Rachel Ford

GSNC/NHPBS

The State We’re In program

It’s Sunshine Week, the annual initiative spearheaded by the News Leaders Association to educate the public on open government and the dangers of excessive secrecy. Gilles Bissonnette from the American Civil Liberties Union of New Hampshire, Right-to-Know New Hampshire’s Carla Gericke, and Concord Monitor reporter Cassidy Jensen discuss New Hampshire’s Right-to-Know Law, how it’s applied, and how it can be improved with The State We’re In host Melanie Plenda.

This content has been edited for length and clarity. Watch the full interview on NH PBS's The State We’re In.

Melanie Plenda: Gilles, let's start with you. Can you give us some background on New Hampshire's Right-to-Know law?

Gilles Bissonnette: We've had our Right-to-Know law codified in statute for decades. It was put into statute back in the late sixties, or around the time that a similar statute was being enacted at the federal level: the federal Freedom of Information act. What's really unique about New Hampshire is that the transparency provisions in our Right-to-Know law don't just exist in statute; they're also enshrined in the New Hampshire constitution, and that change was made in the late seventies. It’s a core New Hampshire value that we should be having as much transparency as possible, and an open government so we can see what our government officials are up to. It really reflects just how serious New Hampshire takes it as a value.

Melanie Plenda: What are the highlights from some of your more recent cases involving the Right-to-Know law?

Gilles Bissonnette: I took the job as the legal director of the ACLU of New Hampshire back in 2013, and one of the things that I noticed very quickly is because of some developments in the law due to some court decisions, my organization and the general public couldn't get access to police disciplinary records. That was really concerning, so we decided after several years to litigate some cases on that issue to try to see if we can get that information opened up, and we think it's critical. Police are really unique public figures. They have the ability to use lethal force, they have the ability to arrest individuals and deprive them of their Liberty and their testimony alone can cause individuals to spend significant periods of time in jail.

When a police officer is disciplined or may have a pattern of misconduct or pattern of discipline, we think the public should have access to that information, especially where these police officers are paid for by us, the taxpayers. We litigated a series of cases and the Supreme court held in May of 2020 that police personnel records and, more broadly, public employee personnel records are categorically secret and that if the public interest is high enough, that information should be released. Our office is really proud of those wins. Subsequent to those decisions, we have been litigating police misconduct cases, and generally have obtained a lot of information that no one could get access to in the state of New Hampshire for nearly 30 years.

Melanie Plenda: Very often the public sees Right-to-Know laws and requests for documents as just something that journalists or officials do, so Carla, how would you explain to people why it’s important? Why is it important that we have this law, and that the general public know about this and what their rights are? How can this impact their everyday lives?

Carla Gericke: I think technology has given us an opportunity to be able to create real-time evidence that can both support the police in some scenarios, but also protect citizens against situations where maybe there is some malfeasance happening. The way I look at it is the more open, transparent, and honest people and society are, the better off we are as a society. It's very difficult to keep anyone accountable if you don't know what they're doing. I think in the Washington Post, they say ‘democracy dies in darkness.’ The darker it is or the more we don't know what's happening, the more people can get away with things.

Transparency gives us an opportunity to identify problems earlier and to address them earlier. The more we know, we can start to be more proactive in situations where perhaps there is a problem. We can identify, say in the scenario of police officers, a troubled police officer that does not need to be serving, or in the case of the municipality, it's just a way for us as citizens to know what the government is up to so that we can hold them accountable. It should be something the government wants to do for the same reason, because the better we know what we're doing, the better we can function.

Melanie Plenda: You've been working with Right-to-Know New Hampshire now for more than four years. What are some of the most common questions you get about Right-to-Know requests?

Carla Gericke: The number one question is ‘how do I file a right to know request?’ It is fairly simple, and people can go to our nonpartisan website and look it up. You want to be fairly specific about what you're asking for, and I personally think you should do it in writing, whether that's an email or a letter. You could do a phone call and then follow up with a written request. We also get a lot of really specific personal issues that might have to do with land ownership easements, nonpublic sessions, and school board issues.

Melanie Plenda: Cassidy, you're working on a groundbreaking series with the Concord Monitor, the Granite State News Collaborative, and MuckRock. Can you tell us about that series and the hundreds of Right-to-Know requests involved?

Cassidy Jensen: The idea here is that we wanna document the growth of New Hampshire's police departments over the past 20 years. We know that the number of full-time officers has increased at a rate faster than the population has increased but there's no place where you can see what departments have grown the most over time and which have maybe shrunk. There was no one who was collecting data on just how much the police force has grown in the state. The only way for us to do this was to individually ask police departments. This project actually started before I joined the Monitor and the Granite State News Collaborative. 

A researcher at MuckRock news sent out the majority of these requests, and what we were asking for was three main things from police departments, from sheriff offices, and from the state police. First of all, staffing information: just how many officers did departments have at any point in time between 2000 and 2020? Secondly, we also wanted to know the demographics of those officers: the race, the gender, and the age of those officers, just so we could see over time how the demographics have shifted and how the makeup of these departments shifted. Finally, we asked for funding and budget data, and we went beyond just asking for the line item in the general fund that says ‘police’ and wanted to get a full picture of what municipalities are spending on their police departments - that includes grants, donations, and sometimes capital expenditures like buying a new police cruiser.

We made this identical request sent out to over 240 different agencies via MuckRock, which is a really great nonprofit news site and a helpful tool for anyone who's making public records requests in any state. What that allowed us to do was track all of the different requests in one place. MuckRock helped direct the request to the specific place, the email address, mailing address, or fax number in some cases that the request needed to go to, and then did these automatic follow ups; we sent out these requests, and they're supposed to respond within a certain timeframe. We found that that was often not the case. We had to do a lot of manual follow ups to make sure that departments actually responded.

What's going to happen now is we’re in the process of going through this data. I'm chasing down the last departments and doing some reporting on what this means, what we are seeing, which departments have grown the most and what that means for the state and the communities where these departments are. There'll be a series coming out based on that data soon, although I don't have an exact date just yet.

Melanie Plenda: Gilles, what's the remedy for journalists and everyday citizens when they're getting rejections, or possibly an error to a Right-to-Know clause?

Gilles Bissonnette: There's really only one remedy that's memorialized in the statute, and that's to go to court, and that takes money. You have to pay a $280 filing fee, and you can do it without a lawyer. If you want to go down that path, it's an intimidating process and requires privilege and knowledge of the law. In fact, there's an effort at the legislature now to create an alternative dispute resolution mechanism through an ombudsman bill to make sure that there's another vehicle out there for the public to try to push municipalities a little bit harder to comply with the law. We litigate a lot of these, and it can be intimidating for citizens, but that's unfortunately the only mechanism that exists right now.

Melanie Plenda: Carla, how about your group? Are you generally supportive of that as well?

Carla Gericke: Right-to-Know New Hampshire is supportive of the ombudsman bill and works very hard on trying to champion it and push it through. It's a bipartisan bill, which is nice to see, because this is one of those issues where you can really say there shouldn't be any reason why we can't all work together for something that we, as citizens, think we need. Instead of doing the $280 filing, you would pay a nominal $25 filing fee. It would go to the ombudsman, they have a certain amount of time to respond to these requests, and then the hope is that it would be cheaper and faster than the system we currently have, but HB 481 still has to pass the Senate. If people are interested, they could let their legislators know that this is something they think would be helpful. It would reside under the Secretary of State.

Melanie Plenda: You all have experience with the ins and outs of the Right-to-Know laws. Carla, starting with you, what about it works? What about it doesn't, in your opinion? yWhat could change? 

Carla Gericke: What works is that it exists. I'm of the mindset that the 91A actually tends to restrict the rights we have under the New Hampshire constitution, which is fairly broad and says we should have open, transparent, accountable, and accessible government. I always wonder about that tension between the constitutional right, and then this RSA 91A that tends to slightly reduce our rights, in my opinion. I think the main area where it's not working is the arbitrariness of how we're treated in different municipalities, in different districts. I do think there should be an onus on the New Hampshire Attorney General's office.

In fact, we just submitted from Right-to-Know New Hampshire a request that they update their memorandum that they brought out in I think it was 2015. There was a 138 page memo that said, ‘this is how we do Right-to-Know in the state of New Hampshire,’ and that hasn't been updated since we had all these transparency victories in the courts. I think we need to address the arbitrariness, and I think that needs to come from leadership and from the Attorney General's office. If the governor, whether Republican or Democrat, is claiming executive privilege to not be subjected to this, that mindset needs to change as well.

Melanie Plenda: Gilles, how about you?

Gilles Bissonnette: I think it's a good statute but what I am hopeful of is that going forward through training, through advocacy, through litigation, is that government officials don't look at our Right-to-Know statute as a secrecy statute where they're just trying to withhold information and that instead they look at that statute as a disclosure statute where the default position should always be disclosure. That's why we're doing a lot of this work, and there's been a lot of progress, but there's still a lot of work to go. I'm writing a brief with respect to the state police's decision to withhold information concerning a trooper who was terminated for misconduct. 

Melanie Plenda: Cassidy, how about you?

Cassidy Jensen: In theory, it's a really great law. The preamble says it's meant to ensure the greatest possible public access, but it can only be enforced in court. For most ordinary citizens or even some newspapers that can get really expensive really quickly. There's not really a mechanism if someone goes to court against a certain municipality, that municipality can go right back and keep incorrectly responding to requests right after that, and would need to be brought to court again. Another thing is this view that I've seen city attorneys take, looking to carve out exemptions and view the law as narrowly as possible, or are looking to say we're not required to provide this.

I've seen this with cities that will refuse to send records via email. They're not technically required to, but it makes things a lot easier and cheaper. If they're willing to email documents, that's more in the spirit of greatest possible public access. I think there could be more balancing there from agencies that are responding to requests on the side of transparency. I've also encountered this with the governor's office and executive privilege and the courts; there is under the constitution this responsibility not to restrict access, but there's a lot of leeway there and a lot of room for debate. I'd love to see more weight given to the public's real interest in the disclosure of a lot of this information.

These articles are being shared by partners in The Granite State News Collaborative as part of our race and equity project. For more information visit collaborativenh.org.