Selectmen Continue to Impede Right to Know

At their October 16, 2017, meeting the board of selectmen (Lloyd Wood, Bill Marcussen, and Chip Albee) discussed adding an extra layer of bureaucracy to Right to Know requests. The Granite State News reported:

[Selectman Chip Albee] suggested that members of the public seeking information that is not readily available fill out a form stating their specific request, which will then be considered by the board.

According to the draft minutes of the meeting:

The Selectmen discussed handling of Right to Know requests. If information or a document is not readily available, a proper Right to Know request is to be submitted to the Selectmen for their review before information is provided.

I sent the minutes to David Saad, the president of Right to Know NH* and a member of the recently convened Legislative Commission to Study Processes to Resolve Right-to-Know Complaints, to get his perspective. David wrote back, saying: “Nothing in the Right to Know law requires that you fill out a form, nor does it require the requesting parties to identify themselves. The selectmen should not take any action that would defeat or delay disclosure required by the Right to Know Law.”

According to RSA 91-A:4 IV, a “proper Right to Know request” is merely a “reasonably described” request:

Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. If a public body or agency is unable to make a governmental record available for immediate inspection and copying, it shall, within 5 business days of request, make such record available, deny the request in writing with reasons, or furnish written acknowledgment of the receipt of the request and a statement of the time reasonably necessary to determine whether the request shall be granted or denied. [Emphasis added.]

The selectmen have no statutory authority to determine what a “proper” Right to Know request is or is not.

Unfortunately, the Tuftonboro selectmen’s secretary, Karen Koch, has also taken it upon herself to improperly interpret the law.

In June of 2016, Karen Koch wrote an email to Bob McWhirter, responding to a question he’d asked. Karen wrote:

I will be glad to respond to legitimate Right to Know requests that are requested in a respectful manner. If requests are neither legitimate Right to Know requests or asked in an aggressive manner, I will refrain from responding. [Emphasis added.]

There is no “ask politely” requirement in RSA 91-A. In an ideal world, we would all be polite. However, if Karen ever did refuse to respond to a Right to Know request because, in her subjective opinion, it was “asked in an aggressive manner,” then that would be concerning — and clearly illegal.

In fact, Karen did “refrain from responding” to a Right to Know request I made on December 12, 2016, and it’s not clear why. My request was for emails concerning the cancelled auction of town-owned properties that was to have been conducted on October 15, 2016, by the selectmen’s attorney, Richard Sager. Although RSA 91-A:4-IV, as quoted above, requires a response within five business days, I never received any acknowledgement whatsoever from the selectmen or from Karen. On October 4, 2017, I renewed my request. The selectmen have not yet provided me with the emails.

*I am a member of RTKNH. I joined after the selectmen sued me last year when I made a Right to Know request.

Update: I updated the first paragraph of this post because the selectmen have not yet made any decision about requiring the use of a form for Right to Know requests, but instead discussed it.

New Hampshire Moves One Big Step Closer to Enforcing Right to Know

From Right to Know New Hampshire:

Concord, NH
Nov. 2, 2017 –

Citizens in New Hampshire currently have little recourse but to resort to the courts to enforce their right to know when public bodies withhold public information or violate Open Meeting laws. Today New Hampshire took a big step forward in rectifying a situation that has ranked us 49th in the country for public access to information by the Center for Public Integrity.

On Tuesday October 31, 2017, at the Legislative Office Building in Concord, the Legislative Commission to Study Processes to Resolve Right-to-Know Complaints finalized its report for submission to the House, Senate, and Governor. It recommended the establishment of a Citizens’ Right to Know Appeals Commission to oversee an ombudsman. The report states “In lieu of filing a petition in the Superior Court under Chapter 91-A, the citizen may appeal to [the] Commission whose administrator will immediately refer the matter to the Ombudsman.” The ombudsman “acquires and reviews materials, conducts interviews if necessary, and issues a ruling within 30 days following receipt of the parties’ submissions…”

Right to Know New Hampshire President, David Saad, was one of the 13 study commission members. “I’m very pleased with the outcome of the study commission. New Hampshire very much needs a way of resolving right to know complaints without putting citizens through the cost and burden of taking their case to Superior Court. I urge the legislature to support the legislation that will follow this report and I firmly believe that the costs of an ombudsman will be more than offset by savings to the citizens, court system, and public bodies.”

Mr. Saad went on to praise the conscientious work of all the members of the study commission. “Under the leadership of Chairman Senator Bob Giuda, all members worked very well together as we were united in our mission to develop a process to help citizens resolve right to know grievances faster, easier, and cheaper. We had very productive debates which led, I believe, to a promising outcome, if it passes in the legislature.”

Right to Know NH is a non-partisan association of citizens committed to advancing government transparency.

I joined Right to Know NH after the Tuftonboro selectmen sued me when I made a Right to Know request. The selectmen ended up spending around $20,000 in taxpayers’ money trying to make it harder for citizens to get access to public records, but they lost their lawsuit.

Pictured: members of the Legislative Commission to Study Processes to Resolve Right-to-Know Complaints.