Contradiction in NH Right-to-Know Law

Anyone contemplating filing a Right-to-Know (RTK) Complaint in New Hampshire has two options: They can file a complaint in NH Superior Court or with the NH Right-to-Know Ombudsman. The choice is a no-brainer: Choose the Ombudsman.

My position has nothing to do with the upfront costs to the complainant in filing a complaint, although the Ombudsman is substantially much less expensive. My opinion is based solely upon fairness.

A complaint filed with the Ombudsman requires the public body or agency to file an answer to the complaint within 20 days. Additionally, the answer must include “applicable law and, if applicable, a justification for any refusal to [produce] or delay in producing the requested governmental records, [to allow] access to meetings open to the public, or otherwise comply with the provisions of [RSA 91-A].”

When you file your complaint in Superior Court, the public body or agency does not need to file any answer whatsoever. Neither do they have to identify applicable law for their refusals, delays, or denials of access to public meetings or any other violations of RTK Law.
On October 8, 2013, NH Superior Court Chief Justice, Tina Nadeau, signed NH Superior Court Administrative Order # 2013-08, exempting Superior Court RTK complaints from six Rules of the Superior Court.

These Rules, 5, 9, 22, 23, 25, and 26, eliminate a public body or agency from having to answer a complaint and prevent the complainant from engaging in discovery. This means the complainant may not submit interrogatories, conduct depositions, or engage in other activities to support their claims. The exempted rules also eliminate a public body or agency from having to automatically disclose documents to the complainant.

The NH Attorney General’s 2015 Memorandum on RTK (available online) extolls the importance of RTK and how public bodies and agencies are accountable to the people. Don't you believe it! Judge Nadeau’s Administrative Order obstructs and prevents the people from holding public officials accountable.

Jeffrey Thomas Clay, M.Ed.