The Death of Transparency by Judicial Fiat:

By Jeffrey Thomas Clay

In Jeffrey Clay v. Town of Newmarket, Justice Andrew Schulman delivers a ruling that does not merely misapply the law; it actively subverts the constitutional bedrock of open government in New Hampshire. By upholding a lifetime, blanket ban on a citizen’s right to inspect public records, the court has sanctioned an illegal mechanism for municipalities to buy permanent immunity from public oversight.

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Justice Schulman’s reasoning is a masterclass in judicial contradiction and a dangerous, elitist assault on the Right-to-Know Law (RSA 91-A) that threatens the transparency rights of every resident in the state.

I. The Core Contradiction: Eradicating the Prospective Waiver Doctrine

The most glaring failure in the court’s logic is its outright refusal to apply the very legal doctrine it explicitly defines. Justice Schulman correctly acknowledges the prospective waiver doctrine, citing binding New Hampshire precedent (West Gate Village Association v. Dubois) to establish that a party cannot contractually agree in advance to make a statute founded in public policy inoperative.

Yet, in a display of dizzying intellectual gymnastics, the court declares that this absolute rule magically does not apply to a contract forcing a citizen to foreswear their statutory transparency rights "ever again".

If a private citizen is legally barred from prospectively waiving a simple statute of limitations because it is "grounded in public policy," by what perversion of logic can they prospectively waive a fundamental right to open government expressly guaranteed by Part 1, Article 8 of the New Hampshire Constitution?

By validating this clause, Justice Schulman has ruled that constitutional mandates and legislative acts are secondary to a municipal contract. He has given government entities a blueprint to bypass the legislature and contract their way out of constitutional accountability.

II. Reducing a Universal Public Right to a Disposable Private Commodity

The structural decay of the court’s reasoning stems from its insulting mischaracterization of RSA 91-A as a purely personal bargaining chip. Justice Schulman treats the Right-to-Know Law as if it were a private tort or a commercial contract dispute that can be settled and cast aside for $2,000.

This demonstrates a profound blindness to the civic purpose of transparency laws:

• A Proxy for Public Oversight: When a citizen requests public records, they do not do so in a vacuum; they act as a proxy for the public, ensuring that the machinery of governance operates in the light.
• The Normalization of Pay-to-Silence: By treating this right as a commodity that can be bought and sold, the court establishes a dystopian precedent: wealthy municipal governments can now systematically deploy public funds to bribe, silence, and permanently exile persistent critics and watchdog advocates.

The court has effectively monetized constitutional rights, allowing the state to use taxpayer dollars to insulate itself from taxpayer scrutiny.

III. The Absurdity of the "Alternative Paths" Defense

To justify this sweeping restriction, the court retreats into an offensive, paternalistic argument: the contract doesn't violate public policy because Jeffrey Clay can still watch livestreams, download pre-approved agendas, or ask other state agencies for records.

This reasoning is legally bankrupt and intellectually insulting:

• Accessing the Published is Not Oversight: The right to look at what a government chooses to publish on its website is completely irrelevant to the right to demand what it conceals.
• Irrelevance of Third-Party Remedies: Telling a barred citizen that they can still hire a lawyer to issue subpoenas in a hypothetical civil lawsuit, or wait for the media to ask questions for them, is a hollow mockery of justice.

An alternative path to information does not cure the fact that the individual's personal, statutory mechanism to compel government transparency has been unlawfully eradicated. Justice Schulman essentially argues that it is permissible to cut out a man's tongue, so long as he is still permitted to listen to the radio.

IV. Person-Specific Lawmaking and the Erasure of the Law's Breadth

Rather than evaluating the legality of the clause itself, Justice Schulman weaponizes judicial bias, focusing heavily on his distaste for the litigant's character, using non-legal pejoratives like "buyer's remorse" and accusing the plaintiff of redefining "chutzpah".

This is an abdication of the judicial role:

• The Clause, Not the Litigant, Dictates Public Policy: A proper public policy analysis must evaluate the structural integrity of the clause—which bans a specific human being from ever interacting with a public entity via RSA 91-A again.
• Evading Judicial Duty: By focusing solely on the specific historical records requested post-settlement (emails and legal invoices), the court willfully blinded itself to the sweeping, illegal breadth of the lifetime ban it was legitimizing.

V. The Societal Harm: The Rise of the Accountable-to-None State

The societal harm generated by Justice Schulman’s decision cannot be overstated. It marks the beginning of an era of contractual authoritarianism at the municipal level.

If this decision stands, any town council or school board caught in a pattern of statutory corruption, financial misappropriation, or open-meeting violations can simply enter into a nominal cash settlement with the uncovering citizen, insert a lifetime non-disclosure and non-request clause, and permanently bury the truth.

It creates a fractured society where the law applies unequally—where a town can draw up a list of "troublemakers" and legally bar them from asking how their government is spending public funds, hiring public officials, or conducting public business. Justice Schulman didn't just order "peace" in Newmarket ; he ordered the graveyard peace of absolute executive secrecy, dealing a devastating blow to the foundational principle that government is at all times accountable to the governed.