House passes bill that could make public records requests costly

By ANNMARIE TIMMINS

New Hampshire Bulletin

Published: 02-06-2024 5:49 PM

Requests for public documents, such as those that unearthed the shady sale of public land in Webster, N.H., and over-inflated taxes in Nashua, could become pricey under a bill that cleared the House on Thursday, but will go before lawmakers again next week for reconsideration.

House Bill 1002, which passed 193-179, would allow public bodies and agencies to charge up to $25 an hour for record searches that take longer than 10 hours. Under the existing right-to-know law, RSA 91-A, local and state bodies can charge for copying records but not record searches.

Thursday evening, Rep. Lisa Smart, a Meredith Republican, filed a request to bring the bill before the House on Thursday for a second vote. If it passes there, it heads to the Senate.

The state’s news organizations, the ACLU of New Hampshire, Right to Know NH, and the Josiah Bartlett Center for Public Policy were among those that urged lawmakers to reject the bill, calling it a threat to public accountability and transparency. 

“The core conceptual flaw in HB 1002 is that it treats public records as government property and access to those records as a burden on government employees,” wrote Drew Cline, president of the Josiah Bartlett Center, in a blog post this week. “In fact, public records belong to all citizens, and government employees are merely custodians of those records on behalf of their citizen owners.” 

Rep. Katelyn Kuttab, a Windham Republican, told the Bulletin in November that she sponsored the bill to address expansive requests that seek hundreds of pages of documents and emails that take hours to fill, often at considerable expense. In some cases, the person or organization filing the requests does not pick up the documents.

The bill’s advocates include Rep. Michael O’Brien, a Nashua Democrat and city alderman. From the House floor, he urged members to pass the bill, saying Nashua provides ample access to governmental doings by televising meetings and keeping detailed minutes of meetings. 

“The thing is, Nashua does not want to limit any right of any citizen to get information,” he said. 

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In fact, the city has been found in violation of the right-to-know law multiple times and was ordered by the superior court judge who heard the cases to undergo remedial right-to-know training. 

In that case, Nashua resident Laurie Ortolano was denied tax assessing records, among others, that she sought after a property reassessment resulted in a steep tax hike. When the city denied the request, Ortolano sued and won. The New Hampshire Board of Tax and Land Appeals ordered the city to reduce its assessment.

Ortolano said her pursuit of city records has cost her nearly $270,000 in legal fees and costs.

Under this bill, she would have paid more because the city spent far more than 10 hours searching records.

Following the passage of HB 1002, Cline said in an email, “Access to public records shouldn’t be a privilege of those with deep pockets.”

A Webster couple sought town records under a right-to-know request that revealed an illegal and lucrative land deal in Webster between the town and the town treasurer. The treasurer was charged and can’t hold public office in Webster again. 

Brendan McQuaid, president of the New Hampshire Press Association, responded to the vote in an email.

“Today the New Hampshire House decided to put a price tag on citizens’ rights and has dealt another blow to New Hampshire’s constitutional right to know,” he said. “The New Hampshire Press Association hopes reason will prevail as the process moves to the Senate and this ill conceived bill can be prevented from becoming bad law.”

In an editorial this week, the Union Leader quoted the state constitution.

“All the magistrates and officers of government are their substitutes and agents and (are) at all times accountable to (the people.) Government, therefore, should be open, accessible, accountable, and responsive.”

The paper raised concerns that municipalities would overestimate the amount of time it would take to fulfill a records request in an attempt to discourage someone from filing one.