Those seeking records from public agencies face three primary hurdles
By Annmarie Timmins, Granite State News Collaborative
New Hampshire cities and towns are required by state law to give the public access to public records. Many do so upon request. Many others fight the request all the way to court or take ages to respond.
It took months and costly lawsuits to obtain Nashua tax assessment records, disciplinary reports against a fired Claremont police officer, details of state police actions against minors at a youth detention center, and the number of immigration arrests at New Hampshire’s border with Canada.
Why can it be so difficult to get public records in New Hampshire and beyond? The reasons are many — from fear of releasing the wrong records, to disregard for the law, to sweeping and costly requests. The first line of the state’s right-to-know makes clear why pursuing records and access to meetings — even when it’s difficult — is so important:
“Openness in the conduct of public business is essential to a democratic society. The purpose of this (law) is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.”
There are three primary hurdles to getting public records.
Uncertainty
In some cases, public officials fielding a records request may not understand their obligations under the state’s right-to-know law, err on the side of caution, and refuse to release information.
You might direct them to the New Hampshire Municipal’s Association guidance on complying with the law or the New Hampshire Attorney General’s 150-page explanation of what information they must — and cannot — provide.
But the Attorney General’s Office acknowledges its detailed guide won’t resolve every uncertainty. In doubt, the agency advises municipalities to consult with their lawyers.
Deny and ignore
The city of Rochester denied the editor of the local newspaper, The Rochester Voice, access to some documents in 2023 because the editor lives just over the border, in Maine. The city argued the law applies only to New Hampshire residents because it says “every citizen” has the right to access public records.
Editor Harrison Thorpe appealed the decision to the state’s right-to-know ombudsman. While the ombudsman agreed with Thorpe, he acknowledged only the Legislature or N.H. Supreme Court had the authority to legally interpret the law’s language. (The ombudsman’s office was discontinued this year.)
A lower court judge affirmed the ombudsman’s decision but concluded his authority was also limited. A legislative effort to change references to “citizen” to “every person” failed this year.
Thorpe said in an interview that Rochester officials continue to limit his access to records or to ignore his requests. He said he does not get that resistance from other officials. Given his tiny staff, Thorpe said he’s unable to keep fighting Rochester for access.
“I just don't have that kind of time,” Thorpe said. “Everything that happened has been for naught.”
Broad requests and high costs
Specific and narrow right-to-know requests can be fulfilled fairly quickly. How many people does the school district employ and what are their salaries? Or a list of the properties the town has taken for unpaid taxes and plans to sell.
But requests run the gamut, and an increasing number of sweeping requests slow down municipalities’ ability to respond to even the more narrow requests.
In about a five-week period this spring, the Governor Wentworth School District in Wolfeboro received four right-to-know requests, according to its public tracker.
On the narrow end, one person wanted the names of potential school board candidates and another requested the superintendent’s conract. The other two were much broader: a list of all books in a particular school library and all the district's purchase orders for the last five years.
The latter, from an out-of-state commercial information technology company, was specific:
“Please provide this info for each purchase order: Purchase order number or equivalent, Purchase date, Vendor ID or equivalent Vendor name, Line item details, Line item quantity, Line item unit price, Line item total price.”
Margaret Byrnes, executive director of the N.H. Municipal Association, which advises local officials, said those kinds of expansive requests can take employees many hours or days to complete and may require input from the municipality's attorney, both of which carry an expense.
“Often what we see is the same template request will go out by email to a huge group of towns for some kind of information, like building permits because they sell solar (panels) or registered dog owners because they sell pet products,” said Byrnes. “I think we can all agree that's not what we had in mind when the right-to-know law became what it is, especially because we as taxpayers are funding the activity to respond to those right-to-know requests.”
Lawmakers have tried to address this in recent years by proposing charging for the cost of fulfilling requests and completing redactions. Currently, municipalities can charge only for the cost of copying records or a thumbdrive for documents provided digitally.
Two recent legislative efforts would have allowed municipalities to charge up to $25 an hour for more complex requests. The N.H. Press Association, ACLU of New Hampshire and Right to Know NH worked lawmakers to reduce the proposed fees considerably.
The new law drops the hourly fee and allows municipalities and agencies to charge a modest amount for electronic communications, such as emails and text and chat messages. There is no charge for the first 250 communications, and the fee can be waived in some cases. The law is aimed at commercial requesters seeking documents for business purposes.
The law also allows public officials to suggest a request be narrowed if doing so would allow the municipality to turn around the request more quickly. Some do, saying it benefits both parties.
This story is part of Know Your News — a Granite State News Collaborative and NENPA Press Freedom Committee initiative on why the First Amendment, press freedom, and local news matter. Don’t just read this. Share it with one person who doesn’t usually follow local news — that’s how we make an impact. More at collaborativenh.org.
