Right-to-Know Advocate: N.H. Needs Independent Arbiter To Hear Complaints

Mar 16, 2017

  It’s Sunshine Week, a nationwide event organized each year by the American Society of News Editors to highlight the public’s right to know about how their government operates.

David Saad is president of Right to Know New Hampshire, a nonprofit organization that advocates for greater transparency in government.

He is doing a presentation at a Sunshine Week event in Nashua Thursday night on issues relating to the public’s Right to Know. That gets underway at 6 p.m. at the Hunt Memorial Building.

Saad joined NHPR's Morning Edition to talk about the issue.

Every state has its own version of Right-to-Know law. How do you think New Hampshire is doing when it comes to transparency and open government?

New Hampshire is doing OK, but it depends on the specific area. For example, the Center for Public Integrity gave New Hampshire a grade of “F” in the area of public information. And a big reason for that poor grade is, one, we do not have any kind of independent arbiter set up within the state, so if a citizen has an issue with exercising their right to know, they have no one to turn to, there’s no organization. No recourse, other than to go to court.  And so they have to file a petition in court against whatever public body they feel they’ve been aggrieved by. Many other states have some kind of independent arbiter. You might go to the attorney general for example and file a complaint against a school board or board of selectmen. There might be an independent organization set up where you can file a right to know complaint and have it heard outside a formal court process.

Why are we one of the states without that independent arbiter?

It’s not for a lack of trying. Our organization for the last four years has put forth bills in the legislature to try and accomplish that. And every year, it’s failed. This year, we took a position, since we’ve had such difficulty in accomplishing that, we put forth a bill, HB 178, which will establish a commission to study the process of how best to resolve right to know complaints.

Are we seeing more issues of local town and city officials refusing access to records? Or is this more of a state issue?

It does exist at all levels, but I think what we’re seeing is probably more at the local level. And some of that is probably attributed to, one, there are more local governments, in terms of we have 200-plus cities and towns, and then you’ve got hundreds of school boards versus at the start and county level, there’s fewer entities. I think another aspect is at the state or say county level, you have public employees and because they’re full time they might be a little more educated in their responsibilities regarding being open and transparent. And they might have more resources to be able to respond.

So a smaller town may not have the people or resources available?

And many of them are elected officials. And one of the big problems is that in this state, we have this law that every local official is responsible for making sure they conduct meetings properly and in an open manner. They’re responsible for making sure records are properly kept and available for inspection to the public. But yet these elected officials do not go through any training. You can be elected as a selectman in your town and you’re sitting on that board, starting to run the business of your town, and there’s nothing that says you have to even have read the right to know, nevermind know what its contents are. So many times, the new person is following in the path of the other existing board members, and they may or may not have learned all the right aspects of the right to know law.

How has the evolution of electronic communication affected this? Does the public have a right to see a government official’s text messages, for example?

Clearly, we have some local governments following the path of most resistance in trying to make records available, instead of the path of least resistance.

  It’s an area where there’s a lot of conflict. Recently, one of our members of organization Donna Green, who is also a school board member for the Timberlane School District, went all the way to the state Supreme Court to win her case where she asking for electronic records to provided her electronically. For example, let’s say there’s a spreadsheet of a budget. And of course it would be great to get it in a spreadsheet format because there are a lot of things you can do with an electronic spreadsheet in terms of manipulation and analysis that you can’t do if someone prints out the 50-page spreadsheet and hands it to you.

I would also think it would be cheaper to send someone that electronic file rather than printing it out.

Absolutely. Clearly we have some local governments following the path of most resistance in trying to make records available, instead of the path of least resistance.

What advice would you give to citizens who may be seeking to access public records, but are hitting a road block?

The first thing is making sure when you’re filing your request, that you file it in a manner that you reasonably describe the records you’re looking for and not make a request that is too broad because then there will possibly be some pushback and delay because there’s a large volume of records you’re going after. They could refuse the request if it isn’t reasonably described because the law does require that. Be clear, be concise. And if you have some concerns or doubts, we as an organization do provide assistance. The second thing is make sure you ask to inspect the records. We fought long and hard over the last couple of years to get a bill passed where now a person cannot be charged money simply to inspect the record. They can be charged if they want copies. And so if your request is going to yield 500 copies at 50 cents a page, that adds up. And so ask to inspect the records, and after you inspect the records, maybe there’s only a small subset you want an actual copy of, and then pay for the copy fee for those.