Sununu signs bill to create an office of right-to-know ombudsman

Jul. 9—A bill Gov. Chris Sununu recently signed into law could improve government transparency by making it easier and cheaper to file an appeal when a municipality or state agency denies a public records request, backers of the measure said Friday.

House Bill 481, signed by Sununu on June 24, establishes the office of right-to-know ombudsman, who could order the release of government documents in cases where the original request was turned down.

It would cost $25 to file such an appeal with the ombudsman, whose decision could be appealed to a superior court.

N.H. Sen. Jay Kahn, D-Keene, said he supported the measure, which passed in voice votes in the House and Senate in May and won strong backing in committee.

"We should always aim to be transparent about the decisions of government," Kahn said.

He compared the ombudsman to a state board the Legislature established during the 2020 session that allows appeals of decisions of municipal planning boards and boards of adjustment.

Kahn said having state boards and offices like this can increase government accountability and their mere presence can lead to better local decisions.

Laurie Ortolano, president of Right to Know NH, called the new law "a big victory for transparency."

"I'm most pleased that it received bipartisan support, that there was an opportunity to see both sides work together for the greater good of the citizens."

The ombudsman process alters a system in which appeals of public records decisions had to be filed directly in superior court, which is more costly, time-consuming and complicated, Ortolano said.

She said she personally incurred $178,000 in costs to wage a court battle after Nashua refused her public records requests involving the city's assessing system.

Hillsborough Superior Court ultimately found in her favor on most points in her two-year public records battle, including awarding her attorney fees, but now the city is appealing to the N.H. Supreme Court, Ortolano said.

Gilles Bissonnette, ACLU-NH legal director, filed written testimony with the N.H. Senate Judiciary Committee for a March 8 hearing on HB 481.

He said it costs $280 to file a right-to-know lawsuit in court and litigating such disputes can be "incredibly expensive."

At least 13 states have an ombudsman process for public records request appeals, he said.

"The Center for Public Integrity in 2015 evaluated the public records laws of all 50 states as part of its State Integrity Investigation," he said. "In evaluating 'public access to information,' New Hampshire earned an 'F' grade and ranked 49 out of all 50 states.

"In evaluating whether requesters can resolve appeals to access-to-information requests within a reasonable time period and at no cost, the report gave New Hampshire a 'zero.' "

The bill, which took effect July 1, was introduced in January 2021 and underwent various work sessions and revisions. The governor and Executive Council will select and confirm the ombudsman, who must be an attorney.

The fiscal note on the bill said that for the past four years, a total of 67 court complaints were filed over the denial of public records requests in New Hampshire.

The note said the costs of the ombudsman system were indeterminable. Fewer records request appeals may be filed in court, and this could reduce court fees, but could also cut costs for litigants, including municipalities.

However, the simpler ombudsman system could lead to more records request appeals, and it's not clear how many of these would be re-appealed to court, the note said. The salary of the ombudsman would also be an expense, which would come from state treasury funds not otherwise appropriated.

Rick Green can be reached at rgreen@keenesentinel.com or 603-355-8567.