choose. As a general rule, if the information is subject to disclosure, it belongs to all.”

Van Fleet at the Monitor said its year-long investigation into law enforcement staffing would have been impossible if municipalities had refused to email their records. As it was, nearly half refused to provide documents or didn’t respond, leaving staff to track that information down in more cumbersome ways, Van Fleet said.

“If they are electronic records, and we live in an electronic age, to ask (public officials) to send electronic records electronically seems to make sense,” he said. “It doesn’t seem to be too much to ask. It’s like telling the post office to deliver the mail by horse and buggy.”

Katherine Kokko, president of Right to Know NH, which provides training and guidance on using the law, agrees the law allows municipalities to require in-person collection of records.

“Our position is that it is absolutely legal but we prefer to see towns using some direction and have some flexibility in how they (deliver documents,)” she said. “However, if this is being used as a way to make it more difficult to have access to information, it will get pushback from groups like ours.”

Gilles Bissonnette, legal director for the American Civil Liberties Union of New Hampshire, said they are seeing an increase in municipalities requiring people to collect records in person that could be easily emailed.

“Using our government transparency law to force people to collect documents in person that could be easily emailed is incompatible with the law’s purpose,” he said in an email. “This practice needlessly places a barrier to access public documents, and we hope it can be addressed at the Legislature.”

Rep. David Bickford, a New Durham Republican, does too.

Bickford attended a September training by the New Hampshire Municipal Association and was concerned to hear its lawyer say records should not be emailed. He will introduce a bill in January that would make clear in state law that there is nothing preventing municipalities from emailing records. Though they could still decline to.

“I just think the Municipal Association is leading us in the wrong direction,” Bickford said. “We don’t need to have the stumbling block of requiring people to show up in person. If they are asking you for something, just give it to them. It can be done electronically. We’ve been doing that for years.”

This story was originally published by the New Hampshire Bulletin

This article originally appeared on Portsmouth Herald: NH Municipal Assoc. makes it harder for public to get public records